Estate & Elder Law Related Areas of Practice

Elder Couple — Bismarck, ND — Larson Latham Huettl LLP
Elder Couple Estate Planning — Bismarck, ND — Larson Latham Huettl LLP
Elder Guardianship — Bismarck, ND — Larson Latham Huettl LLP
Elder In Nursing Home — Bismarck, ND — Larson Latham Huettl LLP
Elder Wriring On Paper — Bismarck, ND — Larson Latham Huettl LLP
Pointing On Paper — Bismarck, ND — Larson Latham Huettl LLP
Elder Wills — Bismarck, ND — Larson Latham Huettl LLP

Elder Law

Elder law is a complex practice area that involves a hybrid of estate, retirement, disability, Medicaid, and nursing home planning as well as social security and veterans’ medical care issues. These are all rather complex areas of legal practice requiring specified knowledge and a great deal of experience.

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    Our attorneys are well versed and practiced in elder law. Greg Larson and Damian Huettl, with over 30 years of combined experience, specialize in elder law, estate planning, and nursing home planning.


    Greg and Damian are both members of the National Academy of Elder Law Attorneys (NAELA), with Greg serving as a State Director and Damian as the North Dakota Public Policy Liasison. Together they publish the “Elder Law Fax of Life,” a bimonthly update of current issues affecting the elderly – an excellent tool for laypeople to stay on top of the various areas of elder law. If you would like to subscribe to this newsletter, please Contact Us for a subscription form. 


    Not to mention, Steve Latham, with 32 years of legal experience, has years of litigation and trial experience with matters in the areas of social security law, disability, worker’s compensation, Medicaid, and veterans’ medical care.


    They, along with our experienced staff, can help you find the solution that best serves your needs.

Estate Planning

Estate planning involves a lot more than just signing a will on a form pulled-off the internet or a shelf at a book or office supply store. Estate planning, in a very general sense, is deciding during your life what will happen to your property when you die.

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    Everyone plans their estate in one way or another. Using a will, the most common tool in estate planning, is “estate planning,” but deciding not to have a will is also “estate planning.” So, everyone, as they go through life, is planning their estate, whether they know it or not. But proper estate planning can minimize current and future estate taxes and preserve estates while satisfying one’s personal needs and desires.


    Because everyone’s estate is different, different decisions will have to be made. In order to make the best decisions in planning an estate, one must know the different alternatives available in estate planning.


    Our attorneys are well versed and practiced in estate planning. They, along with our experienced staff, can help you develop an estate plan that will best serve your needs.


    In order to help us develop the best estate plan for you, we have prepared a Wills and Estate Planning Questionnaire from which we should be able to get all of the preliminary information needed to complete a draft of your will and preparing other estate planning documents. However, there may be some unique facts and circumstances in your case requiring further inquiry in order to properly plan your estate. If this is the case, you may need to explain further in the space provided in the questionnaire. ONLY ONE FORM NEEDS TO BE COMPLETED PER COUPLE. Please contact us to receive the questionnaire. Please fill out the questionnaire, which will be in a PDF format and can be printed with your home computer.

Guardianship and Conservatorship

A guardian is a person appointed by the court to be entrusted with the care and management of a minor or incapacitated person. “An incapacitated person” is an adult who is impaired by a mental or physical ailment, or by a chemical dependency, to such an extent that the person is unable to make or communicate responsible decisions regarding important matters, or to an extent which endangers that person’s health of safety.

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    When a guardianship order is issued, it establishes the guardian’s duties on behalf of the “ward.” A ward is the person who receives the guardianship services. There are many other possible rights and duties that a guardian may exercise or for which they may be responsible. However, the guardianship order confers upon the guardian only the powers and duties specifically set out in the court’s order. 


    Any person or entity interested in a minor or incapacitated person’s welfare may petition for an appointment of a guardian. One exception to this rule is that any group, institution or agency providing care and/or having custody of the proposed ward may not be appointed guardian. However, if no one else can be found to be guardian, an employee of the care provider may be appointed guardian if they do not directly provide care to the ward. 


    When a guardian is appointed, the ward has many rights attendant to this relationship. The guardian must only be vested with such powers and duties as are necessary in relation to the ward’s particular needs. The ward must retain the highest possible degree of personal freedom and control over his or her life. As the purpose of the guardian is to provide assistance to the ward regarding those things the ward is unable to do, if the guardian is either no longer necessary, or if a new guardian needs to be appointed, either the ward or any interested person may petition for such an effect. A guardian may also resign. If the ward has property to be managed, then a conservator can also be appointed with power over the ward’s assets.

Nursing Home Planning

Thanks to advances in medical technology, today's seniors are living longer than ever and often survive medical situations that often render one incapable of caring for oneself. This fact coupled with the recent phenomenon of children living further away from their parents and being unable to provide for their care, which is especially true of North Dakotans, has led to the increasing institutionalization of older Americans.

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    The costs of nursing care have increased astronomically with many North Dakotans currently paying $5,000 to $6,000 per month, and, in some cases, much more. One method to combat the escalating costs of nursing home care and home health care is through the purchase of long-term care insurance. If a person is healthy enough to afford the insurance and young enough to qualify, it can be an excellent investment. However, many seniors do not qualify for long-term care insurance due to age or various health issues, or they simply cannot afford it. 


    If a person does not have long-term care insurance or the long-term care insurance benefit does not cover the cost of care, which is often the case as nursing care costs have exceeded the inflationary protections of various policies, the primary alternative is to seek eligibility through the Medicaid program. Medicaid is primarily federally funded and is a needs-based program intended to assist the elderly with the costs associated with nursing care costs, pharmaceuticals, and healthcare. In order to qualify for Medicaid an individual must meet the complex and stringent eligibility criteria.


    Our firm has the expertise to assist individuals with all aspects of their nursing home planning from the purchase of long-term care insurance through planning and achieving Medicaid eligibility. This is certainly a complex area of law with many pitfalls for the unsuspecting who attempt to proceed without the assistance of legal counsel skilled and knowledgeable in the many intricacies of this area of law. Based on our many experiences and vast array of clients in this area, one thing is certain - a much greater opportunity exists for persons to protect their life savings from the exorbitant cost of long-term care, if they do not procrastinate and come to see us immediately.

Probate

Probate is the court-supervised legal process by which the affairs of a deceased person are settled. The judge of the district court in the decedent’s county of residence has jurisdiction over any probate proceeds that might take place. Probate is the proper forum for challenging any estate distribution, whether one desires to either compel or prevent such a distribution. 

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    Probate is not always necessary, such as when there is little or no property in the decedent’s estate. This may be the result of gifting, by placing assets into a payable on death account, or by titling property as jointly owned with a right of survivorship. 


    When an estate is small enough that probate costs would no longer be justified, an “affidavit procedure” may be used in substitution. This generally applies to estates that are less than $50,000. However, in order to use this alternative procedure, there must be a showing that no petition for appointment of a personal representative (“PR”) has been made, and there is no real estate to be transferred. 


    The probate process may be formal or informal. Formal probate is required where a will contest has occurred or is anticipated to occur, and where other disputes are anticipated. Informal probate is a much more efficient, speedy, and more economical method of winding up an estate, and requires much less court involvement. 


    Either form of probate is initiated by the PR. The PR files an application for Letters Testamentary and includes the original will. In general, the personal representative is appointed by the court and has the duty of collecting, protecting, and preserving the probate property and other assets of the decedent, as well as paying all debts, claims, and taxes owed by the decedent’s estate. In the event that formal probate is used, a date must be set for hearing the petition for appointment as personal representative, and notice must be sent to all potential heirs, unless the individual heirs waive their right to such a hearing.

Trusts

Trusts are a common tool used in estate and nursing home planning. A trust operates to protect a person’s assets and preserve them for future use.

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    A trust is formed by a person (the settlor) who transfers property into the trust which will be managed by another party (the trustee) for the benefit of a third party (the beneficiary). The settlor will provide the drafting attorney with specific terms which will govern the drafting and operation of the trust. The trustee will manage and/or dispose of the property according to the terms of the trust. A trustee can be a bank-related trust department, licensed bonded and regulated by the state, Uncle Bob, a trusted relative, or even the settlor.


    There are many different kinds of trusts which are generally divided into two categories – irrevocable and revocable (or living) trusts. An irrevocable trust cannot be terminated or modified by the settlor once it has been created. A revocable, or living trust, on the other hand, provides much more flexibility in its administration and can be terminated by the settlor.


    Trusts can be used in a number of ways to achieve a variety of purposes. Trusts often are established as a substitute or a supplement to a will, with the benefit of avoiding probate.


    However simple a trust may seem, creating a trust is not something to be dabbled in by amateurs or gone alone. In some states, all trusts are considered irrevocable unless the settlor provided otherwise in creating the trust. This means that any errors, miscalculations, problems, or events that arise during the life of the trust which may have been thought through, discussed, and addressed with an experienced estate planner may not be correctable.


    Our attorneys are well versed and practiced in trust creation and management. They, along with our experienced staff, can help you create the trust that will best serve your needs.

Will Contests

When a person decides to use a will (the “testator”), on occasion, he or she will exclude certain family members or other individuals from receiving certain property after they’re gone. Sometimes this is an intentional act and decision of the testator, but in some cases, the exclusion may have been wrongful, unintended, or the product of deceit by some unsavory character.

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    On occasion, a situation will arise where the will may have been drafted before the testator was married or had a certain child, easily explaining their exclusion. Generally, this can be remedied through the application of certain statutes. And, in some situations, the will may not have been properly drawn, signed, or witnessed, which makes it invalid. These are both reasons why one wants to hire an attorney well versed in estate planning and will drafting to prepare his or her wills and other estate planning documents in accordance with the law and the testator’s desires.


    Unfortunately, there are also situations in which the testator may have lacked the mental capability to make such decisions at the time the will was completed. Generally, where a testator lacks such mental capacity a will is rendered invalid and the Court will apply the state’s general intestate succession laws.


    Yet, in other instances, something vile may be afoot which may render the will invalid. Someone with a close or advisory relationship to the testator may have used this position to influence the testator to dissuade the testator from giving property to another or provide more for them in the will, through what is known as “undue influence.” Sometimes, another individual may have simply used force or fraud to get the testator to draft the will in such a way that they unfairly benefit from its terms. Or, even worse, the will could be a forgery. All of these circumstances may lead the court to rule that a will is invalid, which may subject the estate to the state’s general intestate succession laws, or simply result in the removal or exclusion of the specific portion of the will that was the product of such wrongdoing, allowing the remainder of the will’s provisions to be fulfilled as the testator had truly intended.


    Our attorneys are well versed and practiced in the unfortunate circumstances of will contests. They, along with our experienced staff, can help you investigate and find the proper remedy if you have been wrongfully excluded from your rightful share in your loved one’s estate.

Wills

A will is probably the most common tool used in estate planning. There are three major reasons for having a will. First, and most importantly, a properly drafted will assures that your property will end up in the hands of the people you want it to end up with. Secondly, the use of a properly drafted will keeps the amount of taxes paid to a minimum. Finally, a properly drafted will provides stability and certainty for you and your loved ones.

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    Although everyone knows about wills, many people die without one. When someone dies without a will, their “estate” (all their property – money, land, stamp collection, the family jewels, etc.) passes to their heirs according to the statute of intestate succession. “Intestate” simply means dying without a will.


    Generally, in North Dakota, when a person dies (they’re referred to as a “decedent”), the entire estate will pass to their surviving spouse if there are no surviving children and no surviving parents or if all the decedent’s surviving descendants are also descendants of the surviving spouse. However, where a decedent has children from a previous marriage, the surviving spouse gets the first $100,000 of the estate and the remainder will be divided evenly among the children of the decedent. If there are no children, the surviving spouse gets the initial $200,000 and three-fourths of the remainder of the estate. The remaining twenty-five percent passes to the decedent’s parents. If there are not any surviving parents or children, it would go to the decedent’s brothers and sisters, or nieces and nephews, or to their aunts and uncles, in that order. If there are no persons to take under the statute, then all the property goes to the State.


    To an average person, this may be exactly how they would want their property distributed after they’re gone, so they will say “I don’t need a will.” However, there are a number of other aspects of a will, both tax-related and otherwise, that are important and should be considered before someone determines whether or not they should have a will.

Our attorneys are well versed and practiced in estate planning and will drafting. They, along with our experienced staff, can help you write a will that best serves your needs.