The following information is provided by the Center for REALTOR® Development, with assistance from Lauren Hampton and the Podfly editorial team, and is a recap of Center for REALTOR® Development Podcast episode 14. (This is part two of a two-part series that focuses on the senior market. Part one in episode 13 focused on the different lifestyle options seniors choose for housing.)
Here in part two, Barbara Boone McGinnis, CELA, and podcast host Monica Neubauer discuss estate planning, probate and trusts, and how to approach these topics as a real estate professional. Keep in mind that as a real estate professional, you cannot practice law and may need to recommend your client take the issue to a qualified attorney or elder law professional.
Boone McGinnis is certified as an elder law attorney by the National Elder Law Foundation, and as a Certified Elder Law Specialist by the Tennessee Commission on CLE and Specialization. She is also a VA-accredited attorney. Before receiving her license to practice law in Tennessee, Boone McGinnis spent more than 20 years as a registered nurse and gerontological nurse practitioner.
Boone McGinnis works at Takacs McGinnis Elder Care Law, a law firm that specializes in elder law. Her primary focus is helping older people (or the families that care for older people) navigate the healthcare system, estate planning, asset protection, and post-mortem issues.
REALTORS® get called in sometimes when their clients may need to be referred to other professionals first. Having an elder care attorney on your extended support and referral team may make sense, especially if your serve or encounter mature clients often.
When people decide they need the help of an elder care attorney, what options do they have? It may seem expensive up front, but will likely save a client money in the long run. Many people are surprised by what elder care law firms can offer.
“Making sure other professionals are aware of us is really helpful, because REALTORS®, insurance agents, CFPs, accountants…those are advisors that tend to be in an adult’s life all along,” explains Boone McGinnis.
It’s important that other professionals, who have likely worked with adult clients for much of their lives, are aware of elder care law professionals. Fees for their services typically would be 1-2 months of nursing home care, so it’s affordable and reasonable value. Elder care law is a growing niche in the U.S.; it seems to resonate with younger people that are looking for a truly meaningful career.
Below are some of the legal issues that you could encounter as a real estate professional, and for which the services of an elder law attorney may be beneficial for your mature client and their family.
Boone McGinnis and Neubauer talk about the importance of planning a will and what estate planning looks like for people. A will is a written declaration of what your wishes are for your assets are at your death. It is good for everyone to have, as well, as soon as they have something that’s worth protecting (assets, children). When it comes to estate planning, it should be thought of as a process, rather than an event. As our lives change, estate plans may change in focus.
Powers of Attorney (POA)
Estates often include Powers of Attorney (POA)—usually one for healthcare and one for general business purposes, which is what REALTORS® would likely be looking for. There are ordinary and extraordinary Powers of Attorney, and each one allows different scopes of authority.
When dealing with Powers of Attorney, it’s important to understand that every POA is not exactly the same, and understanding the authorities that are allowed. Some other documents that are part of estate planning are a HIPAA release, as well as a will substitute, like a trust.
“Some people get intimidated by the thought of a trust…it’s just a way of holding title of an asset for another person,” explains Boone McGinnis.
Trusts are legal documents that permit you to transfer assets either prior to your death or after. The grantor is the person that sets up the trust, and it’s their purpose for having the trust that guides how it’s used and what language needs to be in there. The trustee is the manager. The principal is the asset that is titled to the trust; beneficiaries are the persons who are supposed to benefit from the trust in life, as well as remainder beneficiaries that will inherit the asset after the death of the grantor.
You really don’t have to be super wealthy to benefit from a trust. A trust is a good way to manage assets of a vulnerable person or someone who wishes their assets to pass directly to their heirs without the more risky approach of putting them on deed.
What about probate? Probate is not just about transferring title to a named beneficiary; it is also about cutting off claims of creditors. REALTORS® generally prefer real estate to go through the probate process because they can be assured there aren’t outlying lingering creditors. There are ways of transferring real estate that may avoid probate. Boone McGinnis talks about some of the different ways you can own property that would prevent the property from probate.
There are many small details that can change the outcome of a transaction. There may be a general answer to a general question, but you may find something out later on that could change the answer.
There could be laws or practices that differ from state to state that could change whether you can sell a property under probate. Boone McGinnis shares some examples in the state of Tennessee, and how that compares to what she sees in other states. We recommend someone qualified to assess and address legal issues in your particular state.
Healthcare, Care Planning and Medicaid
One of the things they talk about in NAR’s Seniors Real Estate Specialist® (SRES®) designation class is Medicaid. Medicaid is a federal set of laws that is administered on a state level. It’s designed as a safety net program for categorically eligible people for medical insurance, but also serves as a payer of long-term services and support.
A lot of people think that having Medicaid pay for their care at the end of life might be a good idea because they’re afraid their assets would be used up having to pay for nursing care. There are several types of mature adult housing before nursing care, and Medicaid does not cover those expenses. Assistance for these types of expenses may differ state to state; Boone McGinnis shares how TennCare works in Tennessee.
There are income restrictions that govern whether a person can use Medicaid. You have to look at income versus net worth, and sometimes you can protect your net worth through the use of an irrevocable trust. There are so many ins and outs, and they differ from situation to situation. It’s important to help your clients find the professionals they need to figure out how they can benefit most.
Center for REALTOR® Development’s monthly podcast focuses on education in the real estate industry. It addresses formal education programs (such as those from NAR) and informal sources of industry knowledge (such as peers and mentors). Its intended audiences include REALTORS®, real estate professionals, allied professions (such as appraisers and lenders), educators, education providers, and consumers. To listen or subscribe, visit www.crdpodcast.com.
For more education about reverse mortgages and serving mature clients over the age of 50, check out this month’s featured designation online course at the Center for REALTOR® Development, Seniors Real Estate Specialist (SRES®) Designation Course, which is on special for 25% off this entire month of May, and is the educational requirement for SRES® Designation.
For more information, please visit RISMedia’s online learning portal from NAR’s Center for REALTOR® Development (CRD) and the Learning Library. Here, real estate professionals can sign up for online professional development courses, industry designations, certifications, CE credits, Code of Ethics programs and more. NAR’s CRD also offers monthly specials and important education updates. New users will need to register for an account.
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Legal Issues in the Senior Market: How Elder Care Attorneys Can Help