Early after my husband's diagnosis, we went to a lawyer and updated our wills (he leaves all to me; I leave all to him) and durable Powers of Attorney. We have two devoted adult sons who love their dad and mom very much. They've been here for me and for their father during this journey, emotionally, physically, and financially. (What I'm saying is that trust in them is not an issue.) I have read a couple of threads here about setting up financial trusts for care in the case that the caregiver dies before the patient. In my case, I'd feel very comfortable changing my beneficiaries to our sons. I don't expect to predecease my husband, but know that the boys would use the resources I'd leave to take care of him. I think it would make everything much simpler when it came to selling the house, etc. I could talk with an eldercare lawyer, but I know I've got our paperwork all in order. I was wondering...if you were in my situation, would you simply have your will changed so that the kids, not the spouse, if my beneficiary? Any downside that you can see?
Before my dh died we had made our sons the beneficiaries after my death. Our oldest son is now my POA and also POA for health care should I become unable to take care of my business affairs. We made these arrangements early in dh's diagnosis so it was less complicated as he could agree to all. We have a trust and a "pour over will" that states who gets what of our personal belongings after my death. We also have a daughter but she is unable to conduct business but will receive an amount for her care that is stated in the trust. I am POA for my older sister and never thought I'd need to be but after some small strokes she is unable to communicate and I'm "it" now. Never know so early arrangements might be advisable. It was for her.
We have many here who are more expert in the law than I am, and I live in Canada, so estate laws may be different. Also, your age and life expectancy might be a factor in your decision.. You asked what we would do if we were in a similar situation: I am 84, and I would first of all appoint Power of Attorney to both sons, so that they could act for me financially and as health representative. I would ask your husband to do the same, appoint the sons as additional POA. Then the sons could act in both your best interests if you, or your husband, are not able to do so. Since your husband's estate would be left to you upon his death, and yours to him if you die first, your sons would just continue on as is with their POA's. I don't see any benefit in another will (and it will cost more than POA), and I don't see any downside if you don't.
We have it that I am DHs POA and healthcare. Our oldest daughter is backup on his and she is mine. We have 2 children and he has two from a previous marriage. We have been married 30 years. His children see him maybe two times a year. They have not had a real relationship in over 15 years. I will not place them on any legal documents. I have run into issues with his mom and sister. But corrected what they did. So I am always cautious of others questions or attitudes.
U.S. states have different rules, but most states do not allow you to disinherit your spouse. If you don’t leave your spouse a certain percentage in your will, the court can order that the spouse receive a “forced share” or “elective share.” So you really need a lawyer to help you with this.
You are fortunate to have such devoted sons. My husband and I have no children together. His children would not agree to take responsibility for him if I died, so I did not want to name them as beneficiaries in my Will. My siblings agreed to take care of him if I died and I trust them to do this. I ended up naming my siblings as my principal beneficiaries and put the required elective share into a trust for my husband’s benefit in the event I died before he did. That is what our lawyer suggested and it made sense to me.
You can leave your spouse out of your will, but he/she can go to court after you die and "take against" your will, asking for their spousal portion, which runs around one-third to one-half of the estate, depending on various factors. State laws vary, but I believe this is fairly universal.
Joy, I think it would be well worth a consultation with an elderlaw attorney who should be able to give you the pros and cons of the legal arrangement you have now.
Myrtle is right, the US laws require that the spouse is left something...on the advice of the elder law attorney I saw, I leave my estate to my sister and she automatically sets up a trust for my husband with xx amount in that trust. This was designed for 2 major reasons 1) should my husband be qualified for Medicaid, he wouldn't become disqualified upon inheriting my estate and 2) he would not be legally competent to be the executor of my estate, so most likely the courts would need to appoint an executor and possibly a legal guardian for him (we have no children).
My husband is not capable of being my DPOA. Instead, our son is my DPOA. Our elder care attorney had us transfer the house title into my trust. Our son will inherit, and the trust specifies that the funds must be used for husband's care. There was a lot more involved, and your best bet is to see an elder care attorney.
Thank you for all your input. It gave me "food for thought." My husband is far beyond being able to sign anything; I am his POV. I guess the very important thing I left out of the equation is Medicaid. If he does, indeed, go on it (Medicaid) and I pre-decease him, and his is my beneficiary, everything we own together AND all my retirement income would go toward his care. If my boys inherit and their dad is still living, they'd use it for him, anyway. I'd just like it to be at their discretion. I think the wise thing would be to consult the elder care attorney.
Just to clarify because we are using terms which have specific responsibilities. Someone who is designated as a DPOA has the ability to handle both financial and medical affairs (if so designated in the DPOA) for a person who is not capable of making financial/medical decisions for him/herself. A beneficiary is someone who is designated by the owner of an estate or insurance policy (life insurance) to receive the proceeds of that property upon the death of the owner. If here is a will, you need to have designated executors who will distribute the property to your named beneficiaries. It's my understanding that a DPOA can only make decisions for the person who has designated him/her as DPOA while he/she is alive. Once a person is deceased, it is the executor/executrix who distributes the estate according to the provisions of the will or trust.
.....Since we're all talking about wills, trusts, estates, and such, I think someone here may benefit from my little story about what happened to my dad's estate.
.....When my dad was middle aged, his accountant talked him into setting up a living trust, which he did. He and my mother were co-trustees and his six kids were the beneficiaries. Late in his life, after my mother died, he remarried and wanted to include his new wife as a beneficiary along with his kids. He went to his long time friend and attorney to have the trust amended, but instead of amending the trust, his attorney set up a will which included his new wife as a beneficiary but that will completely nullified the living trust. My dad never realized what this meant and none of the family knew about it till after his death.
....Because of the will, rather than the trust, estate taxes, plus probate fees, took a sizable amount from the trust. My sisters and I always thought that his attorney, who was well respected in town and a big shot in our church, planned this purposely just so he could get a few thousand dollars for probating the will. I think the lessoned learned here is that family attorneys don't like living trusts. They feel that they deserve the probate fees from a will.
....Twenty-five years ago Helen and I set up a living trust with our three kids as beneficiaries and after her death I had her name removed as co-trustor. Then I gave my daughter who lives close by power of attorney over me. My accountant told me to keep everything of value in the trust. this included property, bank accounts, and CDs. This avoids taxes and probate fees. My daughter with POA will have access to it if necessary.
....And that's all I really know about this kind of stuff........GeorgieBoy
I thought my elder care lawyer was trying to earn higher fees by setting up a living trust so I said no. Were I to go before my husband, our kids (now 24 and 21) would need a lawyer's help to figure everything out anyway. I will want a very different will when my husband is gone, so I didn't want to set up more than I had to in the "what if I get hit by a bus" will. I did set up half my assets going into a special trust for my husband that would not get in the way of Medicare, with a local accountant as the trustee. The other half (and insurance and other accounts where I name a beneficiary) goes to my kids, with the understanding they will spend some of it to make their father's life better.