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I am named as Executor in a Will – Am I Required to Serve?

By Emily Martin, Esq.

If you have recently experienced the death of a loved one, you may be trying to get their affairs in order. That might include looking through their documents to see whether they had a will and determining how their assets should be distributed now that they have passed away. If you do find a will, you may be named as the executor of that will. Alternatively, if there is no will, you may have heard that you can qualify as the administrator of the estate in order to have the ability to manage the assets in the estate.

In order to serve as an executor or administrator of an estate, the person wishing to qualify must make an appointment with the probate clerk for the city or county in which the decedent lived at the time of their death. At the appointment, you will be required to disclose information about the decedent’s assets and take an oath pledging to fulfill your duties as executor or administrator. You may be required to pay certain taxes or filing fees depending on the value of the estate.

Many people think that if they are named the executor of a will, or if they are the next of kin to someone who does not have a will, they are legally required to go down to the courthouse and qualify as executor or administrator. However, this is not the case. Anyone can decline to serve as executor or administrator in favor of someone else or can simply refuse to qualify at all. In fact, there are many situations in which an estate administration attorney might recommend that you not qualify as the executor or administrator of an estate.

The Estate Is Insolvent

When you qualify as the executor or administrator of an estate, you are taking on the responsibility of making sure the debts of the estate are paid in the correct order according to the law. Debts of the estate can include mortgages, credit card balances, medical bills, loans, and any other debts that the decedent may have had at his or her death. If the debts of the estate exceed the assets of the estate, then the estate is considered insolvent. If this is the case, then by the end of the estate administration process, there will be no assets for the heirs of the estate to inherit. In many cases, because there is no possibility of an inheritance for the heirs of the estate, it does not make sense for anyone to qualify as executor or administrator of the estate.

There Are No Assets in the Probate Estate

When someone passes away, they often own assets that will have to go through the probate process before they can be distributed, but they may also own other assets that are not part of the probate estate – often referred to as “non-probate” assets. Non-probate assets can include bank accounts with a beneficiary designation, accounts that were owned jointly with right of survivorship, life insurance policies with a beneficiary listed, or retirement accounts that had a beneficiary designation on them.

Non-probate assets can be passed directly to their designated beneficiaries without the need for an executor or administrator to transfer the assets. For that reason, if all of the assets of the decedent are considered non-probate assets, it may be unnecessary to qualify as the executor or administrator of the estate.

The most important thing to remember is that, just because you are named in someone’s will or you are the next of kin of someone who passed away, it does not mean that you are legally required to qualify as the executor or administrator of an estate. Unfortunately, once you qualify and take on that responsibility, it can be very difficult to resign from that position without legal consequences. All too often, clients come to an estate administration attorney only after they have qualified. It is always best to seek the guidance of an experienced estate administration attorney before your appointment with a probate clerk.

Ask Kit Kat: Beagle Brigade

Hook Law Center: Kit Kat, what can you tell us about the beagle brigades at many US airports?

Kit Kat: Well, this is a cute story! My parents first encountered a fruit-sniffing beagle at the Honolulu airport in 1999. They were travelling back from Honolulu to Norfolk after a cruise around the Hawaiian Islands. Entering Hawaii, it had been clearly announced to bring no fruit into the islands, but no one had said anything about bringing fruit from Hawaii back to the mainland. My parents had a lovely fruit basket in their stateroom, all wrapped in clear plastic wrap, which had never been touched during the cruise. So my mom placed it in her carry-on item. Sure enough, a friendly beagle started nosing around the bag, and my mom was told to discard the fruit before boarding their plane. She was so embarrassed!

Anyway, fast forward to 2019. Atlanta’s Hartsfield-Jackson Airport and Chicago’s O’Hare Airport added beagles to their surveillance program as of mid-March. Beagles are already on the job at other border entry points across the US and abroad. Their job is to sniff out parcels or bags carrying meat and plant products. Such items can carry insects or other small pests which could hurt plants and animals in the areas to which the traveler is going. The Mediterranean fruit fly is one such pest which can severely damage citrus groves. Pork can carry African swine fever, so meats are searched for, too.

Beagles were selected for the task, because they have incredible powers of detecting different scents. Also, beagles are non-threatening, even friendly. The newest members of the beagle brigade are Chipper, Marlee, Chaze, and Cardie. They will serve in Atlanta and Chicago, and they all came from shelters. Marguerite Stetson, a Customs and Border Patrol agent who trained Chaze, said, “We try to utilize the dogs that are out there are already looking for a home and a job.” Sounds like a great plan to me! (Trisha Ahmed and Saeed Ahmed, “A brigade of beagles helps the US save billions at America’s busiest airports,” CNN, March 15, 2019)

Posted on Monday, March 25th, 2019. Filed under Senior Law News.

What Do You Mean Medicare Won’t Pay?

By Letha Sgritta McDowell, CELA

Many clients and their families find themselves in a situation where they have had a stay in a hospital and then are discharged to a skilled nursing facility for rehabilitation and therapy.  For many this is a short-term need, and they are able to participate in therapy and return to their lives in the community.  The length of stay differs for each individual as do their needs; however, many are advised of the “100 days” for which Medicare will pay and are then shocked when they are advised 2 weeks later that they or their loved one are being “discharged,” because Medicare will not pay.

The 100 Medicare days are a rehabilitative benefit covered under Medicare Part A.  In actuality, Medicare pays the cost of skilled nursing care for the first 20 days.  After day 20, there is a daily co-insurance amount of $170.50 per day. Many individuals are never aware of the $170.50 daily cost, because their Medicare supplement plan covers that cost.  It is correct that skilled nursing care benefits under Medicare and Medicare supplements extend for a maximum of 100 days per spell of illness.  However, should the patient not meet certain standards, then the number of days of coverage may be much shorter than 100.

Unfortunately, there is a misconception among skilled nursing facilities and other providers that Medicare coverage only extends if the patient is improving or otherwise progressing in therapy.  If the patient has “plateaued,” then Medicare will no longer cover the cost of skilled nursing care.  However, this is incorrect and can and should be protested or otherwise appealed.

This incorrect “improvement standard” has been an issue nationwide for years and was the subject of a class action suit which was settled in the 2013 case Jimmo v. Sebelius.[i]  In the 2013 case, the Center for Medicare and Medicaid Services (“CMS”) agreed that the policy for Medicare payment was not an improvement standard. In actuality, Medicare should continue coverage if the patient was either making improvements or if skilled services are necessary to provide care which is necessary to prevent or slow further deterioration, regardless of the patient’s ability to improve or progress. This settlement did not reflect any change in Medicare policy; instead, it simply clarified the Medicare policy as it currently existed. In addition to the clarification, CMS agreed to revise policy direction and educate providers about the correct standard to apply.

Despite the 2013 settlement, in 2017, the issue was again brought before the federal courts. A federal judge found CMS to be in breach of the 2013 settlement agreement.  The judge required CMS to take corrective action to ensure that the appropriate standard applied, which in turn, was to assure coverage to individuals needing skilled care services and who were entitled to coverage under Medicare.  As part of the corrective action, CMS published a new web page with appropriate clarifications.[ii]      

With appropriate application, many individuals should receive care which is paid for by Medicare, regardless of their ability to “improve.” Despite this federal case and guidance issued by CMS, many clients and their families hear the term “discharge” long before 100 days of coverage.  Should this occur, there are several options to consider.  The first is whether the provider is inappropriately applying the standard.  Is the provider indicating that the patient has “plateaued” or otherwise not in need of therapy services?  If this is the case but the patient still has a skilled need such as gastronomy feeding, overall management and evaluation of a care plan, or assessment of a changing medical condition, then the patient or their family should discuss the issue with the facility or provider.  If the facility or provider refuses to cooperate, then the issue may be appealed.  The Center for Medicare Advocacy, a non-profit organization dedicated to advancing access to comprehensive benefits provided by Medicaid for older adults and people with disabilities, has developed a self-help toolkit to assist patients and their families with appeals based on this issue.[iii]

If the provider is correct and skilled care is not needed, then the patient and their family should consider what care their loved one will need.  If the loved one needs 24-hour care and they are not currently living at home, then options and settings should be considered. The patient or their family may request for them to stay at the facility in a long-term care bed.  This stay may not need to be permanent, but some individuals need additional time to recuperate from an illness, and some families need additional time to prepare appropriate living space and arrange care.  It is important to know that, whatever the patient and family decision may be, the discharge planner at every facility is required to make a safe and appropriate discharge plan.

Unfortunately, early discharge or termination of Medicare services still happens regularly.  However, patients and their families armed with appropriate knowledge may be able to extend coverage and services available to themselves or their loved ones, thus improving  their quality of life and longevity.


[i] https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/Downloads/Jimmo-Settlement-Agreement.pdf

[ii] https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html

[iii] https://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/

Ask Kit Kat: Prairie Dogs

Hook Law Center: Kit Kat, what can you tell us about preservation activities in the West to protect prairie dogs and other animals of the Great Plains?

Kit Kat: Well, this really is a story of hard work and persistence which will pay off handsomely for many animals of the Great Plains. The Humane Society of the United States (HSUS) has a Prairie Dog Coalition which for years has worked to protect habitat for animals on the Great Plains such as prairie dogs, black-footed ferrets, burrowing owls, and others. It took seven years, but the Prairie Dog Coalition finally secured a two-year grant from the Pittman-Robertson Wildlife Restoration Act to research the animals on the Great Plains.  The grant will allow study in 12 states, Mexico, and Canada, to determine optimal soil types, types of vegetation and climate zones, so the target animals will be able to thrive in the future. With the data gathered, conservationists and planners will be able to make informed decisions based on scientific information. The grant, known as Homes on the Range, began in the fall of 2018 and will continue into 2020.

There is some urgency to the project. In the past 100 years, prairie dog numbers have declined by more than 95 percent. In turn, this has affected as many as nine species which depend on the prairie dog for survival. For example, borrowing owls use prairie dog burrows and black-footed ferrets need prairie dogs as one of their food sources. According to Sterling Krank, an environmental scientist with the Prairie Dog Coalition, “We’ve got to do better than always reacting. Let’s figure out a way to work together to create opportunity net gains on the ground. That’s where we make a real difference for wildlife.” This new grant, hopefully, will do just that!

(Emily Smith, “Team effort to conserve grasslands,” All Animals, January/February 2019, p. 15)

Posted on Monday, March 18th, 2019. Filed under Senior Law News.

Where is My Tax Refund?

By Amanda L. Richter, CPA

After you have filed your tax return you may be anxiously awaiting your refund and wondering what the status is. Fortunately, with just a few clicks, you can track the status of your federal and state tax refunds online.

The Internal Revenue Service “IRS” has an online tool called, “Where’s My Refund,” that will allow you to track the status of your return from receipt to completion. You can begin checking the status of your return as soon as 24 hours after you electronically file your Federal return (or four weeks after paper filing your return). Simply log onto https://www.irs.gov/refunds and make sure you have the following information handy, your social security number, your filing status (i.e. Single, Married Filing Joint, etc.) and the exact refund amount you anticipate receiving.

The IRS issues most refunds in three weeks (21 business days) if you electronically filed your return and up to six weeks if you paper filed. Your refund may be delayed if you opted to receive your refund as a check versus direct deposit. Other reasons your tax refund may be delayed can include:

  1. Errors or incomplete tax return.
  2. You claimed certain tax credits including Earned Income Tax Credit or Additional Tax Credit.
  3. You are affected by identify theft or fraud.
  4. Or the tax return needs further review in general.

If more than 21 days has passed since you electronically filed your Federal return or six weeks after you mailed a paper return you can call the IRS at 1-800-829-4477 to speak with an agent.

The Virginia Department of Taxation also allows you to check your state refund online. You can check the status of your return 72 hours after electronically filing or four weeks after paper filing your return. To do so, go online to: https://tax.virginia.gov/wheres-my-refund.

Ask Kit Kat: Zebra Stripes

Hook Law Center: Kit Kat, can you tell us why zebras have those interesting stripes?

Kit Kat: Well, scientists don’t know exactly the complete story as of yet, but they have gained some preliminary insights. The consensus is that the stripes ward off flies which can carry serious diseases.

Studying zebras is not the easiest thing to do. In the wild, it is extremely difficult to get close to them. So, some scientists in Britain were very clever, and devised a way to create the look of a zebra on an ordinary horse. They designed a camouflaged-lightweight wrap which covered the entire horse, except for its head and legs. The flies still attacked the uncovered parts of the horse, but the area which was covered with the wavy stripes was not attacked. The stripes seemed to have the effect of disorienting the flies, as if their vision, which tends to have low acuity, could not process what they were seeing. Therefore, they veered away from the camouflage and did not bite those areas. Dr. Martin How of the University of Bristol in Britain and one of the researchers on the project compares the zebra stripes to a barber pole. When the  barber pole rotates, it makes it seem as if the stripes are moving up or down. So, as the fly zooms in to its prey, the zebra’s stripes and the stripes in the camouflage wrap appear to be moving in unfamiliar directions. The fly is confused, and so zooms away.

The researchers are planning further tests to refine their observations. Do different patterns and thicknesses have the same effect? “By playing around with those variables, we’ll be able to get inside the head of the fly, or the eye of the fly, to work out what’s sort of confusing to it, says Dr. Tim Caro, another researcher from Britain on the project. (JoAnna Klein, “Why Do Zebras Have Stripes? Scientists Camouflaged Horses to Find Out,” Science section, The New York Times, 2-20-19)

Posted on Monday, March 11th, 2019. Filed under Senior Law News.

Medicare Enrollment – Doing It Wrong Could Cost You!

By Jennifer Rossettini, CFP®

A recent New York Times article described the plight of a gentleman who turned 65, but failed to enroll in Medicare because he was already enrolled in a health insurance plan through his employer[i]. While this plan of action is fine under certain circumstances, he was subsequently laid off from his employer and later learned that the coverage he received under COBRA did not exempt him from the complicated Medicare enrollment rules and the penalty for not enrolling in a timely manner.

The Basics of Signing Up

If you claim Social Security benefits before your 65th birthday, enrollment in Medicare Part A (hospitalization) and Part B (outpatient services) is automatic. If you have not yet applied for Social Security before your 65th birthday, you must take proactive steps with regard to Medicare to avoid problems.

Medicare offers an initial enrollment period around your 65th birthday – beginning three months before your birthday, including the month of your birthday, and continuing for the three months after your birthday. If you miss this window, you will be subject to a late enrollment surcharge equal to 10 percent of the standard Part B premium for each 12 months of delay – a penalty that never ends. Late enrollment also exposes you to significant gaps in coverage while waiting for coverage under Medicare, because late enrollees must wait until the next General Enrollment Period, which runs from January 1st to March 31st each year, with coverage not beginning until July 1st.

Common Mistakes

  1. Relying on employer coverage – People who are actively employed at age 65, and their spouses, can delay enrollment in Medicare as long as they are “actively” employed by the employer. COBRA does not count as active employer group coverage. In addition, if you work for a company with 20 or fewer employees, Medicare becomes the primary payer, so you must sign up when you turn 65.
  2. Having a Health Savings Account – HSA’s can only accept contributions from people enrolled in high-deductible health plans and Medicare does not qualify as a high-deductible health plan. Although you can continue to withdraw from an HSA while enrolled in Medicare, you should stop contributing to one six months prior to your Medicare enrollment date to avoid tax penalties.
  3. If you are insured under the Affordable Care Act – you must switch to Medicare at age 65, because marketplace coverage is considered secondary to Medicare. Otherwise, you will have to wait until the General Enrollment Period, leaving you exposed to coverage delays plus penalties.
  4. If you are on Retiree Coverage – similar to marketplace coverage, retiree coverage is always secondary to Medicare. A common error is turning down Part B Medicare coverage in the belief that the supplemental retiree coverage is primary. Again, failing to enroll in Medicare at age 65 will expose you to coverage delays and penalties.

In light of the foregoing, a simple rule of thumb would be to always consider Medicare to be your default, primary coverage.


[i] https://www.nytimes.com/2019/01/31/business/medicare-enrollment-how-to-sign-up.html

Ask Kit Kat: Coyotes Near Us

Hook Law Center: Kit Kat, what can you tell us about coyotes who infringe on human’s territory?

Kit Kat: Well, they’re only doing what comes naturally. Humans have drastically reduced the number of wolves countrywide, so this has allowed coyotes to flourish. Coyotes can be found in every state except Hawaii. Coyotes can live in the desert, in swamps, and in urban areas. They’re extremely adaptable. Coyotes won’t purposely seek humans out, but sometimes their territory  overlaps with ours.

What can we do to more peacefully co-exist? There are several things actually. First of all, don’t attract them by leaving trash cans unsecured. That’s an invitation to pick up easy meals. Also, don’t let small pets like cats and small dogs roam outside without supervision. Small domesticated animals resemble squirrels, mice, etc. To them, they’re all fair game.  Next, coyote pups are born in the spring. If you know a den is nearby, avoid it. Coyote parents take their role seriously. They mate for life, and they’re protective of their offspring. If they sense that humans are getting too close, they may follow you, to get you away from their pups. Lastly, if you do encounter a coyote at close range, you can wave your arms, throw sticks, etc. They’ll get the picture, and probably leave you alone. They rarely attack humans. In fact, there has only been one fatality ever recorded in the United States from a coyote attack. That’s a pretty good record, if you ask me!  (Nancy Lawson, “The Misunderstood Coyote,” All Animals, January/February 2019, p.38-39)

Posted on Friday, March 1st, 2019. Filed under Senior Law News.
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