Who needs a probate lawyer?

Everyone at some point could use the help of a probate attorney.  If you don’t already have one, a Will, a Living Will and a Power of Attorney are standard documents everyone should create in case of an emergency.

The best control of your own probate outcome is estate planning. If you have some property and assets, and if you have any family (a spouse, children, ex-spouse, etc.), a Will is needed, and needs to be kept up to date to protect your loved ones, and to provide clarity as to how your assets and property are to be distributed after your death. Probate is most time-consuming, stressful and costly (in legal fees) when not planned in advance with a Will and supporting documents. 

You or Someone You Know:
If you or someone you know has recently lost a loved one, was/are named an executor of an estate, is/are an heir to an estate and concerned about how the Estate is being handled, then a Probate Attorney is a good contact for you. The initial consult is typically at no cost, to set expectations as to the processes and any costs that will be needed. 

When should I consult with an Elder Law attorney for myself?

Elder Law is the management of your affairs as you enter your non-working years (due to accident or retirement), or when you are near end-of-life planning for your assets, property and loved ones.  The cost of a nursing home, assisted living, or staying at home with assisted-living services can all be planned for, and financed. An Elder Law attorney would be an ideal first point of contact for information, planning and coordination of planning with others, such as CPA, financial planners, health care managers, etc.

If you have a significant estate, the creation of a Trust may protect some of your assets from being taken.  Tragedies happen to people every day, and early planning for these events can also serve you into later life as one retires, needs assisted living or nursing home, and possibly the use of Medicaid to pay for this care. 

If you are elderly and need to be in a nursing facility, and have no funds to pay for it, Medicaid is there as a backstop; but rules must be followed for eligibility, and the rules can be complex. Or, if you question if you should be a nursing or assisted-living facility … there is only benefit and no risk in asking. An experienced Elder Law attorney is a wise point of contact for information, insight, direction, assistance and coordination with all other parties. 

When should I  consult with an Elder Law attorney for my mom, dad or both parents?

As early as possible.  There is a 5-year look-back on any assets which get placed in a Trust, making them subject to being utilized to pay for care. Therefore, if parents seek to protect assets, discussion and planning should happen at the earliest opportunity.

If it is now time to place your parent(s) into care, then you need to know what preparations and documentation are already in place, or not in place, and therefore what remains to protect them while ensuring that the funding of their care is planned and secure. 

What is the process of petitioning for guardianship in Kentucky?

In Kentucky, there are three steps in petitioning for guardianship on behalf of someone (the “respondent”) who is felt or perceived to need a guardian, i.e. someone at risk of being exploited.  An emergency guardianship can be sought as part of this process if a true emergency exists.  In either case, the steps are as follows:

  1. The filing of a petition and filing out an application to be guardian if that is what you seek
  2. The examination of the person in question (the “respondent”) by three medical experts, and the holding of a trial to determine if the person is fully disabled, partially disabled or not disabled at all in their personal and, separately, in their financial affairs.
  3. The holding of a hearing to determine who the Guardian will be, if one is necessary.

Multiple applications to be guardian can be filed, and the court will determine the best person for the role.  The Court will appoint a “Guardian Ad Litem” to represent the interests of that being petitioned for.

Do I need a lawyer to do my will?

No, you don’t need an attorney to do your Will … But, Wills are legal documents that need to meet legal standards as set forth in the Kentucky Revised Statutes. A hand-written Will can be deemed not able to be submitted to probate if those rules are not strictly followed.  That said, a person does not need a lawyer to write their Will, but the expense of using one is not usually great, and it assures one that a Will can be probated at the appropriate time.

Why would I need an estate planning attorney?

Bottom line, you need an estate planning attorney because you have an Estate of a financial size which requires planning, or is required to be used for your healthcare (as a condition of access to Medicaid funds) instead of going to your heirs.  Inheritance taxes are not the issue they formerly were, as the levels for tax have been raised well beyond the assets of most people.  But paying for care can be extensive, as with skilled nursing care.  Maybe the formation of a trust is the right thing for you to do, and maybe not, depending on your needs and goals.  At the very least, a review of your situation by an expert is important, so that you have all the facts with which you can decide what kind of planning you need, if any.