Author: perrylawoffice

WHAT IS A WINDFALL OFFSET IN SOCIAL SECURITY DISABILITY?

Many times people who file for disability with the Social Security Administration (SSA) have claims for both Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Also, many times, the person who is found disabled is really only entitled to, at most, five months of past due SSI benefits. Yet, SSA will start off paying the person many more months of SSI to which they are not really entitled. When SSA tries to figure what you are owed in past due DIB, they reduce that amount by what you have been overpaid in SSI. This is called the windfall offset.

Sounds simple enough doesn’t it? But it is not. SSA withholds the past due DIB until the offset is calculated. In about a twenty-one percent (21%) of the time it is not calculated at all and another thirty-one percent (31%) of the time it is not done in a timely manner. Two percent (2%) of the time it is done incorrectly. Only about forty-five percent (45%) of the time are things done properly. This can be very confusing to individuals receiving disability benefits. It can also make it difficult for the disabled person to receive all past due benefits to which they are entitled.

At Perry Law Office, after we help a person obtain a favorable decision that they are disabled, we follow their claim in an effort to see that all past due benefits are properly paid.

 

WHAT HAPPENS TO MY CLAIM IF THE PERSON THAT OWES ME MONEY DIES?

If someone owes you money (a debtor), does your claim die with that person?

The short answer is NO, however you have a limited time to act and preserve your right. This does not mean you are going to get paid as this will depend on the decedent’s assets but it allows you the option of getting paid.

 

Time-frame/Deadline to file Claim

Indiana Law provides creditors with a very short window of opportunity to present a claim against a deceased debtor. Indiana code  29-1-14-1 provides that all claims against a deceased person are barred if not filed within nine (9) months after the date death. This means that you must file a claim in the debtor’s estate within nine (9) months of the date of  their death.

  • It does not matter if you were not notified.
  • It does not matter if an estate was not opened for the debtor.

What if no Estate is opened?

If an estate was not opened for the debtor you would need to take action to have an estate opened in order to file your claim. Obviously doing this might not be economically feasible unless your claim is substantial and you believe or know that the debtor might have assets sufficient to cover the amount of your claim. You would have to pay any filing fees or other associated costs, if any. By doing this you are hoping the debtor has sufficient money to pay all expenses ahead of yours (administrative expenses, other creditors who may be head of you, ie, mortgage company). This may not be known until you open the estate and file your claim.

What if an Estate is opened?

If an estate has been opened and you find out about the estate within the nine (9) month period you can file a claim for the money the deceased owed you. However, there could be another roadblock. Normally when an attorney opens an estate for a decedent they publish notice of the opening of the estate in a local newspaper and notify by letter the known creditors of the decedent. You only have three (3) months from the date of first publication in the newspaper of the notice to file a claim. This could be less than  nine (9) months from the date of death.

If a person that owes you money dies, your best chance of recovery is to immediately contact an attorney knowledgeable in filing claims in estates.

 

 

WHAT DOES A PERSONAL REPRESENTATIVE OF AN ESTATE NEED TO DO TO GET STARTED?

Who is a Personal Representative?

A Personal Representative is a gender-neutral legal term used in Indiana and is the person(s) named to wrap up a deceased’s affairs and distribute the assets. Other states may refer to this person as the Executor (male) or executrix (female) of the Estate. If the Decedent had a Will, they typically would have named their choice for Personal Representative in this document. Once the estate is opened with the court, the court will officially approve the Personal Representative, thus giving them the authority to handle the affairs and assets of the decedent.

What does a Personal Representative have to do?

There are several things you are tasked with handling, while some of them may not seem difficult, they can be time-consuming and hiring an attorney may help.

1.     Locate the Will and determine how distribution of assets is to go. This is more involved than just               finding the assets and handing them out to the heirs, and there are time frames that should be                   followed. Must probate the Will.

2.     Locate and secure all assets making sure they are locked, insured, and harbored in a safe place.             This includes securing the house, vehicles, bank accounts, and personal belongings.

3.     Keep the utilities and mortgage paid, but cancel the non-essentials like cable, dish, internet and                 the newspaper.

4.    Open an estate bank account.

5.    Review all bills, and determine what must be paid now.

6.    Determine if tax returns must be filed.

7.    Everything must be kept separate than the Personal Representative’s assets.

8.    Determine all heirs to inherit under the Will. Get approval by all to close the estate and distribute                the funds.

9.   Adhere to deadlines set by the court to close the estate and file certain documents.

10.   You as Personal Representative could have personal liability if handled incorrectly.

This is not an exhaustive list of the duties of a Personal Representative and every case is different.

Having an experienced attorney guide you through the process helps ensure you do not miss something important and can answer any questions that may arise. 

 

Where are your Assets?

 

HAVE YOU “MAPPED OUT” YOUR ASSETS FOR YOUR HEIRS?

You probably have a Last Will and Testament describing how assets are to be distributed, but have you made a list of where those assets can be found?

 

You want to make sure your family is able to locate everything you have worked so very hard for. An asset inventory is a simple list which makes it easier on your loved ones by telling them exactly where to find all your assets and various accounts.

What are my assets?

Assets are tangible and intangible things you own or have a right to when alive or after you die. You may have numerous bank accounts with different banking institutions, cash, collectibles, online accounts, emails, retirement plans, (life) insurance policies, and perhaps even receive “paperless” statements only via email. It is a good idea to leave a list of passwords, account numbers and locations. Your asset inventory may include:

  • Bank and investment accounts
  • Safe Deposit Box
  • Insurance and annuity policies
  • Stocks and bonds
  • Deeds and titles
  • Retirement Accounts (IRA, 401K, etc.)
  • Life Insurance policies (any post-death benefits)
  • Cash, jewelry, valuables
  • Email and online accounts with passwords.
  • Certain bills or premiums you pay may also be included
  • Combinations to a safe or location of a safe key

What does this matter?

This is a very important Estate Planning step that most people forget about. Doing this very simple step, could save your loved ones hours of time and energy trying to locate and organize all your various assets. Plus it will ensure all your assets are accounted for. Once you die, holders of most of these assets have knowledge of your death or even if they did, an obligation to notify your heir that the asset exact. This huge responsibly falls onto your Personal Representative (or Executor of your Will). This is the person you named in your Will to collect, manage, and distribute your assets and pay your last bills.

What do I do after I “Map my assets”?

After you have mapped it all out, tell a loved one where you are going to keep the list. Generally you keep it in your safe along with your Will and other important documents (remember you should give someone the combination to your safe or a way to access it). Remember to periodically update your asset inventory, and always update your Will with major life events.

Call Perry Law Office now and our experienced attorneys will help you decide if now is the time to make changes to your Will or help you with your other Estate Planning needs.

 

WHY YOU SHOULD NOT DRAFT A WILL ONLINE

There are many websites where you can draft your Will, but do you really know what you are getting?

Always remember, you get what you pay for.

Before you have some website create important Estate Planning documents for you, consider the following:

1. Generic Documents

Many of the sites offer generic documents that are intended to be a “one size fits all”. When it comes to estate planning, this is not the time for you to try on a “one size fits all” document. You may have very specific needs that cannot be addressed in the generic document. What if you want to leave someone out of your will? What if you want to leave a specific item to someone? What if you want to make sure if a child predeceases you that your grandchild gets their share? These documents are often templates and may or may not allow you to address your questions and concerns.

2. Every state has different legal requirements.

Each state has its own inheritance tax laws, as well as certain requirements to make a valid Will. Are you confident that the generic forms cover your state’s requirements? In Indiana, you must be 18 years old, of sound mind and the Will must be signed by two disinterested witnesses. The website does not offer you witnesses to sign your Will, so even when you are done printing there are still steps to be followed to make sure the Will is valid.

3. Consulting an attorney?

Many of these sites do not have an attorney walking you through the process, or even offer to have an attorney contact you before drafting your documents. If you have questions there is little guidance. Often you will even find a disclaimer that this is not to be considered legal advice. Who will you ask the important questions of what can I and what can’t I put in a Will? Or how do leave or specifically not leave someone, something? What is best for you, based on your current martial, familiar, or financial situation? There are various types of Wills and Trusts, depending on your specific needs that you should consider before choosing a Will.

4. Making changes.

Many times your Will is not retained by the website and any changes you may want to make requires you to start over. Before you make those changes, are they even necessary? The website will not be able to advise you on whether changes are necessary or not.

5. You retain your own Will. Sounds great, right?

What happens if you spill your morning coffee on the file you just safely placed your Will in? What happens if you have a fire? Or the safe with your Will was just stolen? Your original Will is now gone and cannot be replaced. You will have to go online and start over, and probably pay the cost again to recreate it. Most courts require the original Will, not a copy in order to probate it. As a courtesy to our client’s, we retain your original Will in a fire proof safe, and you are welcome to it at any time.

6. Other essential Estate Planning documents.

Along with a Will, do you have a Power of Attorney? Did you know a Will only kicks in after death? What if you or your significant other becomes incapacitated? Who will make your, financial and medical decisions? These are documents we strongly suggest everyone have. See if the website you are one explains the need for a Power of Attorney and that there are different types, financial and health care. An experienced attorney can explain each of these to you and when and how they may come into play, to help you make an informed decision on whether you need them or not.

 

We are experienced attorneys at Perry Law Office and offer free phone consultations. We will happily walk you through the process and answer all of your questions and resolve any of your issues. We then draft your Estate Planning documents to fit your individual needs.

Wills, Financial Power of Attorneys, Health Care Power of Attorneys, and Living Wills, are important documents and choosing the right combination of estate planning documents can be daunting. Do you need all of these? Maybe? Let’s talk about it and decide what is the appropriate for your current needs. There are also reasons that arise that would cause you to update your plan, and you should be reviewing it with every major life change. Since our attorneys have been working with you from the beginning, they will help you make changes to your plan with ease and advise you on whether an updated Will or Power of Attorney is necessary for you.

Perry Law Office, your local Fort Wayne attorneys. Call us today, 260-483-3110

 

IMPORTANCE OF ESTATE PLANNING: “WHAT IF” ~ WILLS

Planning for the Future

No one wants to think about the “what ifs”. Therefore, most people ignore them and do not plan ahead. Do NOT be one of those people when it comes to preparing your Last Will and Testament. Your eventual death is not a “what if” it is a when. Hopefully, it is a long time from now, but “what if” that is not the case. And even if it is, why not be prepared now?

What if….

A Last Will only comes into play after an individual passes away. A Will is NOT only for you, but also for your loved ones that you leave behind. What if, I get in an accident on the way home from work? What if I have a heart attack tomorrow? Who will take care of my children?  If you have minor children or pets, a Will is a great way to ensure they are in good hands if you unexpectedly pass away. Naming a guardian is one of the most important things you can do as a parent.

What else does my Will do?

A Will also allows you to more easily pass on your assets after your death to those you love. It is a legal document that is essential to any estate plan. A Last Will ensures that your children or other loved ones receive your real and personal property. It allows a legal means for your loved ones to more easily navigate the tricky law of Estates and Probate. A Will may help prevent disputes or hard feelings between your heirs as to whom you wanted to leave some of your personal items. Your Will is your last voice after death directing how you wish you estate and assets be distributed. Don’t you want a saying in how that is done?  Do not leave your loved ones unprepared upon your death, plan ahead and contact the Fort Wayne lawyers at Perry Law Office to help create a Will that meets your specific needs.

DO I NEED A WILL?

When do I need to get a Will?

Every adult should probably have a Will or some other estate plan that they have thought about and implemented. A Will is perhaps the most common estate planning device and is one of the simplest and easiest to implement.

Most people do not think about getting a Will until an event in their life causes them to feel the need to do so. Some of the most common calls, we at Perry Law Office often get are calls from newlyweds, couples or individuals that have just had or are expecting their first child, someone in bad or deteriorating health, or from an adult child regarding their mother or father who has put it off way too long. We have also had calls from people who did not consider the need for an estate plan until they were getting ready to go on a trip, cruise, other family vacation. All of these are great reasons to start thinking about a Will.

However, it is best, to consider some sort of an estate plan early in your adult life, but you are never too old to start this process either. A Will can be changed/improved to correspond with the changes in your own life. I have never heard someone say I got my Will done too early. But often times, family members and loved ones have approached us and asked what do we do, my father/mother, child, grandparent, sibling, or other loved one had no Will? It can be a bit more tricky and cause unnecessary delays and issues.

Who will get my assets?

You never know what the future might bring, and if you die without a Will or other estate plan, your assets might not be distributed to the persons that you want. Assets are anything you own at the time of your death. This could be money, real estate, vehicles, houses, stocks, etc.  For example, an adult unmarried individual that has no children and dies without a Will or other estate plan would have their assets distributed to their parents, and their brothers and sisters. This may or may not be what they would actually want to happen. A Will is an easy way to dictate where your assets go and who gets them. People are often surprised at how easy, and inexpensive it is to create a simple estate plan. They often comment that if they had known it would be this easy they would have done it much earlier.

 

Naming a Guardian for your child/children:

If you have minor children, it is very important to have a Will. A Will allows you to name the guardian of your minor children. This person will care for your children until they turn 18 years old. There are many things to consider in naming a guardian of your minor children. The person you name must be able and willing to take your children in the event of an unexpected death. Also you may want to consider where your guardian lives or their habits. Does he/she spend their winters in Florida or another warm place? Does he/she live in a different city, county, or state. Your children will move to where your guardian lives. In your Will you can also dictate that you do NOT want your children to be split up or separated. These are just a few of the many reasons why naming a trusted person to be the guardian of your most valuable asset(s) is very important! 

 

Call Perry Law Office today and speak to one of our experience lawyers for a free telephone consultation to determine if now is the right time for you to consider a Will, or some other type of estate plan.  

What are a Landlord’s responsibilities if a Tenant dies?

This is a common question with numerous semi-complicated answers depending on certain facts. I will try to explain the most common questions Landlords have when a current Tenant dies.

One common misconception, is that once a Tenant dies their lease is terminated or canceled. That is not necessarily true. A Personal Representative or holder of a Small Estate Affidavit may continue to the pay the rent as normal while they administer the deceased Tenant’s estate.

Who has a right to access the apartment, take personal belongings, or receive a security deposit refund?

  • There are a number of ways an heir or other interested party can acquire the right to a deceased Tenant’s apartment, belongings, and return of security deposit. Make sure you keep a copy of whatever document they provide and ask an Attorney if this document gives them the right and protects you if you allow access to the apartment.
    1. The most common is by being appointed the Personal Representative (or Executor) of the deceased Tenant’s estate. Once appointed, that person, now steps into the shoes of the deceased Tenant and has the duty to inventory, dispose of, and handle all of the Tenant’s affairs. If the estate is over $50,000 in value they still must go through the Probate process and be appointed as Personal Representative.
    2. If the tenant’s total assets are under $50,000 a Small Estate Affidavit may be used, which gives that person the rights as if they were appointed a Personal Representative by the Court. This does NOT require filing anything with the Court.
    3. The 3rd and less common way for someone to gain access is by having an Affidavit for Information only. This affidavit allows a person to access the apartment, review financial documents, and other things to determine the estimated value of the state prior to them deciding if it must be probated or they can use a Small Estate Affidavit.

What do I, as a Landlord have to do?

  • A Landlord should NOT provide access to any third party (i.e., give them a key or unlock the door) without them having provided proof as set forth above.
  • Get a copy of any document presented to you giving this person Authority to Access. Can ask to see their driver license or other form of ID to prove they are the correct person. Keep copies in the Tenant’s file.
  • A Landlord should NOT change locks or prevent a third party access who may already have a key. That is NOT the Landlord’s responsibility unless they have a reasonable belief that unauthorized people are stealing or damaging the apartment.
  • A Landlord should work with the person, as it is in their best interest to allow that person to remove items and return possession as soon as possible. Chances are, in most cases the Landlord will have little recourse to go after an estate of a deceased Tenant for unpaid rent or damages as there is usually no or very little money.

What about Security deposits, 45 Day Letters (letter itemizing how security deposit was applied), and personal property left in the apartment?

  • These processes stay the same, Landlord must follow the rules and laws regarding returning the deposit, sending the 45 day letter, and proper storage and disposal of personal property. Landlord can take it a bit further and reach out to an emergency contact if no person has contacted the Landlord regarding the deceased Tenant to try to determine who should receive letters, remove property, receive refund of security deposit, etc.
  • If you have tried to return the security deposit and it was never cashed for some reason or another, and you have used due diligence and reasonably attempted to find an appropriate person, you should then turn the deposit over to Indiana Unclaimed. You have to provide as much relevant information as you can. Then the state of Indiana holds the money and waits to see if any interested party ever claims it. You do NOT want to hold money and be responsible for it.

 

For more information on Landlord Law or to speak with us, contact Perry Law Office for a free consultation.