Requirement 1: You must be able to win something.

Let’s say a rich neighbor of yours dies and leaves behind a Will. Can you go to court and challenge it? Unless you stand to gain something from a court declaring the Will invalid, the answer is no. Essentially, you will have to be able to win something if you prevail in your Will challenge to be able to challenge a Will in the first place. This means that you would have to inherit more property if either there was no Will, or if the court agrees to adopt a previously written Will.

Requirements 2: You must have a specific reason.

Even if you stand to inherit something if you can show the Will is bad, you have to have some sort of factual basis to make your challenge. This is known as having “grounds.” The legal grounds to challenge a will vary depending on your state and the circumstances, but they all essentially boil down to you proving that the person making the will failed to meet the state’s legal requirements for will creation.

Requirement 3: You have to go to court at the right time.

You must ensure that you file the challenge at the right time, even though the right time can differ between states and depending on the circumstances of the case. In general, you must wait until the testator–the person who wrote the Will–dies in order to file a Will challenge. After that, you must file your challenge before the deadline imposed by state law.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Issue 1: Who will make your health care decisions for you?

No one likes to think of the possibility of becoming so sick or injured that you need someone else to make your medical decisions for you. But this does happen, and when it does who has the right to make those decisions? If you’re married, the answer is simple: your spouse. If you are an unmarried couple, the question is more complicated. Your partner may not have the right to make decisions, and it will eventually fall to a court to decide. You can, however, take steps now to give your partner the right to make decisions by creating a medical power of attorney or health care proxy. Once you make this document and ensure that it complies with state laws, you can choose whomever you wish to make medical choices for you in case you’re incapacitated.

Issue 2: Who will make financial decisions for you?

In the same way that someone will have to step in and make your healthcare choices, someone will also have to be responsible for your finances and financial obligation. The same laws that apply to healthcare decisions apply the financial ones, and it is not automatically your partner who will have this right. Again, you can give your partner this right if you create a financial power of attorney that will take effect once you become incapacitated.

Issue 3: Who will inherit your property?

Cohabitating couples that have lived together for years or even decades have no automatic right to inherit from each other should be other die. The law states that unless you are married your property will pass your children, parents, siblings, or other family members who survived you. It makes no provisions for cohabitating couples. In order to ensure an inheritance you will have to create a will or other estate planning strategy to leave your partner your property.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

While the increase in obesity in America has been widely reported, fewer people realize that this population growth is spurring a significant increase in the cost of healthcare, insurance premiums, and Medicaid expenditures. It’s estimated that about 34% of Americans are considered obese, while another 6% are considered morbidly obese. Obesity, amongst other negative consequences, causes many workers to miss work and incur more healthcare costs.

Recently published studies show the pervasive nature of the cost increases associated with obesity. For example, the average non-obese person spends about $500 a year on healthcare costs, while the average obese person spends more than $3,200 per year. This increase in spending associated with obesity accounts for 20.6% of all the money spent on healthcare in the United States every year.

The healthcare costs associated with obesity are not solely paid by the obese themselves. Studies show that the non-obese also end up paying for this increase in health care coverage through increased health insurance premiums and through higher Medicaid expenditures. The average obese woman, for example, raises “third party” medical expenditures I about $3,220 per year, while an obese man increases those expenditures by almost $970 per year.

In an effort to curb the soaring costs, policymakers are coming up with new ways to provide incentives and punishments. For example, the 2010 healthcare reform law gives an employer the right to increase an obese person’s health care premiums by between 30% and 50% if the obese worker does not participate in a wellness program.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

After a journalistic career that spanned decades, newsman Mike Wallace died several weeks ago at the age of 93. What few people know is that the combative and tenacious journalist suffered from dementia in his final years, robbing him of much of his mental acuity. Dementia makes it incredibly difficult to manage your own affairs, though there are specific estate planning steps you can take now to ensure no problems will arise if the same happens to you.

Lesson 1: Living Wills

People suffering from dementia or Alzheimer’s disease are often unable to make knowing choices. To ensure that your medical decisions are met in this situation, you can create a living will that details the kind of care you want to receive. A living Will is not the same as last Will and testament, so you must be sure to create both.

Lesson 2: Powers of Attorney

While a living Will sets out your desires, you can also create a power of attorney to give someone else the right to make decisions on your behalf. Powers of attorney are typically differentiated into financial and healthcare. This way, you can give other people the right to step in and make choices when you lose your ability to do so.

Lesson 3: Time Is a Factor

Regardless of how old you are it is important to create these estate planning documents as soon as possible. If you become mentally incapacitated you will lose your ability to create these documents, perhaps permanently.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Question 1: Do I need to have my Will notarized?

No. No state requires you to sign your Will before a licensed public notary. While you must sign your Will, and have it signed by two competent witnesses, having a notary sign it will not make it any more or less legal. If you wish to sign your will in front of a notary you can do so, but it is not a substitute for having your Will signed by the required number of witnesses.

Question 2: What is a self-proving Will?

A self-proving Will is one that is accompanied by a sworn affidavit from the two witnesses who signed the Will. The affidavit states that the witnesses are who they say they are and that they witnessed the testator signing the document. When the Will is accompanied by the self-proving affidavit the court will not have to call the witnesses to testify that they saw the testator sign the Will.

Question 3: Does having a Will notarized make it legal?

No. A Will must meet specific state requirements in order for a court to determine that it is legally valid. You cannot simply take any document, call your Will, and have it notarized. If you do, a court Will determine that your Will does not meet the legal standards and will not use it when it comes time to distribute your estate assets. Instead, the court will use your state’s laws of intestate succession and ignore any choices you made in the invalid, though notarized, document.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Until about 10 or 15 years ago, most law schools did not have classes on elder law. Elder law is not a specific area of the law, but is rather a collection of several different areas that usually impact people as they get older. Today, elder law attorneys assist retirees, the elderly, and those suffering from certain medical conditions as they deal with the legal issues involved. Let’s take a look at some of the common topics that elder law lawyers deal with.

Medical Decisions

People suffering from mind altering conditions such as dementia and Alzheimer’s disease often lose the ability to make choices. Once this happens, someone else will have to make decisions on that person’s behalf. In preparation for this possibility, and elder law attorney will help you create medical directives that allow you to choose who will take on the decision making roles. A living Will, for example, will set out your healthcare choices in writing, while a health care proxy or health care power of attorney will allow you to name someone else who can stand in for you and make choices on your behalf.

Living Arrangements

Elderly people often need assistance as cognitive and physical abilities decrease with age. Elder law attorneys know how to aid their clients in preparing for this transition to an assisted care facility, as well as guide families through the process if the need arises suddenly. Elder law lawyers can also aid you in determining if you are eligible for Medicaid coverage to help pay for the assisted living costs.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Late last month, officials with the Utah Department of Health reported that hackers had breached a state computer server and had stolen the personal information of thousands of state Medicaid recipients. The original number of affected individuals was estimated at 24,000, though that number has since been revised several times. The Utah Department of Health now says that about 900,000 Medicaid recipients have had their personal data stolen by the data thieves.

The theft occurred after hackers discovered that a state computer worker had used a weak password. Once they discovered the password, the hackers then stole about 24,000 documents containing medical and personal information from patients using Medicaid and a state program providing health care to low-income children.

The Utah Department of Health is offering patients affected by the security breach a year’s worth of free credit monitoring. When hackers obtain personal information, they use it to commit identity theft and open new financial accounts in the victim’s name. When these accounts are opened they appear on that person’s credit report, and credit monitoring will reveal if any new accounts have been opened.

Though there is nothing an individual can do to prevent thieves from stealing information from a third party server, you can monitor your bank accounts and credit card statements as well as keep track of your credit report. If you notice anything suspicious you should contact your bank or credit card company as soon as possible.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

If you have been living with a partner for years or more, you may consider yourself a “common-law” couple. While the term common-law is often bandied about, the legal definition of common-law is very different than the popular concept. The fact is, couples are only married through common-law if they meet very specific requirements. Let’s take a look at what it means to be a common-law couple.

Applicable States: Only 9 states allow people to get married through common-law. That means that you must live in one of the states and meet the state requirements to become a married couple under common-law provisions. Those 9 states are: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas.

Requirements: If you live in one of those states you must meet the specific state requirements in order to become married through common-law. Though these requirements differ slightly, they require you to be of a minimum age (usually 18 or older) and intend to get married to your partner. After agreeing to be married you must both hold yourselves out to the public as being married.

Time Requirement: There is no minimum time limit involved in a common-law marriage. Even if you have been living together for years or decades, you are not automatically married through common-law.

Marriage Rights: Once married by common-law, you and your spouse are a married couple. This means you have the same rights and obligations as has every other married couple. This means that you can only terminate the marriage when one of you dies, or if you get a divorce or an annulment. It also means each of you are entitled to inherit from one another upon the other’s death.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Tip 1: Know What Your Digital Footprint Is

Even if you have relatively little experience with the Internet, you likely have a digital presence whether you want to or not. To plan for your digital legacy you first need to know what is out there and what you can do about it. In many cases the information found on the Internet is not something over which you have control. However, you can better control your legacy if you choose to create your own online memorial through which your friends and family can remember you.

Tip 2: Incorporate Your Legacy Into Your Estate Plan

There any number of services that allow you to create a digital legacy so others can remember how important you are to them. If you choose to use a service, or create your own form of digital monument, you’ll want to ensure that your wishes are followed after you die. Make sure you leave clear documentation identifying what you have left behind online. You also need to ensure that your executor or your family members will be able to access this information.

Tip 3: Back-Up Your Data

While Internet remembrance services may be around today, there is no guarantee that they will be around tomorrow. This is also true for other forms of digital media, such as DVDs, flash drives, or even computer hard drives. To be certain your important legacy information lasts as long as possible you should use different backup systems to guarantee the information will be accessible. If, for example, you leave behind a DVD containing photographs for network family photographs, you may also want to have these photos printed so there is a backup in case the DVD breaks.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

As reported in the Wall Street Journal recently, families planning on using Medicaid to cover at least a portion of their long-term care requirements face a tougher time of it in some states. According to the Kaiser family foundation, Medicaid currently covers about 40% of all the long-term care money spent in the United States. In order for a person to be eligible for the program, he or she must have no more than $2,000 in cash assets, excluding the value of his or her home and automobile. After 2006, the federal government also required that states look at the gifts an applicant has given over the past five years. If those gifts exceeded the $2,000 value, this would make an applicant ineligible.

In order to meet the $2,000 asset requirement you will have to coordinate with an estate planning attorney and create a Medicaid plan that will account for all possible scenarios. Here are a couple of tips.

Tip 1: Create a living trust.

If you create an irrevocable living trust the assets you transfer to the trust will not be counted when determining the $2,000 asset limit. However, you must be sure that you create an irrevocable trust, meaning one whose terms you cannot change after it is created. You will also need to make sure you properly transfer your property to the trust—known as funding—for it to be effective.

Tip 2: Cover the five years with long-term care insurance.

While creating a trust can help you meet the eligibility criteria within five years, it will not help you avoid that five-year gift-giving time period. For those five years you can use long-term care insurance instead. Though this insurance is often expensive, acquiring it for only five years is much less expensive than it would be for acquiring lifetime long-term care insurance.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.