There are four section to the paperwork:
1. List of ALL debts
2. List of EVERYTHING you own and the value
3. 25 questions that have to be answered
4. Monthly budget
All answers are under oath and must be truthful and complete.
Categories of Debt:
1. Yucky - student loans, etc.
2. Collateral - mortgage, vehicle loans, rent to own items, etc.
3. No Collateral - credit cards, lines of credit, store credit, etc.
Chapter 7 - 'No collateral' debts are wiped out in 90 days. Choose which collaterals you want to keep.
Chapter 13 - 'No collateral' debts are wiped out in 3-5 years. Choose which collaterals you want to keep.
Last Will and Testament
What is a Last Will and Testament?
A Last Will and Testament is a document that directs what will happen to your stuff after you pass away and who will be in charge of taking care of what you want to happen.
Who should have a Last Will and Testament?
While a Last Will and Testament is very important, most people want to wait to create a Last Will and Testament until they feel they are nearing the end of their life. Unfortunately, a lot of people wait until it is too late. You should have a Last Will and Testament if...
You have children - Whether you are a single parent or a two parent household, it is vital to have a Last Will and Testament that names someone to care for your children. In the event that one or both parents pass away without a Last Will and Testament, the children could end up in foster care until a lengthy and expensive court battle is completed to determine who should care for the children... and the worst part is you are not there to give your opinion on your wishes.
You are in a long-term relationship, but are not married - Even if you feel like you do not own anything that makes you need a Last Will and Testament, you need one. If you pass away in some sort of accident, your significant other will not receive insurance benefits or pay outs or money awarded in lawsuits. They will also have issues with any utilities that are in your name and having access to anything of yours that does not also have their name on it (like bank accounts).
You own a house or real estate - Land almost always means that you need a probate. Having a Last Will and Testament dramatically reduces the price and complexity of a probate.
You have been divorced - If you are in a second marriage, having a Last Will and Testament will make it so you can provide for your children from a previous marriage. Without a Last Will and Testament, all of your half of the community property from the current marriage will go to your surviving spouse; none of your half of the community property will go to your children from the previous marriage.
Why do I need a lawyer to help with my Last Will and Testament (I can just get one online)?
It is dangerous to use a one-size-fits-all form. The form may not use the proper language and you might not word the language properly. For example, leaving your estate “to my three children or their survivors” is not the same as “to my three children, or if deceased, their children.”
Another issue is that the form you use might not be specific to New Mexico and it might not meet the standards necessary for a Probate. A good example would be Video Wills, New Mexico does not consider a Video Will a valid Last Will and Testament. Which means that if someone passed away in New Mexico and only had a Video Will, New Mexico would not recognize the person as having a Last Will and Testament when the person died.
It is important to talk to an attorney to make sure your wishes are properly worded and prepared. Our office has seen the devastation that can be left behind when someone passes without a Last Will and Testament. Nothing is more heartbreaking than watching a family be torn apart over simple misunderstandings.
A Last Will and Testament not only makes sure your wishes are followed, but also helps keep the peace. When everyone in the family knows what you want, they are less likely to fight. Contact our office today to set up your appointment.
Power of Attorney
What is a Power of Attorney?
A Power of Attorney is a document that allows you to give another person permission to act on your behalf, in the situations you have chosen.
Who should have a Power of Attorney?
The easy answer is that everyone should have a Power of Attorney. A Power of Attorney can be a lifesaver, but a lot of the time, by the time the Power of Attorney is needed, it is too late to get one. For example, once someone becomes incompetent, it is too late for them to give a Power of Attorney. Likewise, if there is an accident and you need someone to make decisions, you may not conscious to give a Power of Attorney.
So, yes, it is vital for everyone to have a Power of Attorney. However, it is important to only pick someone you can trust. Which brings me to the next question....
If someone has a Power of Attorney for me, do they get to make all of my decisions instead of me?
NO. Allowing someone to have Power of Attorney does not mean that they get to run your life for you, against your wishes. You still get to make all of your own decisions. A Power of Attorney shares power to do things; it does not give up the power to run your own life. If at any time you change your mind about someone having Power of Attorney or suspect they may be misusing the Power of Attorney, please contact a lawyer immediately to find out how to cancel the Power of Attorney and how to protect yourself.
Why do I need a lawyer to help with my Power of Attorney (I can just get one online)?
It is true that you can find plenty of Power of Attorney forms online, but here are a few reasons why you should at least meet with an attorney before signing an online Power of Attorney:
1. Each state has different rules on what must be in a Power of Attorney and how it needs to be done. Meeting with a local attorney will give you the chance to make sure that Power of Attorney will be recognized where you live.
2. A Power of Attorney should be specific about what you are giving someone permission to do on your behalf. The legal system is very picky about the wording it uses, much like the difference in baking soda and baking powder. The two sound very similar, but mixing them up in a recipe is going to make a huge difference.
3. You might only need to give a Limited Power of Attorney. Our office can help tailor your needs for you.
4. It is also important to speak to a lawyer so that you know all of the rules around your Power of Attorney - like when it starts and when it ends.
Having a Power of Attorney that has been reviewed by a local lawyer is something everyone should have. Our office can help prepare a Power of Attorney that is tailored just for you.
Advance Health Care Directive
What is an Advance Health Care Directive?
An Advance Health Care Directive is a document you sign in advance that allows you to give another person permission to make medical decisions on your behalf if you are unable to make the decisions. It is a medical Power of Attorney. The Advance Health Care Directive also has end of life decisions for you to choose and allows you to state a preference for a guardian, should you need one.
Now is the time to have a serious conversation with your loved ones about your end of life wishes. But if it is not in writing, the doctors may not do what you told your family that you want.
Who should have an Advance Health Care Directive?
Everyone should have an up-to-date Advance Health Care Directive. In the event you are in an accident and are unable to make health care decisions for yourself, it is important that there is someone who can express your wishes to the health care providers. Without an Advance Health Care Directive, the hospital will not talk to your parents or children because HIPPA regulations say they have to keep your information confidential.
If I have an Advance Health Care Directive, is that enough?
Another important aspect to your Advance Health Care Directive is having a conversation with the person you are appointing to make your health care decisions for you. It is very important that they understand what your wishes are. For example, if a machine is the only thing keeping you alive, do you want them to take you off of the machine?
Why do I need a lawyer to help with my Advance Health Care Directive (I can just get one online)?
It is true that you can find plenty of Advance Health Care Directives online, but here are a few reasons why you should at least meet with an attorney before signing an online Advance Health Care Directive:
1. Each state has different rules on what must be in an Advance Health Care Directive and how it needs to be done. Meeting with a local attorney will give you the chance to make sure that Advance Health Care Directive will be recognized where you live.
2. An attorney can explain what the Advance Care Directive covers and explain what the differences are between the options.
Having an Advance Health Care Directive that has been reviewed by a local lawyer is something everyone should have. Our office can prepare the Advance Health Care Directive for you.
What is a Probate?
A Probate is the legal process of transferring a deceased person’s legal interests and the things that person owned to another person or persons.
What is the difference between intestate and testate?
The difference between intestate and testate is whether someone died with a Last Will and Testament or not. If someone is “intestate,” that just means that they did not have a Last Will and Testament when they passed away. If someone is “testate,” that means they did have a Last Will and Testament when they passed away.
What advice would you give when someone passes away?
The three most important pieces of advice that our office would give to everyone is:
1. Don’t rush to do anything. Don’t close any bank accounts with the deceased’s name on them for at least one year.
2. When the funeral home asks how many copies you need of the Death Certificate, get 10 or 12 copies. When everything is said and done, it is not a big deal if you have extras. However, if you do not order enough, it can be difficult to order more and it is a very time consuming process.
3. Consult an attorney. Especially before paying any bills. Talk to an attorney so you can learn whether or not you need a Probate, how to protect your rights and interests, or how to handle debts and assets; it is very important to discuss these questions early on.
Why do I need a lawyer for a Probate?
There are a lot of small things that can impact a Probate. Before you file anything, pay anything, or give anything away, the first thing you should do is consult an attorney. An attorney can review the situation and give important information on how you should proceed.
An attorney can determine if a Probate is needed. Explain which court you should file the paperwork. What paperwork you need to fill out. What bills to pay. How to document everything that you need to document. Our office can answer all of these questions and more.
We understand that losing someone is not only emotional, but extremely stressful. We can help you traverse this difficult path with patience and confidence. Call our office today to set up your consultation.
Income Diversion Trusts
What is an income diversion trust?
If a spouse has to go into a nursing home, and the couple cannot afford the cost of the nursing home, they can apply for Medicaid to pick up the cost. However, Medicaid will required the infirm spouse to assign over all their income to help pay for the costs. This means that the spouse that stays home just lost the income of the infirm spouse.
In order to qualify for Medicaid, there is an income test and an asset test. Sometimes, the infirm spouse has a bit too much income to pass the income test, but still does not have enough income to pay the full cost of the nursing home. An income diversion trust is created to solve that problem. The infirm spouse's income goes into the income diversion trust. Only enough income comes out to make the infirm spouse Medicare eligible - and that income that comes out is paid to Medicaid. Whenever the infirm spouse passes away, the remainder of the money in the income diversion trust is then also paid to Medicaid to reimburse it for the nursing home costs.
Frequently Asked Questions