Estate Planning Services Q&A - by Tate Law Offices, PLLC

Estate Planning is the process of anticipating and arranging, during a person's life, for the management and disposal of that person's estate during the person's life and after death, while minimizing gift, estate, generation skipping transfer, and income tax.

Estate Administration is the process of managing an estate (all the money and property owned by the person who has passed away), including gathering assets, paying off outstanding debts, and distributing the remaining assets.

Elder law focuses on preparing an individual, or helping their family, to plan for their financial well-being and care.

A Conservator or guardian of the estate as it is called in Washington, is a person who is appointed by the court to manage the income, property, and finances of a person deemed to be incapacitated or disabled.

Guardianship is a legal process through which an individual or business is given the legal authority by the court to make decisions for another person who is determined to be incapacitated or disabled. Guardianship takes away most or all personal rights from the incapacitated or disabled person.

When set up properly, an irrevocable Medicaid trust can protect your assets from a Medicaid spend down. A properly established irrevocable Medicaid trust will allow your property to be passed down to your family when you die.

Both are useful estate planning devices that serve different purposes, and both can work together to create a complete estate plan. One main difference between a will and a trust is that a will goes into effect only after you die, while a trust takes effect as soon as you create it.

The three major categories that make up elder law are: Estate Planning and Administration including tax questions; Medicaid, disability, and other long-term care issues; and GuardianshipConservatorship and commitment matters including fiduciary administration.

Estate planning is no longer tax-deductible in Washington.

If you are not married, your partner can only receive inheritance from you if you proactively create an estate plan. If you do not do any estate planning, your state’s intestacy statute will determine who will receive your money and property, as well as the amount each legal heir will receive. Washington State intestacy statutes direct that your money and property will go (in proportions determined by law depending on who survives you) to your surviving spouse (if married), to your descendants (children or grandchildren), to your parents, to your siblings, or to your siblings’ children. Without an estate plan, your partner will inherit nothing because state law does not include unmarried partners in their plan. Learn more from our blog on Unmarried Partners and Estate Planning

At your death, the only ways that your partner can continue living in the home are if 1) your partner’s name is on the deed, 2) you owned the home and you executed a transfer-on-death deed giving the home to your partner upon your death, 3) you owned the home and you named your partner as the recipient of your home in your will, or 4) your home is owned by your trust, and you named your partner as the recipient of your home or allow your partner to stay in the home for the remainder of your partner’s life. 

If the home you live in is in your name alone and you fail to do any of these options, your home will be given to your family according to state law, leaving your partner homeless. If your partner wants to keep living in the home, your partner will have to rent or purchase the home from your family during the probate process. This assumes that your family would want to rent or sell your home to your partner, which they are under no obligation to do.

While adding your partner as a joint owner of your accounts and property is an easy way to guarantee that your partner will automatically become the sole owner without any involvement by the probate court, this option is not without its shortcomings. Because your partner will become the sole owner at your death, your partner gets to choose what will happen to the accounts and property, not you. You must trust that your partner will use the money as you intended, as your family will have zero recourse if your partner does not use the money as you intended. In addition, once your partner becomes a joint owner of the account or property, your partner’s debts become your problem. Should your partner be subject to a creditor claim or lawsuit, your jointly owned account or property could be seized to satisfy any outstanding judgment. Finally, if you and your partner break up, removing your partner’s name from your accounts or property could be problematic and lead to costly and emotional litigation if your partner is unwilling to cooperate.