State laws determine rules, procedures, and terminology with regard to estate matters; however, there are some fairly universal concepts and terms. An heir is typically someone who will stand to inherit from your estate under the laws of intestate succession. Intestate succession, in turn, simply refers to an estate wherein the decedent died without leaving a valid Last Will and Testament. As a general rule, heirs under intestate succession laws include a spouse and other blood relatives. Your spouse and children will likely be the first heirs in line to inherit, followed by grandchildren, parents, siblings, and on down the line until your entire estate has been accounted for under your state’s intestate succession laws.

A beneficiary, on the other hand, is someone that you specifically mention as receiving a gift under the terms of your will. For example, if you bequeath your father’s ring to your daughter in your will, she is then a beneficiary under the terms of your will. Likewise, if you bequeath your vehicle to your best friend Sally under the terms of your will, Sally is a beneficiary. A person can be both an heir and a beneficiary. In the above examples, your daughter is both an heir and a beneficiary; however, Sally is only a beneficiary.

When a person dies, and does not leave behind a valid Last Will and Testament, the person is said to have died “intestate.” When that happens, the state intestate succession laws govern how the assets that make up the decedent’s estate will be handled and who will receive them. Another scenario under which the laws of intestate succession apply is when a will was executed, but the will failed to account for all the estate assets. For example, if the decedent left a will with a number of specific bequests, yet did not indicate who would receive any cash or assets that are not specifically mentioned in the will.

State law determines who inherits when a decedent dies intestate and how the estate assets are apportioned among the heirs. In most states, the spouse and children are first in line to inherit, followed by lineal descendants such as grandchildren and/or parents, siblings, and other blood relatives.

Before assets in an intestate estate can be transferred to heirs, a court must determine who the heirs are to the estate.

A small business can be formed under a variety of different legal entities. How you formed your business will, to a great extent, dictate how you incorporate your business into your estate plan. If, for example, you formed a corporation, the business will legally survive your death as you are considered a shareholder of the corporation. A partnership, on the other hand, can be structured so that it may or may not survive the death of a partner.  A sole proprietorship, by virtue of the fact that it has only one owner, does not legally survive the death of the owner.

Whether you formed a corporation, partnership, sole proprietorship or other type of entity, you have a financial interest in the business that needs to be protected in the event of your death. Whether you simply wish to protect that interest and pass it down to your heirs, or wish to actually provide for a business succession plan that will keep the business alive, you must include a mechanism in your estate plan to legally accomplish your goals with regard to your small business.

The Medicaid program is a collaboration between the federal and state governments. Although federally funded, the program is administered by the individual states. As a result, the eligibility requirements and benefits may vary somewhat among the states. There are, however, some general similarities among the state programs. Both income and resources are considered when you apply for Medicaid coverage. Limits on income and resources are determined based on your household size and the cost of living in the area where you live. Income and resource limits, however, may be higher for certain categories of Medicaid recipients such as pregnant women, the elderly and the disabled.

Coverage offered by Medicaid typically includes all routine medical care as well as emergency care. Benefits for the young, elderly and disabled as well as pregnant women may be more extensive than those for healthy adults. Coverage may also be retroactive for up to three months prior to the date you applied for benefits.

If you have resources, such as a home, that put you over the resource limit, you may be able to create an asset protection trust that will enable you to qualify for Medicaid benefits without having to sell the assets. If you have been denied Medicaid coverage because of your resources, or for any other reason, you have the legal right to appeal the decision. Consult with an experienced Medicaid lawyer to determine what legal options you have.

One of the most common issues faced by family or loved ones of an elderly individual is how to know when your loved one has reached a point where he or she is incapable of making decisions due to a mental incapacity. No one wants to see that happen to a loved one; however, not recognizing that your loved one needs help can result in serious injuries. An elder law attorney can help advise you regarding what legal options you have if you find yourself in this situation. A guardianship, or conservatorship, for example, may be needed to protect your loved one from harm.

An elder law attorney may also be able to help if you suspect that a caregiver or facility is not treating your loved one as he or she should be treated. Unfortunately, elder abuse happens more often than most people realize. If you suspect abuse or neglect, an elder law attorney may be able to help.

Many people assume that simply because someone is their parent, child, spouse or other relative, that they have the legal authority to make decisions on behalf of that person. In most cases, that is not the case. Although state laws will vary to some extent, most states require you to obtain the legal authority from a court before you can step in and make those decisions. Unless the person has previously given you legal authority, such as by executing an enforceable durable power of attorney, you may need to become his or her guardian.

Becoming a guardian typically starts with filing a petition in the appropriate court. After notice and a hearing, if the court is satisfied that your loved one or family member is need of a guardian, and that you qualify for the position, you will be appointed. Exactly what authority you have at that point will differ from state to state; however, in most states you will be able to make day to day decisions regarding things such as where the person lives and what doctor he or she uses. Often, in order to have authority over the person’s finances as well, you will need to also become a conservator. This can often be done at the same time as the guardianship petition or through a similar proceeding.

A spendthrift trust operates in much the same way as any other trust. At its core, it is created and administered in the same way as all trusts; however, it includes a specific provision that prevents a beneficiary from assigning his or her interests to a third party as well as preventing a third party from claiming any interest in the assets as a result of debts owed by the beneficiary. Not all states recognize spendthrift trusts, but most do in one form or another. Because trusts are governed by state law, the precise language needed to create a spendthrift trust will vary by state. The goal, however, of a spendthrift trust is the same in all states. By creating a spendthrift trust, you can be certain that your assets will not fall into the hands of a third party due to the poor money management of a beneficiary.

When someone dies, the first thing that loved ones or family members typically do, from a legal perspective, is to look for a Last Will and Testament. The next step is generally to petition the appropriate court to initiate probate proceedings. Some states allow small estates with total assets under a specific dollar amount to avoid formal probate by using a small estate administration, small estate affidavit or similarly named procedure. If formal probate is required, the process can be lengthy and costly. As a general rule, formal probate is also required when a will was not executed in order to determine who the legal heirs to the estate are.

Someone must be appointed or approved by the court to oversee the day to day handling of the decedent’s estate. If a will was executed, this is the executor named in the will.  If there is no will, the court will appoint someone to act as executor. The assets of the estate are then inventoried and the debts paid. If there are no contested debts, a will contest has not been filed and all estate taxes have been paid, then the court will eventually approve the release of the remaining assets to the beneficiaries.

Creating a comprehensive estate plan often requires employing various estate planning tools to accomplish your goals. Among those tools may be the creation of a trust.  In general, trusts offer flexibility and tax and probate advantages.  Before deciding which type of trust is best for you, a basic understanding of the advantages of different types of trusts is essential.

An irrevocable trust is a trust that is typically created and put into effect during your lifetime.  Unlike a revocable trust, an irrevocable trust cannot, under most circumstances, be modified, amended or terminated once created. Most states do provide for court procedures to modify or terminate an irrevocable trust; however, if you elect to create one, consider it to be unchangeable.

The primary advantages of an irrevocable trust relate to estate taxes and probate. Once you designate assets to fund an irrevocable trust, those assets become trust property. As trust property, they are no longer owned by you. Only property owned by you is included in the probate process and included in estate tax calculations. Considering the often high rate of estate taxes, a sizable irrevocable trust can save a substantial amount of money in estate taxes as well as months of waiting through the probate process.

One pitfall to avoid, however, is creating an irrevocable trust too close to the time of death. Assets transferred “in contemplation of death” will revert back to the decedent’s estate and be included for estate tax purposes.

One of the most important concerns parents of young children have is how to ensure that the person who will care for the child in the event of your death has immediate access to the funds necessary to do so. One option is to hold title to property jointly with another person. This works well if there is a spouse, partner or other adult you trust to share title to the property. Financial accounts can also typically be converted to “pay on death” accounts. A “pay on death” account, as the name implies, requires the bank, pension administrator or other financial institution to pay out the assets held in the account to a designee in the event of the death of the primary account holder. Both of these simple steps can provide for continuity in the care of your minor child in the event of your death.

In addition, although a Last Will and Testament should be prepared — specifically to nominate a guardian in the event one is needed — a trust should also be considered. A trust allows you to retain a large degree of control over how your money will be used to care for your child