Elder Law Report
Elder Law Report
Halloween Estate Planning: Tricks And Treats
A Halloween greeting sets the stage for a conversation about the real scares families face: probate, guardianship, and the high cost of long-term care. We unpack how to turn those fears into treats by using practical tools that keep control in your hands, protect your home, and speed assets to loved ones without a courtroom drama.
We start with the case for avoiding probate. A thoughtfully drafted revocable trust preserves privacy, directs distributions on your terms, and helps sidestep creditor and benefit recovery claims. For the family home, we explain how a Lady Bird deed (enhanced life estate deed) lets you keep full control during life while ensuring the property vests immediately in your beneficiaries at death. Add payable-on-death designations to bank, IRA, and life insurance accounts to keep funds outside the probate estate and in the hands of the people who need them most.
Next, we draw a clear line between comprehensive powers of attorney and the turmoil of guardianship. Guardianship fights can turn personal and public, pitting relatives against each other in court over capacity and control. Strong general durable and health care powers of attorney, supported by a living will, prevent that spiral by naming who acts for you the moment capacity slips. The result is faster decisions, private management of finances and care, and a huge reduction in costs and conflict.
We close with the underrated reward of planning: peace of mind. By structuring ownership and beneficiary designations wisely, you can qualify for long-term care benefits without sacrificing your home or retirement. You avoid the most common traps—public probate, contested guardianships, and rushed, do-it-yourself fixes—while giving your family clarity and calm when it matters. Want help turning tricks into treats? Book a free consult at 1-888-999-6600 or schedule at mcelderdall.com/scheduling. If this conversation helped, subscribe, share it with a friend, and leave a review so others can find it too.
Happy Halloween, Jane. Hi there, Greg. Happy Halloween. Jane, treat your family. Don't trick them with the gift of estate planning. Okay. You want that in your your bucket when you're trick-or-treating, not the bad stuff, okay? Right? You don't want it the tricks. So coming up to this Halloween, I'm thinking of the tricks and the treats. There are three treats that I can think about for estate planning, and that's avoiding probate and why, avoiding guardianships and why, and qualifying for long-term care benefits without losing your house and savings. Three tricks that we're going to cover in today's Elder Law report are a trick of guardianship, the bad thing, a trick of losing assets, your home, your retirement due to the high cost of long-term care before you can qualify for a benefit to pay for it. And the trick and dangers of probate. So, Jane, I'm going to take them one at a time.
Jane Dearwester:Yeah.
Greg McIntyre:Because it's a treat to talk to you today on this Elder Law report and to be able to come to our audience and our clients and everyone else out there to talk about estate planning and the dangers and the safety of it. So let's talk about the treats first, and then we'll talk about a trick. Okay. We'll take them. I think I'm going to match them up and go one by one. So treat is avoiding probate, easy distribution of assets, avoiding creditor claims, long-term care claims, passing assets when you pass away to your loved ones instead of losing them. Let's talk about that. Jane, how is avoiding probate? How could how can how would you set up an estate plan or how do you think an easy estate plan would be set up to be easy to pass assets?
Jane Dearwester:Yeah, the best way to avoid probate is by setting up a trust, right? That takes everything out of probate and takes takes the um opportunity away from creditors and others to try to attach your assets to pass through your probate estate. So if you do some estate planning, set up a trust, do some trust planning to protect your assets, not only is your trust a private document that does not get filed at the courthouse like your will does, but again, you have so much more control over those assets even after you're gone by setting up that trust. Another great thing is the Ladybird deed or enhanced life estate deed to protect your real estate. For most people who come in, their real property, their primary residence is their number one concern. That is the thing they worked hard for. There's history in, there's family history in that home. It's where everybody goes for Christmas, it's where everybody goes for the holidays. And so people want to preserve that and pass that on to their family members. You can do that with a ladybird deed that goes directly to your beneficiaries, passes outside of probate, no probate tricks. It immediately vests in your heirs upon your death and can't get much better treat than that. Avoiding probate and uh other than trust planning, ladybird deed is setting up your financial assets to have payable on deaf beneficiaries so that your bank accounts and your IRAs and life insurance that all those things pass directly to your beneficiaries.
Greg McIntyre:Okay. That was amazing, by the way. That was great. You matched up the treat and the trick and and and showed why it's easy to pass assets if you set them up right in estate planning and open yourself up for long-term care benefits and uh protect your home in retirement and avoid the trick of probate where you could lose those assets, especially if you've had a benefit pay for long-term care. So, next one putting in place the treat of estate planning. I like to say estate planning and elder law is as much about protecting you or more about protecting you during your life and making things easy than even afterwards and passing assets, right? So putting in place general durable power of attorney, comprehensive, you know, general durable powers of attorney, healthcare powers of attorneys, living wills, and avoiding the trick or perils of guardianship, the failure to be proactive and name who handles things for you. Why is that such a treat? And why is guardianship considered could be considered a bad thing or result in not what you want?
Jane Dearwester:These are just so important in the guardianships that we handle. I really have seen families really get torn apart when they're fighting over who's going to be the appropriate guardian, or even fighting over whether or not mom, dad, grandma, grandpa is in fact competent. Some family members might think they are competent, others may not. So, how that plays out in a guardianship proceeding is all that information truly becomes public and plays out in a public space in a courtroom where these are all decisions that could be made in a private space in our offices when we're drafting your general durable power of attorney, healthcare power of attorney, living wills, so that you get to make choices that, hey, if something happens to you and you lose capacity, you already have somebody named who can immediately act for you, do whatever's necessary for your finances, your real estate, and also for your healthcare decisions. So without those documents in place, you really leave yourself open to tricks and all kinds of peril with having to deal with guardianships, not to mention the expense of guardianships.
Greg McIntyre:Gosh, I mean it's it's it's not even comparable. No, how how efficient the use of your money is and and and come when on a general dribble power attorney and healthcare power attorney, planning ahead, right? Planning ahead, studying for the test ahead of time, not cramming the night before. It's so costly and time consuming. And the result might not be what you desire. Jane in contested guardianships, you might have some stinking attorney that's appointed over you and your assets, and the court might have a really different idea about what should happen to your assets or loved one, you know, retirement, house, things like that, you know, compared to what you really wanted to happen to support your spouse, family. Um, just so much peace of mind and safety and proactive planning like that, right?
Jane Dearwester:Oh, yeah.
Greg McIntyre:And great job explaining that. Um treat third, last but not least. Protecting your home and savings versus probate in general, okay? Protecting your home and savings versus probate. I feel like we tackled that one really in the first one. I think you did a two for one there, but really I'll recap on that one and just say the only place in North Carolina where a claim can attach is in probate. So I don't want to say probate's the biggest trick or so bad. We handle a lot of probate cases. But best laid plans, we would avoid probate, avoid any claims of creditors and leave you open for long-term care benefits using tools like Jane proposed. And I would say that leads into what really is probably should be the third treat, which is peace of mind. When you're sitting with peace of mind, um, the trick would be trying to go do it yourself. Trying to do it on the interweb. Trying to do it, you know, um, figure out all these complex choices and what needs to happen with money and property and how it works with the benefits world yourself. Um that's gotta equal a lot of stress, Jane. Oh yeah, a lot of uncertainty. Only in the end to have to come to us to have to fix a problem instead of coming us to us on the front end to set the problem up or the to set the the stage, I guess, for to solve the problem, set solve it early, and you proceed through life forward with peace of mind that you protected your assets and open yourself up for long-term care benefits, right? Those are my thoughts on the really the last treat and trick. It would be the the perception of maybe having tried to fashion something together or ignoring it. That's another trick. That if I ignore it, it's gonna go away or it's not real. It is real, life is real, and as amazing as I feel right now, and I'm gonna live to be 150 and then get frozen. Life happens. I am going to die, and I need to plan, right? And I don't like to think about it. It sucks.
Jane Dearwester:Nobody does, nobody does, but it's real, yeah.
Greg McIntyre:So I hope that you, Jane, have a happy Halloween season, and and you know, um, I would urge everyone out there to do so as well. Hope you and your family do stay safe and have some fun. But also, um, on a serious note, if you or your loved ones, your family would like to sit down and and talk to our great attorneys, of which Jane is one, okay. Um, please give us a call. Um, we'd offer a free consult to sit down and discuss your issue and help you gain peace of mind and have all the treats and avoid the tricks. Okay, this Halloween. You can schedule that by calling 1-888-999-6600 or scheduling online at mcelderdall.com slash scheduling right on our calendar. Okay. Thank you so much, Jane. Thank you. See ya. Cheers.