A Guide to Social Security Survivors Benefits

Social Security Benefits

What are Survivors Benefits: A Brief History

Economic insecurity was a social issue our nation addressed over 80 years ago with the enactment of the Social Security Act in 1935. What most people don’t realize is that the Act also provides survivors benefits: spouses, children, and dependent parents of a deceased worker can receive survivors benefits. Yet, few people understand the program rules for eligibility and may be reluctant to ask.

How to Become Insured for Survivors Benefits

Eligibility for Social Security survivors benefits is a matter of insured status. With few exceptions, a worker can insure his or her family for Social Security survivors benefits once the worker has 40 quarters of covered earnings. Breaking this down more simply: that’s 10 years of employment where the worker earned at least $5,640 per year, or $1,410 per quarter (2020 required amounts—prior years may be lower), in wages or self-employment income. The actual benefit amount will vary depending on the worker’s individual earnings and the number of quarters of taxes paid on those earnings, and can be greater for a family with more than one survivor (e.g. surviving spouse with surviving minor children in the care of a surviving spouse).

However, if the worker had income or wages not subject to the FICA tax then the worker will not be insured. Some examples are (1) state employees or public school teachers who pay into a state-sponsored, exempt retirement system, or (2) self-employed workers who fail to report their earnings to the IRS. 

Who Can Receive Survivors Benefits?

This is a 2-part question. First, is the question of the worker’s insured status (see above). Second, is the question of the survivor’s relationship to the deceased worker. Spouses and children may be eligible to claim on their deceased spouse or parent’s work record, but they must be able to prove their legal relationship to the deceased spouse/parent. Social Security follows state laws concerning the family relationship. For a child, this could become an issue if parentage was never established during the worker’s lifetime. For spouses that were “common law” married to the worker, but were never married in a civil ceremony, this could also pose a problem. A probate attorney can counsel and assist the family with the necessary state court proceedings to establish these family relationships. 

When Should You Apply for Survivors Benefits?

Application should be made as soon as you learn of the worker’s death, or otherwise become eligible under Social Security rules. Social Security will not pay more than 6 months of retroactive benefits for a minor child and 12 months for an eligible surviving spouse. Additionally, it’s important to understand that only eligible survivors can receive Social Security survivors benefits. Children can receive survivors benefits, but only until they are 18 years old and have graduated high school. Additionally, the living parent caring for a surviving minor child under the age of 16 may be eligible for Social Security survivors benefits if that parent had been married to the worker. This is true even if the surviving parent was divorced from the worker before the death occurred. An adult child who became disabled prior to the age of 22 may be eligible to receive survivors benefits into adulthood.

A surviving spouse is entitled to survivors benefits once they reach age 60 and as long as they have not re-married prior to then. However, if the surviving spouse is disabled, then they can apply for survivors benefits as early as age 50, but must apply within 7 years of the deceased spouse’s death. Additionally, if a surviving spouse claims the survivors benefits prior to their full retirement age, the benefit will be reduced. Finally, a divorced surviving spouse is also entitled to survivors benefits if they were married to the worker at least 10 years and did not re-marry prior to the age of 60.

Social Security survivors benefits can provide financial security during a time of loss. Understanding your benefits is a first step to preparing a lasting legacy for your family.

If you have questions about Social Security survivors benefits in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me, a Social Security Attorney, to discuss further. In addition to in-person consultations, I am also available by teleconference and videoconference. I also represent individuals in probate and guardianship proceedings needed to establish family relationships for the purpose of receiving Social Security survivors benefits.

7 Ways to Avoid Probate

Avoid Probate Image

Can I estate plan to avoid probate? In short, yes, there are some ways to exclude assets from probate.

What is Probate?

Probate refers to the legal process for distributing the assets of a deceased person, and often requires the assistance of an attorney and a court proceeding. Not only does probate come with a cost, court proceedings are a matter of public record. Privacy is also a driving factor in avoiding probate. Some of the below methods provide for the the transfer of assets without any public disclosures.

Here are a few estate planning methods for probate avoidance in Texas:

  1. Living Trust—In Texas, a fully funded Living Trust could potentially avoid the probate process. Any assets transferred to the trust can be administered and distributed according to the terms of the trust, even after the creator of the trust dies, and without the need for a court proceeding.
  2. Lifetime Gifting—Why wait until you die? You can transfer your assets during lifetime as a gift, and once that transfer is completed, the assets are not subject to probate. Gifting is also a great way to plan around potential estate taxes because certain lifetime gifts are excluded from the federal estate gift tax.
  3. Payable on Death accounts—Many financial institutions offer checking, savings, and brokerage accounts with a payable on death option. This is a contract between you and the financial institution that tells them who to pay the account balance to upon your death. The person you designate as the beneficiary of the account has no right to access account funds during lifetime. However, caution should be exercised here. Financial institutions often include terms in their depository agreements that give them the option to apply account balances at death to unpaid fees or even loan balances before distributing any funds to your designated beneficiary. Additionally, these account funds could be subject to garnishment for the payment of funeral expenses.
  4. Beneficiary Designation(s)—This method allows you to designate a beneficiary of the proceeds of a life insurance policy, or funds saved in a retirement account, upon your death.
  5. Transfer on Death Deed (TODD)—this is a Deed that providers for the transfer of real estate upon the death of the owner. If the deed is properly drafted, executed, and recorded in the deed records prior to death, the real estate will transfer to the beneficiary designated on the deed without the need for probate.
  6. “Ladybird” Deed—This is a Deed similar to a Transfer on Death Deed, because the effect of this deed is to transfer real estate to a person named on the deed without the need for probate. Users of this method should also proceed with caution and consult an estate planning attorney because this method has no statutory basis.
  7. Affidavit of Heirship—This method is used after a person dies, usually by the heirs of the deceased person’s estate during a real estate sales transaction in which all parties are agreed. An Affidavit of Heirship simply documents facts concerning the identity of the deceased person and his or her heirs and is filed in the deed records.

Plan for Avoiding Probate

As the saying goes, “the best laid plans of mice and men often go awry”, and engaging in self-help to avoid probate is no exception. Consult an estate planning attorney or probate attorney if you have any concerns about the probate process. Most of the time, probate cannot be avoided. Too often people leave behind assets that they neglect to plan for and most of the above-listed methods require careful, advance planning. Additionally, financial institutions prefer to act under court documents that appoint someone to act on behalf of the estate.

However, probate complications can be mitigated with careful estate planning. Moreover, probate can be a great tool for dealing with the debts a person leaves behind and should be carefully considered anytime someone dies with substantial debt.

If you have questions about estate planning to avoid probate here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me to discuss further. In addition to in-person consultations, I am also available by teleconference and videoconference. 

Estate Planning During Uncertain Times

Life Planning image

Is there a Right Time to Estate Plan?

Absolutely. When it comes to estate planning, there is no time like the present. Illness, death, and taxes are some of the few certainties about life and are also good reasons to think about estate planning. The problem is that there is usually no known timeline for these events. Thus, if you intend on planning for these events, it’s best not to wait.

Nobody sees an untimely death coming, but we are now living during unusual circumstances. COVID-19, a novel illness, with no vaccine and no known cure, is forcing all of us to face our mortality. Although the disease, like many other flu-like illnesses, is most lethal in our elderly and immune-compromised populations, it is also inexplicably striking down young, and seemingly, healthy individuals.

How to Make Life Planning Decisions

With the knowledge of an indiscriminate virus on the loose, why wouldn’t you choose to estate plan? To make important life decisions? Yet, what I am hearing repeatedly from colleagues, friends, news, and Internet chatter is that people are struggling with making good life decisions. I call it “analysis paralysis” or “reactive” living, and it’s an unstable state of being.

If you are having difficulty making life decisions, the best way to start is to seek out good counsel. This can be friends and family, but when dealing with any financial or legal decision, it’s best to consult the professionals. As an estate planning attorney and legal counselor, I am called upon regularly to assist with making important life decisions. Not only do estate planning attorneys have knowledge about probate and estate administration laws, but many of them, like myself, have knowledge of the negative consequences of inaction. This information can be very instructive in decision-making and life planning.

As for when to make important life decisions, the time is now. And not just because a novel coronavirus is threatening our way of life, but because planning and making well-counseled decisions leads to a more positive life experience. When we are proactive in life, we can generally handle a financial or emotional setback.

So, go, make that important life decision–whether it’s getting back to something you enjoyed about life (albeit in a socially responsible manner), or to start creating a stable future.

If you would like to receive counsel and advice on life planning and estate planning during COVID-19 here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me to discuss further. In addition to in-person consultations, I am also available by teleconference and videoconference. 

 

What is a Living Will?

COVID 19 Design

And what you need to know about a Living Will during the COVID-19 pandemic.

When you are admitted to the hospital for treatment, you will be asked if you have any estate planning documents like a “Living Will”. In Texas, we call this document a “Directive to Physicians and Family or Surrogates” (or “Advance Medical Directive”, for short). But what is this estate planning document really about for our clients based in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area?

A “Living Will”, or Advance Medical Directive, is your legal way of telling your family and doctors whether you want “life-sustaining treatment” if you become gravely ill. A “life-sustaining treatment” is exactly how it sounds–a medical treatment that keeps you alive no matter your underlying diagnosis. In Texas, a “life-sustaining treatment” could include food and water administered through a tube in your vein, or through your gastrointestinal tract. It could also include “mechanical breathing machines”, or “ventilator”, as the term is more frequently used in the news lately.

Living Will, Ventilators, and COVID-19.

The American Thoracic Society has explained that “[a ventilator] helps support a person until other treatments become effective, or the person gets better on their own.” However, in the case of COVID-19, there is currently no known cure or vaccine. There is also a lot of speculation about how this novel illness should be treated. Yet, there is ongoing public and private planning surrounding ventilator use and the availability of ventilators during the COVID-19 pandemic. Therefore, not only should you be discussing the risks and benefits of ventilator use with your medical providers, you should also communicate with your loved ones about your wishes for end-of-life-care and estate plan.

With so much unknown about COVID-19 right now, having these discussions is at least one way to provide some certainty during life.  A Living Will allows you to state in advance, not only whether you approve the use of a ventilator when your life is threatened by COVID-19, but also place conditions on its use.

If you have further questions about a Living Will or Advance Medical Directive here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me, a local estate planning attorney, to discuss further.

For questions about the risks and benefits of utilizing life-sustaining treatments such as a ventilator, please speak with your treating medical provider.

Mental Health and Guardianship: How to Get Help

Mental Health image2

I frequently receive phone calls from friends or family members of an individual suffering from a mental health crisis. Their question is the same, “Can I get a guardianship over them and force them to take their medications, or get psychiatric care?”  Or sometimes the question is whether they can get a trust or some other legal document to prevent the person from spending their money irresponsibly or giving it away. 

Although my heart goes out to these families, it pains me to tell them that guardianship is not a likely remedy and here is WHY:

Due to major changes in Texas guardianship law over the last five (5) years, it has become increasingly difficult to obtain guardianship over a disabled person. Statutory probate courts, which have the responsibility of overseeing these cases, are closely scrutinizing applications and applicants for guardianship. As a result, not only has obtaining a guardianship become challenging, but more costly.  

Applicants for guardianship (friends or family members of the individual) are required, by law, to consider feasible alternatives to guardianship and supports and services before they file for guardianship. For people suffering through a mental health crisis such as suicidal depression, a manic episode of bipolar disorder, psychosis, or a severe drug or alcohol addiction, there is at least one important alternative to guardianship that statutory probate courts also oversee: a mental health commitment. 

The process for an involuntary commitment to a psychiatric hospital can be found in Chapter 574 of the Texas Health Code. This process allows family members to alert the police and the court to situations where a person may need immediate psychiatric care if they are “likely to cause serious harm” to themselves or others. The policy behind this process is that with time and the right treatment, these individuals are usually able to return to a stable mindset. As such, guardianship is viewed as unnecessary under these circumstances and even an infringement of the individual’s constitutional freedoms. Additionally, courts encourage the use of power of attorney forms and supported decision-making to assist individuals dealing with short-term declines in mental health or borderline cognitive functioning, as a feasible alternative to guardianship.  

Guardianship, therefore, should be thought of as a long-term solution to severe mental decline. Generally, a probate court will approve a guardianship application when the individual is completely unable to care for themselves and/or their property and finances on a permanent basis. Medical conditions that tend to result in this finding include severe intellectual or developmental disabilities, traumatic brain injury, post-stroke dementia, and Alzheimer’s dementia. 

Attorney Adriane S. Grace regularly consults with families on guardianship, alternatives to guardianship, and supports and services including public benefits, and helps them navigate and implement these options to avoid costly guardianship proceedings where possible. She also assists families, when guardianship is necessary, to navigate the legal process in uncontested proceedings, and to defend the application, or applicants, in contested proceedings involving complex family dynamics. Contact Attorney Adriane S. Grace if you have questions about whether guardianship is available to you in Frisco, Prosper, Plano, McKinney, Dallas, & Allen Texas area.  

Attorney Adriane Grace Published in Texas State Bar Journal

REPTL Logo

Attorney Adriane S. Grace’s article, “What the Estate Planning Attorney Needs to Know About Social Security Fee Authorization and the New Executive Orders“, was published in the latest issue of The REPTL Reporter (Volume 58, Issue 2 May 2020). The REPTL Reporter (REPTL) is the official journal of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

In addition to her wills, trusts, guardianship, and probate law practice, Ms. Grace is a Social Security appeals attorney. She regularly encounters overlaps in these practice areas and offers legal advice and assistance navigating the intersection of state and federal laws. For questions, contact Attorney Adriane S. Grace.

Attorney Adriane Grace Featured Speaker at the 2020 North Texas Probate Bench Bar Conference

Featured Speaker

The North Texas Probate Bench Bar is a yearly conference held in March during which time members from the probate bench and bar (judges and attorneys) from North Texas come together to hear updates on important legal topics in Estate Planning, Probate, and Guardianship. This year, Attorney Adriane S. Grace was selected by the planning committee to speak at a general assembly of the bench and bar on March 5, 2020 about “Social Security Rules the Estate Planning, Guardianship, and Probate Attorney Should Know.”

Featured Speaker

Attorney Adriane S. Grace featured speaker at the 2020 North Texas Probate Bench Bar Conference

As a Social Security Appeals Attorney and a practitioner in probate and guardianship law, Ms. Grace has identified overlaps in Social Security procedural rules and state laws on probate and guardianship. Ms. Grace used the speaking opportunity to educate local judges and her colleagues about these overlapping rules and how to navigate these issues as well as provided an update on new Social Security rules pertinent to their practice areas. As a former appellate attorney for the Social Security Administration, Attorney Adriane S. Grace possesses intricate knowledge of Social Security processes and procedure as well as the agency policies driving their rules. She is often called upon by colleagues practicing in many different areas of law for advice and assistance when their cases become impacted by Social Security issues.

The North Texas Probate Bench Bar conference is a well-attended event by estate planning and probate attorneys from Dallas, Collin, Denton, Tarrant, Rockwall, and Grayson counties as well as all the statutory probate judges and county court at law judges hearing probate cases in these counties. This year, there were approximately 300 attendees.

Attorney Adriane Grace Featured in “Above the Law” on Motherhood in the Legal Profession

We-Are-Having-A-Baby-Letters-Updated

Attorney Grace is featured in Above the Law , an online legal news publication, for a three-part series about motherhood in the legal profession. Above the Law is a national website for legal news published by Breaking Media.  Read the first article Above the Law – How To Have A Maternity Leave With A Solo Practice.  Stay tuned for upcoming articles.

Law Office of Adriane S. Grace, provides legal services for individuals in Dallas, Collin, and Denton counties in the areas of Estate PlanningProbateGuardianship, and Social Security. Please contact Attorney Grace today to learn more about how she can help you with your legal needs.

Avoiding Social Security Scams

SS-Scammer

If you have called Social Security recently, you probably heard a recorded message notifying you about ongoing social security scams. Unfortunately, scammers frequently target our most vulnerable members of society: the elderly and disabled. Thus, it is important to understand how these scams work and know what steps you should take if you, or a loved one, has been targeted by a social security scammer.

How a Social Security Scam Works

These scams usually involve someone calling by phone, claiming they are an employee of the Social Security Administration. They will give some reason for calling that requires your immediate attention. For example, they may say the computers are down and there is a problem locating your information; or that they need to enroll you in a Medicare plan; or that your social security number is being suspended; or that your bank account is about to be seized. Next, the caller will ask you to take some action. The caller may ask you to confirm your social security number, bank account information, your date of birth, and/or your mother’s maiden name. Once the caller has this information, they will be able to open credit card accounts in your name. Alternatively, the caller may ask you to wire money to them, send cash, or put money on a gift card. Anyone who asks you to do these things is definitely a scammer.

How to Avoid a Social Security Scam

Scammers are becoming more technologically advanced. Oftentimes, when they call, Social Security’s main telephone number, 1-800-772-1213, will appear on your caller ID. Here is what you need to know first: Social Security primarily communicates with you by U.S. mail. It is rare for a Social Security representative to contact you first by phone. Usually, a phone contact occurs under specific circumstances. For example, when multiple attempts at mailing letters to your address have failed, or if you initiated a phone appointment with Social Security either by beginning an application for benefits online, or previously calling the main number.

Second, Social Security sends all its decisions and announcements by mail because they are required to by law. Because you have a right to appeal the determinations of the Social Security Administration, you are entitled to written notice of any determination concerning your benefits. Therefore, if there is a problem with your benefits, you will hear about it first through a letter sent in the mail; not by a phone call.

Last, if you get a phone call and are not sure whether you are talking to a representative of Social Security, do not give them any of your personal information. Instead, advise the caller that you are not available to discuss the matter at this time and hang up the phone. Immediately call the main number at 1-800-772-1213 and wait to speak to a Social Security representative. The representative who answers that line will be able to tell you if there have been any changes in your benefits and can confirm if Social Security has sent any letters to you.

Reporting Social Security Scams

Finally, if you realize you have been a victim of a social security scam, be sure to report it. Social Security scams should be reported to the Office of the Inspector General (OIG) at Social Security, and can also be reported to the Federal Trade Commission (FTC). OIG will want to know as much information as possible to assist with an investigation such as the name of the caller, the telephone number the caller used, the time and date of the call, information requested by the caller, and any other identifying information. The OIG can be reached at 1-800-269-0271, or you can file a report online here. Similarly, you can report the call to the FTC at ftc.gov/complaint.

*Adriane S. Grace is a Social Security Attorney who regularly represents individuals in Social Security appeals in the Dallas, Frisco, McKinney, Plano, Allen, and Prosper Texas area. She regularly serves as a social security consultant to other attorneys, advises individuals on eligibility issues concerning retirement and survivor benefits, and has assisted families with Texas court proceedings necessary for obtaining these benefits. Attorney Grace is licensed to practice law in Texas and Virginia and is a former Attorney-Advisor to the Social Security Administration. For more information about Attorney Grace, please check out her Attorney Profile.