By: Renee Q. Boyd – Associate Attorney

Oftentimes when I meet with clients to discuss their estate planning needs or to review their documents, I am asked “If we move to another state, will our documents be valid in the new state?”. 

Generally, the answer is yes.  It is likely that you won’t need to execute new documents when you move; however, it is a good idea to have the documents reviewed when you move to ensure they conform with the state laws of the new state to which you have moved.  States have different laws that govern estate planning and these state-specific estate planning laws can have an impact on your documents.  Therefore, we recommend you have your documents reviewed to determine if any updates are required.

Last Will and Testament

Every state has different requirements for the execution of wills but the good news is that most states will accept out-of-state wills if they were properly executed under the laws of the state when they were created. The probate courts of most states will recognize a will executed in a different state, as long as it was validly executed.  That said, however, it is quite possible that some rules in the new state can differ from those in the old state.

For instance, state laws can vary on the number of witness signatures needed on a will, and whether or not those signatures need to be notarized.  Another issue is the “proving” of the will, which is a sworn statement signed by the maker of the will and the witnesses that attests to the validity of the will.  In some states, probate courts will accept the sworn statement as evidence that the will is valid.  However, not all states allow for self-proving wills.  States also differ regarding which types of wills are valid.  Some states will allow self-written wills but have state-specific rules about how the wills must be written.  

Another consideration involves the Personal Representative or Executor who is named to administer the will.  While most states allow out-of-state personal representatives to serve, they may have requirements for them to be able to serve, such as posting a bond.  Some states put limitations on who can serve as the Personal Representative, for instance only someone related to you by blood or marriage, and many states require that an out-of-state Personal Representative appoint an in-state agent to accept legal documents for the estate.

Revocable Living Trusts

Trusts are governed by contract law, so a revocable living trust, because it is considered to be a contract, is afforded respect by the Full Faith and Credit Clause of the U.S. Constitution.  This makes the revocable living trust portable which means you can move to another state and it should be valid there.  The main consideration with a revocable living trust is that it is funded with the assets you want to pass to your beneficiary(s).  When you move to the new state, if you purchase a home there, you will want to make sure to assign the new property to your revocable living trust and that the deed to the property is drafted accordingly.

Advance Medical Directives

Advance medical directives, also known as living wills or health care proxies, are usually valid across state lines.  Some states have laws that require health care providers to honor legal documents regarding health care wishes if they were executed out of state, however, not all states have provisions that address validity of documents executed out-of-state. This makes it difficult to be sure if the out-of-state advance directive will be honored in the new state.  Because each state has its own provisions and forms, it is recommended that you have an attorney in the new state review the advance directive to ensure its validity.

Powers of Attorney

Similar to advance directives, each state has its own laws that govern granting someone Power of Attorney.  The various states also have their own forms.  Generally, a power of attorney that is valid when and where you sign it will remain valid even if you move to another state.  Although you may not need a new power of attorney just because you have moved, it is a good idea to have it reviewed by an attorney in the new state to make sure that the nuances of the new state’s laws are addressed.

Summary

In summary, your estate planning documents should be valid in the new state if they were properly executed according to all the required provisions of your former state.  But because the laws of each state are different, it is advisable that you have your documents reviewed, and possibly updated, by an attorney who is familiar with the new state’s estate planning laws.  If you intend to permanently remain in the new state, we recommend that you work with the attorney there to prepare new advance medical directive and power of attorney documents.  Also, if a revocable living trust is part of your estate plan, and particularly if you purchase real property in the new state, we recommend having the situs and state law updated in the trust for state income tax purposes.

Renee Q. Boyd is an Associate Attorney with Elville and Associates and a key member of the firm’s busy Estate Planning Department. She partners with clients to educate them and provide them a perfect client experience through the entire estate planning process – along with future maintenance and updating of their planning as changes occur in the laws and their lives. Renee may be reached at renee@elvilleassociates.com, or by phone at 443-393-7696 x111.

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“Elder Law attorneys are not just lawyers, they are counselors.”

Elder Law encompasses many concepts – planning for individuals and families who do not have taxable estates, but who are primarily concerned about the protection of their assets and addressing disability and long-term care issues. Elder Law also encompasses the following: Medical Assistance (Medicaid), long-term care planning, asset protection, nursing home and assisted living selection and placement, special needs planning, guardianship, Social Security issues, Veterans Benefits, senior housing issues, powers of attorney, advance medical directives, wills, trusts, and more.

Join Elville and Associates’ Managing Principal and Lead Attorney Stephen Elville as he leads you through this webinar discussion to learn why an Elder Law consultation is an integral part of the planning process. Attendees will learn:

what is involved in an Elder Law consultation?

why does an Elder Law consultation serve as a basis for change?

what do clients want to know and what do they learn in an Elder Law consultation?

what important Elder Law concepts and new laws are attorneys advising clients about in 2022?

More Webinars from Elville and Associates

The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates.  We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.

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Supported Decision Making (SDM) involves persons with disabilities being able to make their own decisions to whatever extent they can, provided they have enough support to do so. While Maryland’s Supported Decision Making law went into effect on October 1st, SDM is now law in nearly half of the U.S. Supported Decision Making represents a huge breakthrough for persons with disabilities, as it does not take away their rights of self-determination; rather, it allows them to appoint a supported decision maker, even if they are under guardianship. In this powerful webinar presentation, Elville and Associates’ Managing Principal and Lead Attorney Stephen Elville explores Supported Decision Making and its possibilities for families and their loved ones with disabilities.

Topics for discussion include:

– Understanding Supported Decision Making (SDM) – what is it and what is its purpose?

– New Maryland SDM Legislation – effective October 1, 2022

– What is the promise of SDM in Maryland?

– What SDM is not – and what is SDM’s relationship to powers of attorney, advance medical directives, and guardianship?

– How SDM works, and how if can benefit persons living with brain injury

– A review of New Maryland Legislation – effective October 1, 2022

– A review of various SDM agreements (D.C., Delaware, Indiana, Alaska)

– Next Steps

– Questions and Answers

More Webinars from Elville and Associates

The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates.  We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.

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The 2020 Presidential Election is just days away. Former Vice President Joe Biden has said that the estate, gift, and GST tax exemption could be set as low as $3.5 million per individual, while the gift tax exemption could be set as low as $1 million. Candidate Biden has also discussed an increase in the estate/gift tax rate to somewhere in the 45% to 65% range. Biden has also proposed the possible elimination of the income tax basis step-up at death. But regardless of who prevails at the polls, President Trump or Vice President Biden, the potential for tax related changes and wholesale shifts in tax policy is significant (COVID -19 related economic loss, social unrest, potential our shifts in Congress, and more). In this one-hour workshop, Steve Elville will lead a discussion outlining end-of-year strategies and points of concern for clients in the coming year.

Topics will include:

– Identifying the possibilities for tax change

– How will potential tax changes affect clients?

– What strategies are available to clients?

– Should clients engage in end of year exemption planning?

– How will potential tax changes affect estate planning documents?

– Next steps and available resources

– Questions and answers

 

More Webinars from Elville and Associates

The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates.  We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.

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November marks National Family Caregivers Month. Today, roughly 3 million children reside with grandparents who have committed to being their primary caregivers, according to Pew Research Center estimates.

Grandparents may step in when the child’s parents can no longer take care of the child, when the parents pass away, or when a court takes away their parental rights. Without grandparents assuming responsibility, the state might have placed these children with foster families who are not related to the children. When grandparents become the guardians of their grandchildren, children can preserve familial ties, remaining connected to their biological families.

Although caring for a grandchild is rewarding, it can also be challenging, particularly when it comes to finances. Grandparents who are retirees with a decreased income may face the challenge of balancing their grandchildren’s needs, such as clothing, with their own needs, such as medical care. They might even feel they must use their retirement savings to provide for their grandchildren. However, state and federal benefits programs, as well as other resources, are available to help “grandfamilies” facing financial difficulties.

Financial Resources

Several tools are available to support grandparent caregivers with monetary hardships associated with caregiving.

• BenefitsCheckUp — The National Council on Aging’s online resource, BenefitsCheckUp, can help older adults identify federal and state assistance programs for which they are qualified.
  
  Starting with their ZIP codes, users can enter personal information into the tool, and BenefitsCheckUp keeps the information they disclose private. After entering details, the resource generates a personalized Eligibility Results report, which reveals the benefits programs for which they can apply. The tool also identifies areas where program administrators might need more information to determine eligibility. The report can give older adults clarity about which programs they could apply for successfully as well as which programs fit their needs.
   
• TANF — The Temporary Assistance for Needy Families (TANF) program provides funding that states put toward financial assistance for low-income families for necessities such as food, shelter, and clothing. The TANF program varies by state.
  
  In some states, childcare assistance is available in addition to financial support. To qualify for TANF, older adults must have minor children, be unemployed or underemployed, and have a low income. (TANF is also available to those who are pregnant and minors who are the head of their households.)
   
• InsureKidsNow.gov — As an online resource for families, InsureKidsNow.gov offers information about getting children low-cost or free health care. Medicaid and the Children’s Health Insurance Program (CHIP) give free or inexpensive health care to minor children whose families meet state financial eligibility requirements.
  
  As a grandparent caregiver, you can use InsureKidsNow.gov to explore health insurance options for your grandchildren, including mental and behavioral health and dental care. The Dentist Locator, for instance, can help you find a local dentist who accepts Medicaid and CHIP. The website also has vaccination outreach resources.

Legal Support

In addition to financial constraints, caring for a grandchild can raise other concerns. Grandparents who are primary caregivers may have anxieties about their legal rights, especially when children are involved in the foster care system. Caregivers might also have particular questions and worries if a child has a disability or is diagnosed with a severe illness.

• Grandfamilies.org — An online information center, Grandfamilies.org supports families where grandparents are the main caregivers, providing facts about state and federal laws. The website has a searchable database of the regulations impacting “grandfamilies” — families with grandparents as immediate caregivers.
  
  The directory covers all states and includes information about children who are part of the foster care system. Grandfamilies.org’s Law and Policy Center offers information to help you understand and navigate the legal system. The website’s publications and topic library contain information about issues affecting families where grandparents are responsible for children, such as adoption and kinship foster care.
   
• Caregiver Action Network —As a digital library and chat center, Caregiver Action Network supplies information about caregiving and helps individuals connect with others facing similar situations.
  
  When you sign up for the Care Chat feature, you can communicate with other caregivers online, asking questions and posting messages and responses. The resource includes information about caring for children with disabilities and illnesses such as cancer. As part of its toolbox for caregivers, Caregiver Action Network also has a directory of financial and legal resources. You can also ask the Caregiver Help Desk questions and receive personalized responses.

This holiday season, if you are a grandparent who serves as a caregiver for a minor, or know someone who is a part of a “grandfamily,” consider connecting with your elder law attorney to learn more about resources available to you.  The elder law attorneys with Elville and Associates will work with you to understand your family situation and dynamics, answer your questions, offer guidance, and create a path forward and solutions to your situation, offering much needed peace of mind along the way.  Contact us here to learn more or schedule your initial consultation. 

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November marks National Family Caregivers month. Studies show that looking after those with special needs exacts a toll on caregivers. This holiday season, shift your focus and remember that you must take care of yourself if you want to continue caring for others.

As the saying goes, “you can’t pour from an empty cup.” If you have been a caregiver for a loved one with special needs or chronic illness, ensure that you are healthy physically and mentally. Here are five tips that can help you prioritize self-care.

1. Know Your Limits. 

It is admirable that you are caring for a loved one with special needs, but you must keep your abilities and skill set in mind. Even if you are a health care worker, you still may need to contact professional help in some situations. 

Create and maintain a good relationship with your loved one’s medical team, and do not hesitate to contact their doctor when something is beyond your ability.

2. Try to Avoid Burnout.

The subject of burnout usually centers on stressful jobs that essentially cause workers to lose themselves in their work. Caregivers also face the risk of experiencing burnout, and the chances of burnout may be greater because some caregivers do not think they can stop working.

Burnout is mental, physical, and emotional exhaustion, which can come about for many reasons. Causes of burnout include:

• Trying to live up to unrealistic expectations, whether they are your expectations or those of family or friends.
• The inability to control your loved one’s condition, particularly if their condition worsens over time.
• Feeling unable to separate your role as your loved one’s spouse, partner, parent, child, or friend from the role of their caregiver. Setting boundaries is an essential part of making this distinction.

3. Lean Into Your Support System.

Part of caring for yourself is learning to delegate responsibility. It is impossible to do everything alone and maintain good mental health. If you have family members willing to take on some of the work and responsibilities of caring for a loved one with special needs, let them!

Similarly, make an effort to express your concerns and anxieties to your family and friends. Caring for a loved one with special needs is very stressful, no matter how rewarding in some respects. Remember that you are only human; it is OK to need a shoulder to cry on, a listening ear, and someone else to take charge for a while.

4. Create a Support System If You Don’t Have One.

If you do not have family support, create a support team by reaching out to other caregivers for loved ones with special needs. Various resources are available to help you create a network to lean on when caring for a loved one with special needs becomes overwhelming. 

Among the online and in-person groups that provide emotional support, offer tips about caring for a loved one with special needs, and can point you in the direction of community resources if you need help caring for your loved one are the following: 

• Different Dream
• Mommies of Miracles
• The Arc
• The Caregiver Action Network 

5. Plan for the Future.

You cannot hold the reins forever, and you know that there is a possibility that you will need to choose someone to act as your special needs loved one’s caregiver in the future. The thought probably causes anxiety and contributes to your overall stress level. To alleviate that anxiety, start planning. One way to plan for the future is by creating a Memorandum of Intent.

A Memorandum of Intent guides future caregivers so that they know how to care for your loved one with special needs properly. You can include any information you think will be helpful for them, including a list of your loved one’s medications as well as their likes and dislikes, contact information for health care providers, their schedule of daily activities, and so on.

Take Care of Yourself This Holiday Season

This holiday season, remember that your loved ones are thankful for your care and attention. You owe it to yourself to be easier on yourself. Let your time with your family and loved ones remind you that you are not in this alone and you do not need to do everything on your own. Fill your cup with those around you, and you will see that you can better care for your loved one with special needs.

Stephen Elville, Managing Principal and Lead Attorney at Elville and Associates can work with you to devise a strategy that works best for your family and your loved one with special needs.  As an experienced special needs planner and someone passionate about helping individuals and families with loved ones with special needs, Mr. Elville guides families and individuals through all matters related to caring for loved ones with special needs, including the planning process through client education, counseling, and leading-edge legal-technical knowledge, creating solutions to their needs and peace of mind along the way.  Contact Mr. Elville here or reach out to his Executive Assistant, Mary Guay Kramer, at 443-741-3635 or at mary@elvilleassociates.com to schedule a free initial consultation today.  

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A power of attorney is a document that grants various powers and responsibilities to a trusted third party or “agent” who can act on your behalf. This document usually only allows an agent to make non-medical decisions on your behalf. A power of attorney can be a valuable planning tool that lets you decide in advance who will manage your affairs should you become unable to do so. It can also be a way to avoid expensive guardianship or conservatorship proceedings if you become disabled or incapacitated.

The way a power of attorney is formalized varies from state to state. Some states have particular requirements and wording that must be in a power of attorney for it to be valid and accepted. You may have heard of the terms “springing” and “non-springing” power of attorney and wonder what they mean.

Springing Power of Attorney

A springing power of attorney is a document executed now, but that does not take effect unless the principal becomes incapacitated or a particular event occurs. This type of power of attorney is contingent on something specific happening before it comes into force. If the event or incapacity never occurs, an agent will not be empowered to act on behalf of the principal.

Many people want a springing power of attorney because they feel more comfortable knowing their agent can only exercise powers if a triggering event occurs. This can alleviate any concern that the agent may try to misuse a power of attorney.

A springing power of attorney is not always easy to use. Depending on your jurisdiction, it may be necessary to have a medical professional such as a doctor certify that a triggering condition has occurred.

Let’s say you become medically incapacitated. Where required, the professional will likely have to complete an affidavit attesting to your condition or that certain events occurred. Often, a medical professional will not be comfortable signing an affidavit or may require their own attorney to advise them on how to proceed. This can cause delays that can frustrate an agent’s ability to act, especially in time-sensitive situations.

Additionally, financial institutions may be reluctant to accept this type of power of attorney because it is difficult for them to judge whether you truly are incapacitated or if a triggering event has in fact occurred. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the individual indeed has the authority to act for the principal.

Non-Springing Power of Attorney

With a non-springing power of attorney, the agent has the powers granted in the document the moment it is signed by you and the agent(s) you designate. So, even if you are capable of signing for yourself or handling certain transactions, your agent could still sign for you without your involvement.

How Some States Approach Powers of Attorney

Many states have taken steps to address some of these problems. New York, for example, implemented a statutory form in 2021 that, if filled out and executed correctly, financial and other institutions will be more likely to accept. In particular, it has a provision where the agent agrees to reimburse the third party for any claims that may arise against the third party because of reliance on a power of attorney.

To help limit the potential for abuse by an agent, New York’s form also allows a power of attorney to be narrowly tailored to a specific purpose.

The laws of each state will vary when it comes to powers of attorney. For guidance on a Maryland springing or non-springing power of attorney, consult the experienced estate planning attorneys at Elville and Associates.  They will partner with you to devise a strategy for your power of attorney and other estate planning documents that suit your situation.  As experience estate planners led by Managing Principal and Lead Attorney Mr. Stephen Elville, you’ll be guided through all matters related to the estate planning process through client education, counseling, and leading-edge legal-technical knowledge, creating solutions to your needs and offering peace of mind along the way.  Contact Mr. Elville here or reach out to his Executive Assistant, Mary Guay Kramer, at 443-741-3635 or at mary@elvilleassociates.com to schedule a free initial consultation today.  

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Join us in our next installment of the Elville Webinar Series’ Wellness Series featuring Dr. Michelle Fritsch and Ms. Ellen Platt to discuss purpose and meaning.

 

The discussion will include paring down your “to-do list” and eliminating unfocused “busyness” to make room to hone in on the important aspects of our lives – to find fulfilment and meaning in what we do.

More Webinars from Elville and Associates

The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates.  We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.

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Elville and Associates’ Managing Principal and Lead Attorney Stephen Elville offers this webinar discussion about the very important topic of how to select a Trustee. Choosing a Trustee is one of the most intensive pieces of the estate planning process, and a choice not to be taken lightly. Ensure you’re educated about all the factors that go into making this important decision.

 

Points of emphasis include:

– What is a Trustee and what are their responsibilities?

– Types of Trustees and their characteristics – advantages and disadvantages

– The perfect Trustee – setting the benchmark for selection

– Trustee selection – why is it so important?

– Trustee succession and plan design – why so difficult, why so crucial?

– Trustee roles in Wills and Trusts

– What are some reasons to consider appointing a Corporate Trustee?

– Why should you be concerned about “Successor Trustee risk”?

More Webinars from Elville and Associates

The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates.  We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.

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Identity theft occurs when someone uses another’s personal identifying information, like their name, social security number or credit card number, to commit fraud or theft. Identity theft is one of the fastest growing crimes in the United States. A 2021 Javeline Strategy study estimates Americans lost a total of $56 billion dollars in Identity Theft scams. These alarming statistics demonstrate identity theft may be the most frequent, costly and pervasive crime in the United States. This presentation will cover the various types of identity theft, to include child ID theft, medical ID theft, tax ID theft and data breaches. The ease of accessing our personal information online and through public information resources will also be discussed.

Your presenter is Mr. Andre Lingham, Founder and President for the Center of Elder Justice and Education and a distinguished retired Howard County Police Officer. The Center of Elder Justice and Education was established in 2021 and is a non-profit organization that promotes elder abuse awareness and education. Their mission is done by virtual and in person training to senior citizens, the general public, government agencies, police departments and private institutions.  Andre previously served over 30 years in law enforcement and retired from the Howard County Police Department in 2019 to focus full time on elder abuse awareness and education. While a member of the Howard County Police Department, he served as the Senior Citizen Liaison for 5 years. In 2014, Andre was named Howard Police Officer of the Year and 2015 American Legion Law Enforcement Officer of the Year for his work educating and protecting seniors

More Webinars from Elville and Associates

The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates.  We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.

#elvilleeducation #elvillewebinarseries

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