Wills and Estates Insights
Analysis and practical guides on wills and estates.
27 articles, checklists, and guides on wills and estates law, written by the attorneys at MC Law. Every piece is general information, not legal advice—for a specific matter, contact the firm.
Planning and Paying for Long-Term Care: A Practical Guide
This guide walks a family through long-term care from the first worrying sign to the estate recovery notice. It covers the inventory to assemble before anything else, the capacity documents that must be signed while capacity exists, how to assess the level of care actually needed, how to compare home care, assisted living, memory care, and nursing facilities on cost and fit, how to evaluate a specific facility using public survey data and a site visit, how to appeal a Medicare skilled nursing termination, how to file a long term care insurance claim, how to prepare and file a Medicaid application and win a fair hearing, what to sign and refuse at admission, how to use care plan meetings and discharge appeals, and what happens after death.
Elder Law and Long-Term Care: Medicaid, Nursing Homes, and Protecting an Aging Parent
Long-term care is the largest uninsured financial risk most American families face, and the rules that govern it are counterintuitive at every turn. Medicare does not pay for long-term custodial care. Medicaid does, but only after a strict income and asset test, a five-year lookback on transfers, and a promise that the state will seek repayment from the estate. This article explains the documents that must be signed while capacity still exists, what guardianship costs when they were not, how Medicaid eligibility and transfer penalties actually work, the spousal impoverishment protections that keep a healthy spouse from destitution, the federal rights every nursing home resident holds, what an admission agreement may and may not require, and how to recognize and respond to elder abuse and financial exploitation.
Estate Planning and Wealth Transfer Toolkit
An estate plan is a set of instructions that has to work on the worst day of a family's life, when the person who wrote it cannot explain anything. This toolkit builds one in the order that matters. It starts with the inventory and the ownership question that determines which assets a will can even reach, then covers the incapacity documents that get used far more often than the will does, the core dispositive instruments and the choice between a will-based and a trust-based plan, and the funding step that quietly determines whether a trust does anything at all. Later stages cover beneficiary designations and the coordination failures that cause most unintended outcomes, planning for minors and beneficiaries who need protection, tax and basis planning at current exemption levels, business succession, digital assets, fiduciary selection, and what actually happens during administration.
Will Contests and Trust Litigation: Capacity, Undue Influence, and No-Contest Clauses
Estate and trust disputes look like ordinary civil litigation and behave differently in ways that matter from the first filing. The claims are largely fixed by statute, the deadlines are short and often jurisdictional, the key witness is dead, and evidentiary rules designed for exactly this situation constrain what the survivors may testify to. The two dominant theories—lack of capacity and undue influence—are frequently pleaded together and proved very differently, with undue influence turning on a burden-shifting presumption that arises from relationship and circumstance rather than from direct evidence. This article covers the grounds, who may sue and by when, how no-contest clauses actually operate, the fiduciary claims that run alongside a contest, and the drafting and execution practices that prevent most of it.
Probate and Estate Administration: A Practical Guide for Executors
Serving as an executor is a job with fiduciary duties, statutory deadlines, and personal liability, undertaken by people who have usually never done it before and who are grieving. This guide walks the administration in order. It starts with the threshold questions: whether probate is required at all, which assets pass outside it, and whether a simplified procedure is available. It then covers opening the estate, the personal representative's appointment and powers, and the immediate tasks in the first thirty days. It works through the inventory, creditor notice and the claims process with its priority rules, the tax filings including the estate tax return and the portability election that is worth filing even when no tax is due, and the family protections that override the will. Later sections address distribution, accountings, closing the estate, and the disputes that most often arise.
Planning for Incapacity: Guardianship, Conservatorship, and the Alternatives
Guardianship removes a person's legal right to make decisions about their own life and gives it to someone else, which is why every modern statute treats it as a last resort available only where less restrictive alternatives will not work. The alternatives are substantial and most of them must be put in place while the person still has capacity—a durable power of attorney, a health care proxy, a funded revocable trust, a supported decision-making agreement, and beneficiary and payee designations that route income without a court. Where those documents do not exist and the person can no longer manage, the court process begins with a petition, a capacity evaluation, and a hearing at which the respondent has counsel and the right to contest. This guide covers the alternatives, when a proceeding is genuinely necessary, how one runs, and what a guardian must do once appointed.
Trust Administration and the Trustee's Duties
A trustee holds property for someone else under the most demanding standard the law imposes, and most trustee liability arises not from bad investments but from failing to do administrative things nobody explained. This article covers what a trustee actually has to do: the duties of loyalty, prudence, impartiality, and disclosure as the Uniform Trust Code states them; how the prudent investor rule changed portfolio management and why an undiversified concentrated position is the most common surcharge case; how discretionary distribution standards work and what documentation supports them; the accounting and reporting obligations that also start the limitations clock; the modern flexibility devices—decanting, nonjudicial settlement agreements, directed trusts, and trust protectors; and the tax rules that make timing distributions worth real money. It covers the duties of loyalty, prudence, impartiality, and disclosure as the Uniform Trust Code states them, the prudent investor rule and the concentrated-position cases it generates, discretionary distribution standards, and the accounting obligations that also start the limitations clock. Later sections address the modern flexibility devices—decanting, nonjudicial settlement agreements, directed trusts, and trust protectors—and the tax rules that make distribution timing worth real money.
Trust Administration Checklist: A Practical Checklist
Most trustee liability arises not from bad investments but from administrative steps nobody explained—a concentrated position held without a written analysis, distributions made without documented reasoning, and annual reports never sent, which leaves the trustee exposed for years instead of one. This checklist runs the administration: the first ninety days from reading the instrument through the statutory notices and the initial portfolio review, then the recurring obligations that make up the job. It covers the investment discipline the prudent investor rule requires, the impartiality tools available when income and remainder interests diverge, the distribution protocol that makes a discretionary decision defensible, the reporting that starts a one-year limitations clock, the tax elections that are worth real money, and the protections available to a trustee who wants finality. It closes with the protections available to a trustee who wants finality—beneficiary consents after full disclosure, nonjudicial settlement agreements, virtual representation, and petitions for instructions.
Special Needs Trusts and Medicaid Planning: Preserving Benefits Across Generations
Means-tested public benefits impose resource and income limits so low that any ordinary inheritance, settlement, or gift destroys eligibility, and the destruction is usually accidental. Special needs trusts exist to hold assets for a beneficiary without those assets counting as available resources, and the rules differ sharply depending on whose money funds the trust. A trust funded with the beneficiary's own money carries a mandatory Medicaid payback and strict statutory conditions; a trust funded by a parent or grandparent carries neither and is far more flexible. This article covers the benefits programs and their eligibility rules, the trust types and when each is used, drafting and administration including the distributions that quietly reduce a benefit check, and the Medicaid planning techniques available to an older adult facing long-term care costs.
Administering a Trust After the Grantor's Death: A Practical Guide
When the grantor of a revocable trust dies, the trust becomes irrevocable and the successor trustee assumes fiduciary duties to a group of beneficiaries who did not choose them. The work that follows runs on deadlines that are easy to miss and difficult to cure: a notice that starts a short contest period, a portability election that requires filing an estate tax return no estate tax is owed on, a disclaimer window that closes in nine months, and elections on the fiduciary income tax return that materially change what beneficiaries receive. The administration divides into distinct phases—securing assets and giving notice, marshaling and valuing, paying claims and taxes, dividing the trust into subtrusts, and distributing—each with its own documentation requirements. This guide walks the sequence and the decisions at each stage.
Who Will Inherit Your Intellectual Property?
Intellectual property is one of the most valuable and most forgotten categories of assets in an estate. Copyrights survive an author by seventy years and can throw off royalties for decades; patents, trademarks, trade secrets, royalty streams, and the right of publicity each pass to heirs under their own peculiar rules. This article explains how each type of IP is inherited, why the non-waivable copyright termination rights under 17 U.S.C. 203 and 304 can override your will, how the post-mortem right of publicity varies wildly from state to state and turns on domicile at death, and which estate-planning tools-wills, trusts, holding entities, and beneficiary designations-best protect these intangible treasures. It also covers the often-overlooked tax traps, including the rule that a creator's copyright is not a capital asset under 26 U.S.C. 1221, how the step-up in basis changes that at death, and income in respect of a decedent. Finally it addresses the digital-assets problem under RUFADAA and the Stored Communications Act. The goal is a plan that gets the right IP to the right people and keeps it earning.
Trust and Estate Administration Toolkit
Estate and trust administration is a sequence of deadlines, notices, and fiduciary obligations in which the expensive failures are almost always procedural rather than substantive. A portability election missed because no return was filed. A creditor claim period never started, leaving the estate open for years. A concentrated position held without a written analysis. Annual reports never sent, which leaves a trustee exposed for five years instead of one. This toolkit covers both roles in parallel: opening an estate and qualifying the personal representative, marshaling assets and handling creditors, the tax filings and elections, distribution and closing—and for a trustee, acceptance and the statutory notices, the investment and impartiality duties, the distribution protocol, the reporting that starts a one-year limitations clock, and the protections available to a fiduciary who wants finality.