Why a Healthcare Directive is More Critical Now than Ever

As we all adjust and adapt to a world with coronavirus, I wanted to check-in and let you know some of the issues that we are encountering. Today that is about Healthcare Directives.

First, my friends and associates in healthcare in Cape Girardeau and Poplar Bluff tell me that although they we haven’t seen many coronavirus cases yet, just wait. They think the wave is coming. Now that is just their opinion, but it is worth considering that I’ve had multiple physicians recently contact my office regarding getting their estate planning in order. Their reason – they believe it is only a question of “when” they will get coronavirus, not “if.”

My understanding of coronavirus is that most cases are mild. Some individuals have the virus and don’t even know it because they are asymptomatic. Yet, for the 10-20% of cases that require hospitalization, it is important for individuals to have a Healthcare Directive. A healthcare directive does just what its name suggests – directs what type of healthcare decisions you want made. The key here is that it puts you in control of your healthcare decisions.

Several clients have shared with me their personal experience with how helpful a healthcare directive can be during one of life’s most challenging times.

In the event that your health reaches a point where you are not able to make your own decisions, on top of all of the other emotions your spouse, children, or other loved ones will feel, they will feel a tremendous weight on their shoulders as they make healthcare decisions, sometimes literally life and death decisions, for you.

How much easier it is for your loved ones when you’ve put your decisions in writing! No guess work required. It is written in black and white.

Creating a healthcare directive takes the weight of your spouse or loved one’s shoulders. You decide what type of care it is that you want, freeing your spouse, children, or other loved ones from that burden.

*Healthcare Directives are also called Medical Directives or Living Wills. Healthcare Directives are often included as part of a Durable Power of Attorney for Healthcare.

Estate Planning and Coronavirus

Over the last two weeks we have been receiving this type of phone call, “Hi, I’m calling because I don’t have any estate planning done and I need to get a Will.”

These potential clients are calling because they know they need a Will (actually they need more than a Will but that’s another conversation…) and they know that they have put it off for months or even years. It simply wasn’t a priority. It was easy to procrastinate.


Then the black swan of 2020 arrived. The novel coronavirus. COVID-19.

Before this, most of us had never heard of coronavirus. And now it has changed our world.

Coronavirus went from being a problem in China and on cruise ships, to shutting down schools, restaurants, and other businesses right here in Southeast Missouri. And it may have gotten you to think, “maybe it is about time I stop procrastinating and get my affairs in order. Maybe it is time to get that Will or Trust done.”

If that is you, we are here to help. 573-334-5125.

Three Reasons Why Giving Your House to Your Children Isn’t the Best Way to Protect It From Medicaid

Would Giving Your House to our Children be a Good Decision?

You may be afraid of losing your home if you have to enter a nursing home and apply for Medicaid. While this fear is well-founded, transferring the home to your children is usually not the best way to protect it.

Although you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, the state could file a claim against the house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called “estate recovery.” If you want to protect your home from this recovery, you may be tempted to give it to your children. Here are three reasons not to:


1. Medicaid ineligibility.

Transferring your house to your children (or someone else) may make you ineligible for Medicaid for a period of time. The state Medicaid agency looks at any transfers made within five years of the Medicaid application. If you made a transfer for less than market value within that time period, the state will impose a penalty period during which you will not be eligible for benefits. Depending on the house’s value, the period of Medicaid ineligibility could stretch on for years, and it would not start until the Medicaid applicant is almost completely out of money.

There are circumstances under which you can transfer a home without penalty, however, so consult a qualified elder law attorney before making any transfers. You may freely transfer your home to the following individuals without incurring a transfer penalty:

  • Your spouse
  • A child who is under age 21 or who is blind or disabled
  • Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
  • A “caretaker child,” who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant’s institutionalization and who during that period provided care that allowed the applicant to avoid a nursing home stay.

2. Loss of control.

By transferring your house to your children, you will no longer own the house, which means you will not have control of it. Your children can do what they want with it. In addition, if your children are sued or get divorced, the house will be vulnerable to their creditors.

3. Adverse tax consequences.

Inherited property receives a “step up” in basis when you die, which means the basis is the current value of the property. However, when you give property to a child, the tax basis for the property is the same price that you purchased the property for. If your child sells the house after you die, he or she would have to pay capital gains taxes on the difference between the tax basis and the selling price. The only way to avoid some or all of the tax is for the child to live in the house for at least two years before selling it.

Before giving your house away consider the important items above. Please know there are other ways to protect a house from Medicaid estate recovery, including putting the home in a trust. To find out the best option for you, let’s talk. Simply call to schedule a consultation.

How Much Does a Nursing Home in Missouri Cost?

The 2018 data is in. The cost of Skilled Nursing Home Care in Missouri according to Genworth is $5,543 per month for a private room and $5,019 per month for a semi-private room. That’s a cost of $66,516 per year for a private room and $60,228 for a semi-private room.


How does this cost compare?

Nursing home care is expensive. For 15 years, Genworth has developed the Cost of Care Survey to help families understand the costs of varying types of care across the U.S. The 2018 data is in and the median cost of a private nursing home room in the United States increased to $100,375 a year, up 3 percent from 2017.  At the same time, Genworth reports that the median cost of a semi-private room in a nursing home is $89,297, up 4 percent from 2017.

Alaska continues to be the costliest state for nursing home care by far, with the median annual cost of a private nursing home room totaling $330,873. Oklahoma again was found to be the most affordable state, with a median annual cost of a private room of $63,510.

So while the cost of skilled nursing home care in Missouri is expensive, it is among the least expensive in the country.

For more on Genworth’s 2018 Cost of Care Survey, including costs in all 50 states, click here.

Senior Matters Expo

senior matters expo 2018

On Saturday, October 6, 2018 we were at the Senior Matters Expo at the Drury Plaza Conference Center in Cape Girardeau. The Senior Matters Expo is for seniors by age (65+) and seniors in high school (age 18). The result is that you have vendors ranging from nursing homes to clothing for teenagers.

Mark & Heather at Senior Matters Expo in Cape Girardeau

Our Services

We were there to tell people about the services we offer: wills, trust, asset protection, and medicaid planning. Thanks to my great assistant heather for taking the lead on arranging everything for our booth and thanks to all of the attendees who stopped by to visit.


What is a “Small Estate” in Missouri?

Full probate is time consuming and expensive. As an alternative, many states have created special rules for “small estates” that make the process go faster and cheaper. In Missouri, to qualify as a Small Estate, the value of the estate must be less than $40,000. Missouri Statute 473.097 sets out when a Small Estate can be used.

Steps in a small estate

To take advantage of the Small Estate statutes, the following conditions must be met:
(1) the entire estate must be worth less than $40,000 (subtract debts and liens from the value);
(2) 30 days must have passed since the decedent passed away;
(3) unless excused by the Court, a bond must be secured; (in Cape Girardeau County and surrounding counties, the Court will usually waive the bond requirement) and
(4) when required, notice must be published to potential creditors.

Any distributee may then prepare an Affidavit (a written statement made under oath) that states:

  • Whether the decedent had a Will,
  • A list of all of the decedent’s assets,
  • A list of all of the decedent’s debts and liabilities and assets,
  • The names and information of the persons entitled to receive the property along with the facts that establish their right to the decedent’s property (for example, Jane is entitled to receive car because she is the surviving spouse of John).

The Affidavit must be filed with the clerk. If approved by the court, the court will issue a Court Order allowing the affiant to collect the estate property, pay any debts and liabilities, and distribute the estate property to the proper individuals.

how long does a small estate take?

Clients often ask, “how long does a Small Estate take?” Each case is different and unique so one case may be resolved quickly while another may take months. That said, we often see Small Estates handled from start to finish within one month. Do you have a Small Estate that you need help with? We’re happy to help. Just call.

How Can I Avoid Probate?

When people say probate, what they are really referring to is Probate Court. People typically want to avoid Probate Court because it wastes time & money and takes what most people consider private and puts it in the public record.

Probate Court sign

3 ways to avoid probate in missouri

So how can you avoid probate? There are a number of legal strategies you
can use. Here are 3 of the most common strategies used to avoid probate in Missouri:
1. Joint Tenancy & Tenancy by the Entirety. Adding another person to your assets as a joint owner or “joint tenant with rights of survivorship” will allow your property to pass to them upon your death without going through probate. There are pitfalls to this strategy, however, to include subjecting such assets to any claims (such as lawsuits) against the co-owner and making them available to the co-owner’s creditors — all while you are still alive and planning on using the assets yourself. So this strategy can work but it also comes with risks.
2. Beneficiary Designations. Missouri allows Transfer on Death (TOD) or Pay on Death (POD) beneficiary designations to be added to bank accounts. Beneficiary designations like these are preferable to joint tenancy in that they allow you to transfer property only upon your death without giving away current ownership. One of the drawbacks, however, is that it can be
difficult to obtain an equitable distribution of property among your heirs by utilizing beneficiary designations. Additionally, understand that if you have beneficiaries listed on your assets, those assets will be distributed upon your death to the listed beneficiaries, even if your last Will and Testament states otherwise.
3. Revocable Living Trust. A Revocable Living Trust is a legal document that allows you to establish a separate entity (the trust) to “hold” legal title to your assets while you are alive, and to name Trustees to manage those assets according to the trust terms. Typically, you serve as the trustee while you are alive, managing your assets for your own benefit. Upon your disability or death, the trust terms appoint your successor trustee who then continues to manage- or distribute — the assets held in trust. A properly drafted trust can accomplish many goals, including guardianship and probate avoidance for your estate and bloodline, as well as creditor protection (including from divorce) for your children.

How much does a Will or Trust cost?

How much does a trust cost?

One of the most frequently asked questions that I receive is “How much will it cost to get my affairs in order?” or “How much does a Trust cost?” What our clients like is that we have clear, up front pricing. During our initial consultation we’ll discuss what it is that you want to accomplish and the simplest way to do so. Typically, our clients know to the penny what the amount will be before we get started.

Why is up front pricing better than hourly billing?     

When attorneys bill hourly, they have an incentive to work slow. And because clients know that each phone call or email will be logged and billed for, clients are hesitant to ask questions. With up front pricing, we encourage you to contact us throughout the process- after all, it is your estate plan that we are putting together, we want to work with you to make sure that it does just what you want it to do. Communication is key to making sure that happens.

The Cost of Not Planning

Consider Alex who never got an estate plan because she was concerned about how much it would cost. When Alex died, her children had to take time off of work to travel from St. Louis to Cape Girardeau, hire an attorney in Cape Girardeau, and pay the attorney an out-of-pocket retainer to represent them. At the end of each month, Alex’s children received an invoice for the work that the probate attorney performed the prior month. Needless to say, it quickly became expensive. And the expense went on for month after month. Finally, after 10 months, the children were able to get the probate case closed. Yet, for 10 months, Alex’s children had to waste their time and money in probate court. The point of this example is clear- Alex was penny wise and pound foolish. By not planning while she was alive, it ended up costing her children much more money, not to mention the time, aggravation, and hassle of her children having to deal with court proceedings over 10 months in a county an hour and a half away.

How Do I Get Started on a Will or Trust?

My practice is focused on Estate Planning (Wills & Trusts) and Elder Law (Asset Protection). This is what we deal with day in and day out. The first step is scheduling an initial consultation where we will discuss what it is that you want to accomplish and then the simplest way to make that happen. Call 573-334-5125 and speak with Heather or Theresa to get a consultation scheduled today.



8 Steps to Probate in Missouri

Typically our clients want to avoid Probate Court. Yet, if probate cannot be avoided, here are the steps that you have to go through during a normal Probate case in the state of Missouri.

Note, this is for a “normal” case, yet please keep in mind that each case is different. For example, if the estate is less than $40,000, a Small Estate may be used. If the estate is less than $15,000, a Small Estate may be used and the publication requirement is waived. The smart move if you’re not sure what to do is to contact an experienced attorney who handles probate.

what is probate COURT?

Probate Court is a court with jurisdiction over (1) determination of the validity of Wills and (2) administration of estates and (3)  matters involving  adults judged to be incompetent.

Common Pleas Courthouse, Cape Girardeau, MO

The order of events in Probate Court

  1. PETITION. A petition is filed with the proper Missouri probate court (normally the County where the deceased lived or where the real estate is located). For example, a resident of Jackson, Missouri would file the Petition in Cape Girardeau County. The Probate Court for Cape Girardeau County is located in the Common Pleas Courthouse.
  2. NOTICE. Notice is given to heirs under the Will or, if no will exists, to statutory heirs.
  3. EXECUTOR. A Petition is filed to appoint executor (in the case of a Will) or administrator for the estate. You may also hear this person referred to as the deceased’s “Personal Representative”.
  4. INVENTORY. The executor or administrator performs an inventory and appraisal of the estate assets.
  5. PAY DEBTS. Payment of estate debt is made to rightful creditors.
  6. SELL PROPERTY. Estate assets are sold.
  7. PAY FEES. Fees include attorney fees, court costs, and estate taxes (if applicable).
  8. MAKE DISTRIBUTION. After all expenses are paid, the final distribution of assets is made to heirs.

5 Common Types of Trusts in Missouri

We often get clients who say, “I’d like to set up a Trust.” Yet, what type of trust you want to set up will depend on your situation.

One big advantage of most Trusts is they can help your heirs avoid probate court and, in many instances, can help keep your affairs private. Many trusts are not part of the probate court system and never become a matter of public record.

Trusts - Trustee, Assets, Property, Law, Benefits

5 Common Types of Trusts in Missouri are:

  1. Testamentary Trusts. Testamentary Trusts have no power or effect until the Will of the deceased is probated. Although a testamentary trust will not avoid the need for probate and will become a public document as part of your Will, it can be useful in accomplishing many estate planning goals. The most common use we see of these are where individuals want an inexpensive estate plan with provisions for minor children.
  2. Revocable Trusts. Revocable Trusts are often referred to as “Living Trusts” because they are created while you are alive. Revocable Trusts are the most popular type of Trust. With a revocable trust, the person establishing the trust (this person is known as the grantor, trustor, or trustmaker) maintains complete control over the trust and may amend, revoke or terminate the trust at any time. Revocable trusts are generally used for asset management, probate avoidance, and some tax planning.
  3. Protection Trusts. Sometimes called a Medicaid Asset Protection or MAP Trust. Protection Trusts are crafted for a specific purpose, to protect the property inside (often a home, real estate, or farm land) from creditors and/or nursing homes. Because of its ability to protect real estate and other assets, Protection Trusts are becoming more and more popular, especially for individuals who do not have long-term care insurance.
  4. Supplemental Needs Trusts. Supplemental Needs Trusts are often called Special Needs Trust. They enable the donor to provide for the continuing care of a disabled spouse, child, relative or friend while allowing the beneficiary to also receive public benefits.
  5. Pet Trusts. More and more, clients are telling me they want a plan that ensure their pets will be well taken care of following their death. The Uniform Trust Code contains specific provisions allowing trusts to care for your pets after your death.