Can we do an updated will or do we have to have a trust?

Catneal, sorry about your sister having to use up all her assets for her disease. That's why it's worth it to at least consult with an elder law/medicaid attorney. They maybe able to help someone not use up their assets for medical care. Many people wait until they've used up their assets to consult a medicaid attorney for help, when really it would have been better to consult one from the start to shield their assets. I've learned not to trust the social workers at hospitals about medicaid. I already knew much of what they were saying about qualifications were outdated. Obamacare extended medicaid changed a lot of the requirements. But after hearing from a medicaid lawyer, I released how much more those social workers were wrong. For example, when speaking to one in the hospital after my grandma fell once, she went on at length about why grandma wouldn't qualify for medicaid. One big reason was that her social security payments were too much. The lawyer explained to me that it's really simple to deal with that. You can setup a mechanism to pay back some of the social security to the government to come under the limit. The social worker didn't mentioned any of that when I asked if there was anything that could be done. Not knowing that if grandma does end up needing extended care her, my parents and my assets would have been drained paying for it instead of medicaid.

I would establish a trust. Unless you have no or very little assets, it's worth establishing a trust. It will avoid probate, which will cost far more than the cost of establishing a trust, and also help to avoid medicaid recovery if that becomes necessary. For most people, medicaid will be a necessity. Without a properly established trust, your assets will go to medicaid and not your daughter.

If you want to do it yourself, both the will and trust, take a look at Quicken Willmaker software. Most public libraries will have copies of Willmaker available to check out, so you can use it free. I've used it in the past and for wills and healthcare directives. The healtcare directives worked in my experience. It also comes with trustmaker. I'm not sure how well that works since I've never tested it. Now I use a lawyer to set all those things up. To be honest, I don't find much different from their documents and the Willmaker ones. They both say about the same thing. The lawyers even admit that they use forms to fill most things out. It is expensive though and just getting the paperwork done itself doesn't seem worth it. But the point of having the lawyer is to set up a relationship in case something goes wrong. Then it's on them to fix it. There are a lot of things that a lawyer can fix by petitioning a court that you and I would be lost doing. Many of the limits for medicaid are not fixed but flexible if you know how to ask for a change.

All this depends on which state you live in and how many assets you have. When my boyfriend and I went to have our wills done, we went to an estate/trust attorney who determined our estates were insufficient for a trust but needed wills to comply with state laws. We were also able to do our POAs and Medical Directives at the same time. Yes, it did cost some money to have this done, approximately $600 each. You, as a couple, would be less, depending on the state where you live and the type of attorney you choose (I thought the one we chose was too expensive and could have had it done elsewhere for less). I had some experience with Legal Zoom a few years back when my sister was dying of cancer. She lived in another state and had already used most of her assets in paying costs for her disease. Using the form from Legal Zoom that complies with her state laws and having few assets, she was able to have a simple will which only needed to be signed by a notary to be effective. It worked fine for her. So, as I see it, two things must be considered, the state laws which govern wills and your amount of assets.

A Will can easily become irrelevant over time if it is not maintained. Plus State laws change frequently.

"Anytime a writer of a Will has a birth or death in the family, divorces, remarries, buys a home, sells a home, buys any tangible property or sells any, or has any other life event that could affect the will, then he or she should consult with an Attorney to make sure the his or her Will is updated to reflect the new facts. If you have a will from years ago, dust it off and review it. If it no longer reflects your wishes, seek counsel from an Attorney to make it current."

My parent's older than dirt Wills were filled with out-dated request as more than half the people listed had passed away, and then the funds would go to the "heirs" to those whom had passed away. Unfortunately all it said was "heirs", not "immediate heirs", so the Will could be interpreted via State laws to mean not only children born to that person but also the husband/wives of said children if said grown children had passed, and/or their children and/or the person's siblings which my parents had never met, and to whom I had no idea on the siblings names or where they were living. See how complex an out-dated Will can become.

The most recent will should over ride all previous wills! A burial fund is a very good idea although some elders upset by that idea! No one will live forever. Try to make them understand that it would make arrangements easier for survivors. Get referral to elder law attorney from local Senior Center.

I strongly recommend that you use an elder law attorney for this because you do not know what you may encounter.

BTW, I recommend that this be done by a well-recommended lawyer who is NOT mass-marketing trusts. Also, do-it-yourself documents can have hidden traps that you are not aware of. I'm relatively knowledgeable legally but wouldn't do this one myself.

I would definitely talk to an elder law or estate specialist about a trust, which can include a will. It may seem like a big deal now, but in the long run a trust can make everything simple, possibly even the Medicaid possibility. My husband and I had a trust made not long before his passing (his brain was still totally OK), and I have not had a problem in dealing with any of the property or estate issues that have arisen, and not having to deal with a probate has been worth it all. I was also the corporate secretary of a non-profit that was named the beneficiary and executor of a trust made by a widower with no heirs, and we were able to deal with everything with no hassle. I really recommend it, and this way everything is organized so there should not be any counterclaims or hassles.

Love that you feel that your Will is outdated. Wills are never outdated, ever.

Research the Laws regarding how to change your Will according to the State you currently reside. Personally, I would be very hesitant if my daughter would suggest that she wants the Villa; my opinion only. Generally the discussion with a family member to change your Will could mean that they are wanting something that you feel should be given to someone else, but they are trying to influence your decision regarding YOUR PROPERTY.

The basic rule of thumb is that whomever is the surviving spouse is given everything unless certain items have been requested to be given to someone such as your grandmother's wedding ring.

The surviving spouse now owns all the properties that were common during the marriage. The surviving spouse can now have the Will redone and designate who gets what including children from a previous marriage, who will be the Conservator of the Estate. It is the surviving spouse's free will that comes into play at this point.

Again, Wills are never outdated, but the State Law should be researched. I will give you the example of what I am going through and researching regarding my Mother's Will.

Mom lives in AZ while I live in TX. She had her Will done back in the 1980s when she and dad divorced. She decided that she needed to change things due to issues that happened when my fraternal grandmother died.

AZ Law for Will changes:

The original(s) must be totally destroyed in the presence of a 3rd uninterested party so that the destruction can be proved in Court by swearing an oath

Changes can be done by the person by CROSSING OUT what they want changed i.e. naming someone else as Conservator. My Mother crossed out her brother and placed me as the Conservator

A Codicil aka an amendment. In AZ this can be done by the person or have help writing the codicil to make changes. My Mother asked me to help as she did not trust my siblings with this and knows that I will do what she wants done.

There is certain wording that must be included in the Codicil. The most important is that it be title Codicil #1, #2 etc of my Will dated____ if changes have been done for whatever reason. All codicils must be attached to the Will in the order they were done...very important as a codicil cannot stand on its own without the original Will and any previous Codicils. The Court will throw out the Codicil and refer to the original Will.

In my Mother's case, I typed everything for her while she provided instruction. I did question her about every change she made because I did not want her to feel later on the she made a mistake by not providing more or less for each child etc.

Once done:

The person must sign acknowledging these changes are done per their instruction
Their signature must be witnessed by 2 uninterested parties
All must be dated for the same date of signing
It may be required to have the signing done in front of a Notary, in AZ it does not. I told my Mom it did so there wouldn't be any question about the signatures or the Codicil

I have Mom's original Will(s) and the Codicil attached. My siblings do not and will not know that I have these documents until they need to know.

Reason(s):

Medical POA naming me as the responsible party 'mysteriously' disappeared and during a hospital stay, even though Mom was having memory issues (stated in her medical records at the hospital stay) managed to have Mom re-assign the Medical POA over to my sister/brother....this is fraud in AZ

Mom's Living Will also disappeared, I have a copy of it, but my Uncle/Aunt will need to swear that it is true and what Mom wanted as the 3 of us helped Mom set this up when I helped with the Codicil.

My sister stated to me that SHE was going to have Mom re-do the Will because it is outdated. Some elderly advocate told her that the State of AZ will seize all property and we as Mom's children will not receive anything.

My sister, although very intelligent and very street wise, does not have an inkling as to how a Probate state works. NOT A CLUE. I asked her if this advocate had a Law degree or not because she definitely doesn't understand probate. I had to work with probate all of the time when I was a banker for 30+ yrs. I know how it works and what needs to be done.

Even if she somehow gets Mom to re-do the Will (and I hope she does), because of AZ State Law, the re-do will not stand since I have the original(s) and the required ways accepted by the State were not done for the re-do

My sister lives with Mom and I have already caught my sister in at least 2 areas that are considered fraud in AZ. Once the Will(s) I have are recorded with the Court, I have the right to immediately kick my sister out of Mom's house as it becomes my property. I can also choose to have criminal charges made against my sister and she will be on shaky ground with the possibility of losing everything Mom intended her to receive.

Her problem is that she has seen the original Will(s) and any monies Mom has indicated for my sister; she can't get any of it without my permission and I have strict instruction in the Will as to what the money is to be used for and control any remaining money for her.

You can research all of this on-line. Every State is different. You can contact the appropriate Court to get questions answered too. You don't necessarily need an Attorney involved at this point depending on your State.

Be sure to research Notary Law too. These change and people do not have any idea that Notary is controlled by the State and therefore can be changed by the State government; which is not required to inform the public of the changes (learned that one when my sister committed another fraudulent action).

I hope that this has helped you in some way. You have the resources at your finger tips to get answers before involving attorneys and the money they make by the hour!

I do not believe you need to do anything about the old will as any new one would override that one.
As others have suggested, I would also recommend seeking advice with a reputable Elder Care attorney. Our parents had a revocable trust done up long ago in FL (they had a second residence - snow geese!) When dad was having issues and nursing home was imminent, we took mom to the EC attorney and had everything drawn up to protect them and their assets (trust for the condo - the FL residence had already been sold), and their assets, as well as medical and financial durable POAs, including medical directives. Later, when dad had passed and mom was showing signs of memory loss, we redid everything, assigning the two local children as POAs and moving all assets to an irrevocable trust (condo and money). We use this trust now to provide the extra needed to pay for her MC residence.
Another nice thing about putting assets (money as well as real estate) into a trust, this does NOT have to go through probate when the principal dies. I keep the minimum needed to cover expenses in her bank account so that we do not have to mess with the courts... at least not much! Once she passes, everything in the trust becomes our property.
Another suggestion is to ensure they have some kind of burial fund. Mom and dad had done that and recent contact with them is that mom's expenses are now pretty much covered - one less hassle and expense to worry about!

Sandyinstl, you also mentioned Legal Zoom. I have never used the company nor know of anyone personally who has. Check the Better Business Bureau. And check on-line for pro/con for using Legal Zoom.

One thing, when it comes to legal documents is is not a do-it-yourself project. All it takes is one misplaced word or one missing word to create havoc for your daughter. It is much better to have an Elder Law Attorney where you can drive to the office and sit face to face with the same person each time. They are familiar with the State laws and what might be coming down the pike. With the recent Tax Reform, that might tip the apple cart as States scramble to find ways to make up huge lost tax revenue that they had depended upon by large corporations in their States/Counties/Cities.

My parents have passed, and Dad's estate is still in Probate, but it has been so helpful having the Elder Law attorney and her Staff walking me thought this process, and actually doing the Probate required paperwork and knowing exactly who to call at the Court House.

I use an Elder Law Attorney who works for a large firm, thus if my Attorney should leave the firm, then there are other Elder Law Attorneys ready to step in to help her clients.

Yes, it can be expensive, but it can also be even more expensive if one tries to do it themselves which would cost them more if by chance there are mistakes made on the legal documents.

You and your husband are so thoughtful to do the necessary paperwork to make it easier on your daughter! My own parents haven’t changed anything in 25 years and it will eventually mean difficulties for me, their only child.

Their inertia has already made it difficult for me to effectively advocate for their benefit....

As I understand it Medicaid has a 'look back' time of 7 years, so get that trust done ASAP. Here is how I done mine 'on the cheap.' I went to the county courthouse and looked in the public records at the trusts on file. I selected one that was fairly recent and got a copy of it. I took it home and reprinted it on my computer, using my information instead of the original. Then, to make sure I didn't make some fatal mistake, I took it to an attorney for review. They changed a few things [to justify their fee, no doubt] and I filed it at the courthouse. All legal and at a very small price. And I can sleep easy at night knowing this issue is taken care of.

I’d spend the $ and get an atty in the new state to do a codicil to the old will and all the other documents FreqFlyer suggested. Ask about what can be done as “designated beneficiary” too.

Also your community, how does it have the age restriction enforced? Through a HOA? If so, there could be specific details needed in the property transfer document. If something happened next year, that’s 6 years before she could move in..... on the other hand what if your situation changes in another decade or two, you want the legal to be flexible enough yet be good for your states laws. Really having a good atty is worthwhile.

I’d ask around your community to find a couple of attys your neighbors have used and ask prices based on Freq’s list.

Sandy, I would highly recommend you go to an Elder Law Attorney to have a new Will drawn up, and at that time ask the Attorney about his/her opinion about doing a Trust.

I also would recommend having a Medical Directive drawn up which talks about your final health wishes. That will give your daughter some peace of mind on how you want to proceed medically, if at all. I was so glad my parents had that.

Also get your financial Power of Attorney and medical Power of Attorney updated. My parents originally only had each other as their POA, but when my Dad went to the hospital I couldn't give any consent as my Mom was POA, and Mom was very hard of hearing and almost blind being in her 90's. So my parents quickly got their POA updated to also include me [only child].

An Elder Law Attorney is also good to have just in case you should out live your finances, which can happen. These Attorneys know how to navigate through the Medicaid maze, again which will be helpful for your daughter.

And get the Wills updated ASAP. My parents Wills were older than dirt and the way the Wills were written would have created a terrible nightmare for me.

I wrote my own trust, first a joint trust then later a single person's. If your holdings are simple you can write your own. They really are rather easy. There are outstanding how-to books on the market. If your holdings are complex or you feel they may be or you're leery, then I would recommend an estate attorney--I've never used Legal Zoom so that's why mentioned an attorney.

My first trust I wrote it after consulting a terrific how-to book and searches on expert websites then had an estate attorney review it. The cost of his consult was low, though I don't recall how much as it was a long time ago.