How are people related? Understanding consanguinity

Test your knowledge with this question: What relation to you is the child of your cousin?

  1. Nephew
  2. Cousin
  3. Second cousin
  4. First cousin once removed

The question raises an issue of “consanguinity” – the relatedness of family members. As an estate planning and elder law attorney, I constantly need to know how to refer to relations based on blood and marriage.

I rely on a consanguinity chart to help me with the trickier questions of relatedness. You can find an example here. A chart visualizes the relations and makes it easy to find the correct term.

As to the quiz question above, most people pick C, second cousin. But the correct answer is D, first cousin once removed.

Your first cousin is the child of your aunt or uncle, and also the grandchild of your grandparents. Your second cousin is the grandchild of your great-aunt or great-uncle, and also the great-grandchild of your great-grandparents.

But the child of your cousin is your first cousin once removed. What makes the title “first cousin once removed” so confusing to me is that it is also the title of your second cousin’s father or mother. It turns out, though, that each type of “first cousin once removed” shares the same percentage of your DNA, as you can see from this chart.

See why I use a consanguinity chart? If you do too, you’ll keep even distant relations straight.

Warning signs of undue influence

The most common reason for contesting a will is an allegation of undue influence – that is, that someone close to the person creating a will (called the “testator”) gained a substantial benefit by persuading the testator to favor that person, at a time when the testator suffered from a weakened intellect.

When an estate planning attorney meets a new client for the first time, it’s important to watch for warning signs of undue influence. After all, we all want to create valid estate plans that will stand up to scrutiny, not buy our clients a lawsuit.

Here is the advice I give other attorneys about the common warning signs that may indicate the possibility of undue influence.

Warning signs

The first warning sign happens when besides the testator calls to arrange the appointment, or brings the testator to the appointment, or both. The elderly and disabled often rely upon others to make appointments and provide transportation, so this occurrence alone does not necessarily spell trouble, but it could be a sign that making changes to the estate plan was not the testator’s idea.

A much more troublesome sign happens when someone speaks for the testator. For example, you ask Mrs. Jones what brings her in today and her companion says, “She wants to change her will.” Or Mrs. Jones may, when asked a question, turn her companion as if looking for the answer, at which point the companion answers your question. If either of these occurs, you will need to meet with the testator alone.

Another obvious warning sign occurs when you learn that the purpose of the meeting is to make changes to a distribution scheme that favors some beneficiary or beneficiaries at the expense of others. Again, the testator may have a sound reason for doing so and have the reasoned judgment to make that change, but it could indicate someone has influenced the testator.

Sometimes you learn in the course of your interview that the testator has received a diagnosis that potentially affects cognition, such as dementia, brain tumor, or a similar condition. Such a diagnosis alone does not preclude valid estate planning, but such a diagnosis is almost surely noted in the testator’s medical records, and could provide a basis for someone to make a contest.

Take appropriate action

Meeting with the testator alone when doing estate planning is a good practice, and vital when these warning signs appear. Excuse any companions to the lobby or waiting room.

Reassure the testator that this is your standard practice, that everything said in the meeting is confidential, and that you want to make sure that you understand his or her wishes, free from the influence of anyone else. Explore the reasons for making the desired changes at this time and note them for your file.

Ask pertinent questions to make sure the testator has capacity. If you believe the testator lacks capacity, is being coerced, or is under undue influence, do not proceed to write a will. If you can’t determine capacity with certainty, consider getting the written opinion of a doctor or psychologist. If you find the testator has capacity, and is under no coercion or undue influence, make thorough notes in your file to support your conclusion.

If you take the proper measures, the estate plans you write will be much more likely to withstand any future scrutiny.

Questions asked and answered from our last workshop!

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  1. I have elderly parents with modest assets. Is it possible to protect any of those assets?
  2. What is the financial impact of parents moving into my home for care? Do I have liability as their Power of Attorney? Is it possible to use Veterans Benefits for their care in my home?
  3. What is the criteria for a disabled child (exempt transfer)? Can I transfer assets to a disabled child without a Medicaid eligibility penalty?
  4. My mom is 87 years old and she is $600 short each month after paying for care. Should I sell her house?
  5. Can I do IRA planning to minimize taxes and maximize benefits to my heirs?
  6. What are the tax consequences of transferring $50,000 as a gift in a single year?

Join us at our next workshop and have your questions answered! Click here to see upcoming dates.

When is it too late to protect assets when qualifying for Medicaid?

asset-protectQuick answer: when all (or almost all) of your assets are spent down and you’re qualified for Medicaid benefits.

Until that time, there are usually opportunities for some savings.

Most people are aware that Medicaid provides benefits for long term stays in skilled nursing, and that the Medicaid rules require applicants to spend down assets to a certain level before qualifying for benefits. Many are also aware that an applicant can keep some assets, like a house and a car, and still get benefits.

Fewer people know that some assets can be transferred away without incurring any type of penalty. These “exempt transfers” (you can read more about them here) include transfers such as establishing a special needs trust for the benefit of a disabled son or daughter, or deeding a house to a caregiver child.

Another way to protect assets is to transfer them to the spouse of the applicant (in Medicaid parlance, called a “community spouse”). Medicaid law contains a number of provisions allowing the community spouse to keep assets, but people often need the advice of an experienced elder law attorney to know how to take advantage of those opportunities.

In addition, an applicant may also have the opportunity to purchase exempt assets. That is, an applicant may be able to use funds that would otherwise be spent down and use them to benefit the applicant or someone else in the family.

In short, you may have many opportunities to protect assets, even when someone has already entered a nursing home. We can help you to devise a plan tailored to getting the best result possible in your situation.

Questions asked & answered at yesterday’s “Estate Planning Essentials” workshop

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  1. Can I protect assets for my heirs?
  2. How can I avoid court and family disputes?
  3. How can I set up a trust?
  4. Is it true that “probate” costs a lot? Should I avoid probate?
  5. If I have no children or trustworthy people in my life, who can I appoint as my agent or executor?
  6. What is Medicaid Planning?

Join us at our next workshop and have your questions answered! Click here to see upcoming dates.