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FREQUENTLY ASKED QUESTIONS

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DISCLAIMER. THE INFORMATION CONTAINED HEREIN IS DESIGNED TO BE INFORMATIONAL ONLY AND SHOULD NOT BE CONSIDERED AS LEGAL ADVICE. PLEASE CONSULT YOUR ATTORNEY OR OTHER QUALIFIED PROFESSIONAL ADVISOR BEFORE TAKING ANY LEGAL ACTION.

Below are listings of a few of the Most Commonly Asked Questions that we receive on a daily basis. This is not a comprehensive list and your question may not be addressed. However, we hope that this information will be useful to you. Obviously, these questions and answers are very generic by nature. Your situation is very unique and deserves individual attention. Please call us for a Free 15 minute telephone consultation so you will know the answer and not have to guess.

1. What is Elder Law?
2. How do I keep the Nursing Home from taking my Mother's house?
3. What is Medicaid?
4. Who administers the Medicaid program?
5. Why should I have a will?
6. What is the disadvantage of a will?
7. What is probate?
8. How long does probate take and how much does it cost?
9. What is a Revocable Living Trust?
10. When should I not use a Revocable Living Trust?

1. What is Elder Law?

Elder Law is a broad body of law covering many areas that affects seniors. It covers everything from Estate Planning for the Elderly, Guardianships, Medicare Issues, Medicaid Issues, Nursing Home placements, Nursing Home abuse of their patients and the resulting claims that stem from these situations, and many other issues. Go to Top

2. How do I keep the Nursing Home from taking my Mother's house?

A person's HOME is an exempt asset in Arkansas. This means that a person going into a Nursing Home can still keep their home and still receive Medicaid (if they are other qualified) which will pay for their long term care stay. However, DHS may collect the amount that they have paid in Medicaid payments to you after your death by electing to "re-coup" against the house. This means that after you die, they may sell the house and recover any money that they have spent on your behalf in Medicaid payments. Go to Top

3. What is Medicaid?

Medicaid is a cooperative, federal - state, program. It was designed to meet the financial expense of medical services for the elderly, blind and disabled poor in Arkansas. Medicaid provides a wide range of benefits, including acute medical care, medications, outpatient treatment and long-term care. Go to Top

4. Who administers the Medicaid program?

The money to fund the Medicaid benefits comes from both the federal and state governments. Arkansas has designated the Department of Human Services, Divisions of County Operations and Medical Services (DHS) to administer the Medicaid program in our state. The eligibility requirements and administration of the program are handled at the state level, subject to the oversight of the federal Health Care Financing Administration (HCFA). Go to Top

5. Why should I have a will?

A major advantage of a will is that it allows you to designate the person(s) who are to receive your estate at your death. You may have heard the old saying, "If you don't have a will, the state has one for you". The state does have a descent and distribution statute that provides for the distribution of assets for those people who die intestate (without a will). The problem is that the state's plan may be good for some and disastrous for others. One size doesn't fit all. However, if you don't have an estate plan in place prior to your death, you forfeit your right to choose. Another good feature of a will is that it allows you to specify the person who will administer your estate at your death. Once again, if you don't make the decision, you forfeit your right to choose. Chances are the Judge will approve whoever asks the Court for the job – and it may not be the person that you want! Go to Top

6. What is the disadvantage of a will?

The major disadvantage of a will is the Court process, which happens after your death called Probate. Probate is the process of proving the will and is usually the only legal way to change title of assets from one generation to another. Go to Top

7. What is probate?

Probate is the legal process of changing title to assets. Usually it is the only way to change title from one generation to another. Since the proceedings take place in the probate court or the county where the deceased resided, this proceeding is usually referred to as "probate". There is usually no probate when the first spouse dies. Why? How do spouses generally hold title to assets jointly? So, when the first spouse dies, everything passes by operation of law to the surviving spouse. However, when the second spouse dies, that is when the probate process begins. For a more complete description, ask for our newsletter on probate (Estate Planning Basics 102. Go to Top

8. How long does probate take and how much does it cost?

Probate usually takes from 9 – 24 months and costs an average of approximately 3% of your estate to complete. Obviously the time and cost to complete the process could be more or less depending on the complexity of the matter, but these are good averages. The process takes this amount of time since the executor must get the court's approval in advance prior to taking any action to settle the estate. The probate (lawyer's) fees are set by state statute. Go to Top

9. What is a Revocable Living Trust?

A Revocable Living Trust is one of the basic estate planning tools that should be considered when a person is preparing their estate plan. Usually a person weighs the pros and cons of will vs. trust when deciding what to do. “Revocable” means just that – once you establish a revocable trust, you can revoke or cancel it at any time. Since you are the Trustor (owner of the trust) you are in full control of the document and can maintain or do-away-with it at any time without asking the permission of anyone. “Living” is an English version of the Latin term, inter-vivos (which means "living"). This means that the trust was established and funded during your lifetime, as opposed to being funded at death. A trust funded at death is called a testamentary trust, which is a trust contained in a will. Assets of a testamentary trust are titled over to the trust at your death, which requires a probate proceeding. As discussed in one of our newsletters, this is usually not desirable since it is normally expensive, time-consuming and can be avoided by setting up and funding a revocable living trust during your lifetime. Go to Top

10. When should I not use a Revocable Living Trust?

If you have a very complicated estate and need the hands on involvement of a court to "untangle the mess", then you should have a will and go through probate. Additionally, in certain Elder Law or Special Needs situations where the law only allows certain protections if a person has a testamentary or special needs trust contained in a will, that is the only option. Go to Top