%(67 35$&7,&(6 6(0,1$5 - cdn.ymaws.com · hon. james g. kube district judge of the 7th...

2019 YOUNG LAWYERS SECTION {YLS} BEST PRACTICES SEMINAR

Michael G. MullinKutak Rock LLP

FRIDAY MARCH 15, 20199:00 AM - 4:00 PMCREIGHTON UNIVERSITY SCHOOL OF LAW2133 CASS STREET OMAHA, NEBRASKA

Mark A. WeberNebraska Counsel for Discipline

Bell IslandIsland Law Office, PC LLO

Dave E. CoppleCopple, Rockey, McKeever & Schlecht, PC LLO

Hon. James G. KubeDistrict Judge of the 7th Judicial District

Christin P. LovegroveHeinisch & Lovegrove Law Office, PC LLO

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2019 YOUNG LAWYERS SECTION {YLS} BEST PRACTICES SEMINAR

FACULTY BIOSMichael G. Mullin Kutak Rock LLP

Mark A. Weber Nebraska Counsel for Discipline

Bell Island Island Law Office, PC LLO

Dave E. Copple Copple, Rockey, McKeever & Schlecht, PC LLO

Mike Mullin has been an a orney for 39 years. Between 1980 and 2000, Mr. Mullin tried more than 50 jury trials in cases involving personal injury, product liability, and toxic torts. He was inducted into the American Board of Trial Advocates, the Interna onal Associa- on of Defense Counsel, and Li ga on Counsel of America.

Mr. Mullin mediated his fi rst case in the year 2000. Since that me, he has mediated over 3,400 disputes in 14 states thus far. One of the busiest mediators in the United States, Mr. Mullin currently mediates approximately 300 disputes per year. He mediates virtually all types of civil disputes, including catastrophic injury/wrongful death claims, professional malprac ce disputes, class ac ons, FLSA collec ve ac ons, FELA claims, employment discrimina on claims, business and commercial disputes, real estate disputes, and environmental disputes.

Mr. Mullin has been inducted as a Dis nguished Fellow into the Interna onal Academy of Mediators, a Fellow of the American College of Civil Trial Mediators, a charter member of Na onal Academy of Dis nguished Neutrals, and a cer fi ed member of the American Academy of ADR A orneys.

Mr. Mullin received his Juris Doctor from Creighton University School of Law.

Mark A. Weber has served as the Nebraska Counsel for Discipline since 2014. Prior to his role as Counsel for Discipline, Mr. Weber was a trial a orney for nearly 30 years, focusing his prac ce on personal injury, criminal cases, insurance li ga on, and commercial work. He served as a member of the Nebraska Supreme Court Advisory Commi ee (which advises on a orney ethics issues) from 2004-2014 and chaired the commi ee from 2007-2014. As Counsel for Discipline, Mark directs the opera ons of the regula on and discipline func ons of the Nebraska lawyer disciplinary system under the supervision of the Nebraska Supreme Court. Mr. Weber received his Juris Doctor from Creighton University School of Law.

Bell Island is a warrior for the ci zen accused. A er gradua ng law school, Bell worked for the Sco s Bluff County Public Defender’s Offi ce challenging the government in all manner of charges. Bell le the Public Defender’s Offi ce and started his own prac ce where he con nues to fi ght for the ci zen accused and challenges the government’s ability to obtain a convic on. Bell is a Regent for the Na onal College for DUI Defense and a past president of the Nebraska Criminal Defense A orney’s Associa on and a Regent to the Na onal College for DUI Defense. Bell is Board Cer fi ed by the Na onal College for DUI Defense and a Graduate of the Trial Lawyers College.

David E. Copple’s li ga on prac ce is regional in scope. He has li gated cases in or represented clients from Arizona, California, Colorado, Illinois, Indiana, Iowa, Kansas, Massachuse s, Minnesota, Missouri, Montana, Nebraska, South Dakota, Tennessee, Texas, Wisconsin and Wyoming.

Mr. Copple’s comprehensive prac ce emphasizes sophis cated li ga on for plain ff or defendant in cases involving personal injury, products liability, corporate law, commercial law, banking law, creditor bankruptcy, securi es, wrongful death, and real estate law.

Mr. Copple has li gated closed head injury, midair plane collision, and trauma c personal injury automobile accident cases. He also has li gated various real estate, construc on and probate ma ers. He has represented clients in products liability li ga on cases involving ssue transfer and toxic exposure. Mr. Copple has also successfully tried felony criminal cases, a felony manslaughter case and a fi rst degree murder case.

Mr. Copple received is Juris Doctor from the University of Nebraska School of Law.

Con nued

Hon. James G. Kube District Judge of the 7th Judicial District

Christin P. Lovegrove Heinisch & Lovegrove Law Office, PC LLO

Judge James G. Kube is a District Judge in the 7th Judicial District. Prior to taking the bench in 2009, he was in private prac ce. Judge Kube received his Juris Doctor from the University of Nebraska College of Law.

Chris n P. Lovegrove is a partner at Heinisch & Lovegrove Law Offi ce, PC LLO, in Geneva, Nebraska, and specializes in the areas of estate planning, family business en es, real estate, probate, trust administra on and agricultural issues. She is a member of the Nebraska State Bar Associa on; the Agricultural Law Sec on; the Young Lawyers Sec on Execu ve Team; the co-chair of the Real Estate, Trust and Probate Sec on; and a member of the Leadership Academy Class of 2013.

Michael G. MullinKutak Rock LLP

FRIDAY MARCH 15, 2019MARCH 15, 2019 CREIGHTON UNIVERSITY SCHOOL OF LAW OMAHA, NEBRASKA

Ten Ways to Be More Persuasive in Your Next Mediation

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1Kutak Rock LLP4841-9163-6510.1

TEN WAYS TO BE MORE PERSUASIVE IN YOUR NEXT MEDIATION

Michael G. MullinKutak Rock LLPEmail: [email protected] Website: www.kutakrock.com/mediation/mullin

1. Choose the right location for your mediation.

• Frequently, one client will not feel comfortable going to the offices of theopposing party’s counsel. Accordingly, a neutral site is frequently the best optionfor the location of a mediation. If the mediator does not have available space,consider finding available space in the courthouse, using meeting rooms at ahotel, etc.

• Make sure that the accommodations are comfortable, and that the parties have theability to get refreshments, walk around, go outside, and otherwise not feel“trapped” in a single room.

2. Prepare your client properly for the mediation.

• Be sure to describe the mediation process to your client in advance of themediation. Some clients are unfamiliar with mediation, and enter the processnervous or scared. This anxiety can be significantly reduced if the attorneyspends some time to describe the process to the client and familiarizes the clientwith the process.

• Make sure the client understands that mediation involves a back-and-forthnegotiation process. I have encountered mediations where a client was surprisedthat he or she was expected to compromise from the initial settlement proposal.This creates a risk of an early impasse.

• Do whatever you can to help your client have realistic expectations. One of themore frequent obstacles to a successful mediation is when a party has unrealisticexpectations as to a result. Occasionally, I see situations where an attorney hasfostered the unrealistic expectations, and then decided to let the mediator dealwith the unrealistic expectations. However, this will typically involve theattorney having to contradict an evaluative opinion previously given to the client

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earlier in the case. This can create a scenario where the client believes that his orher attorney is “selling out” or afraid to take the case to trial. In most situations, itis better for the attorney to address the weaknesses in a client’s case prior toarriving at the mediation conference, so that the attorney can remain consistent inhis or her evaluative comments both prior to and during a mediation.

• Make sure the client understands that a good settlement is one in which neitherside has achieved its “home run” result, and in fact both sides may be somewhatdisappointed in the settlement.

3. Prepare the mediator properly for the mediation.

• Submit a position statement to the mediator that includes a summary of the keyissues, includes copies of significant documents and pleadings, and sets forth thatparty’s position on the key issues.

• Do not be afraid to contact the mediator via telephone or email in advance of themediation if there are any issues or dynamics that should be brought to themediator’s attention. There is no legal or ethical issue in having a party or party’sattorney have a private caucus with the mediator in advance of the mediation.Such communications might focus the mediator to a particular aspect of thenegotiations or otherwise alert the mediator to a dynamic that an attorney ishesitant to address in a written position statement.

• Although the prevailing practice is for counsel to send position statements andsupporting materials solely to the mediator, consider sharing your materials withthe other side. Particularly in the case of plaintiff attorneys in personal injuryactions, the best opportunity to persuade is 10 to 14 days prior to a mediationwhen you can attempt to influence the insurer’s “round table” process. Ways toinfluence a “round table” process include:

- A well-prepared PowerPoint addressing damages and, if necessary, liability.

- Color photographs depicting the nature and extent of the Plaintiff’s injuries.

- Color photographs depicting the damage to the vehicles if the damage issignificant.

- Reports from treating physician addressing diagnosis, causation, prognosis,future medical treatment and permanent impairments.

- Itemization of all claimed medical bills with copies of the actual bills(redacted as needed for insurance/Medicare/Medicaid payments).

- Consider using Dropbox or a similar document vault to hold the documents,videos, medical reports and grant access to opposing counsel and all claimspersonnel.

3Kutak Rock LLP4841-9163-6510.1

- Consider sending two position statements if there is confidential informationthat you wish to provide to the mediator. One would be a position statementand supporting materials provided to opposing counsel, and secondconfidential letter or position statement provided only to the mediator.

4. Generally, opening statements by counsel should be avoided.

• Although opening statements are used, and in fact may be required, by mediatorsin other parts the country, I have concluded that they are counter-productive to theprocess. Opening statements frequently alienate if not anger the opposing party.On numerous occasions, particularly when it was more common to have theattorneys make opening statements back in the 1990’s and early 2000’s, I wouldneed to spend the first couple of hours in a mediation addressing the hostilitycreated by opening statements.

• A skilled mediator can convey one party’s positions to the other party in a lessthreatening, less confrontational way than the attorney for one of the parties.Even when I have seen an attorney make a relatively gentle opening statement, Ihave seen the opposing party react as though that party was being personallyattacked.

5. Have a negotiating strategy.

• Decide whether or not to engage in negotiations prior to the mediationconference, or whether it is preferable for the parties to proceed to mediation withno prior negotiations.

• Frequently, one back-and-forth round of pre-mediation negotiations will behelpful to the process. First of all, an initial proposal and counter-proposal willset the parameters from which the parties will be expected to negotiate.Furthermore, one round of pre-mediation negotiations will require the attorneys todiscuss with their clients the issues to be negotiated and provide an opportunityfor the attorneys to address unrealistic expectations and prepare the client for areasonable outcome to his or her case.

• Once at the mediation, consider whether negotiations should proceed in “babysteps” or more significant moves. Typically, if one or both parties needconsiderable education as to the legal issues, or if one or both parties haveunrealistic expectations, the negotiation process should involve multiple-back-and-forth negotiations to allow the mediator sufficient opportunity to addressthese issues with each party. If the parties both come in to the mediationrelatively sophisticated as to the issues and with realistic expectations, then theattorneys and the mediator should encourage fewer and larger moves in thenegotiations to avoid the frustration that is common with “baby step”negotiations.

4Kutak Rock LLP4841-9163-6510.1

• Consider the use of “brackets” to expedite the negotiation of strictly financialterms. A bracket proposal is one in which a party communicates a settlementrange (“we will move to A if the other party moves to B”) and the party receivingthe bracket typically responds with a counter-bracket.

6. Use caucus strategies to avoid impasse.

• If a mediator believes that one or both attorneys are an obstacle to the negotiatingprocess, the mediator may suggest that either the attorneys caucus separately withthe mediator or that the clients caucus separately with the mediator. Both areviable options to consider in trying to avoid an impasse. There is typically littledownside in having the attorneys caucus separately with the mediator. One orboth attorneys may feel the need to position and be argumentative in the client’spresence to show the client that the attorney is fighting on his or her behalf.Separated from the client, the attorneys may be more willing to speak candidlyabout possible concessions the attorneys would recommend to the client.

• I have also had success with caucuses where the parties meet with me withouttheir respective attorneys. This is more commonly used in disputes where theparties have a relationship with one another, e.g., business disputes, dissolution ofclosely held family corporations or partnerships, domestic disputes, etc.Obviously, the concern in this situation is if one party has stronger negotiatingpower than the other, whether through disparate education, communicationsskills, age, gender-based issues, etc. This is an effective means of avoidingimpasse in business-related disputes, but is typically not a good idea in personalinjury actions.

7. Allow an emotional or angry party to vent early in the mediation.

• Frequently, there is a high level of emotion and anger that is present. Theclaimant should be encouraged to verbalize those emotions to the mediator. Thiswill allow the claimant to get any emotions on the table early in the process, andset the stage for later less-emotional negotiations. A good mediator will conveythose points in a less-threatening and less-emotional manner to reduce the chancesof negotiations increasing the levels of emotion or anger.

• Mediation allows a party to verbalize how he or she has been “wronged” to a thirdparty without the stress and expense of a courtroom. Giving the clients anopportunity to express those emotions can be cathartic and instrumental inultimately reaching a successful agreement.

8. Encourage participation by individuals who can affect the negotiations.

• In some situations a client may have a family member or close friend who isproviding support and/or advice to the client with respect to the negotiations. It isfar better to have those individuals actively participating in the process than to

5Kutak Rock LLP4841-9163-6510.1

have them communicating solely with the client by cell phone without theattorney or mediator having control of such communications.

• In cases where accountants have reached dramatically different opinions as to thevalue of a particular business or asset, I have facilitated telephone conversationsbetween counsel and such expert witnesses to give the attorneys and their clients abetter understanding of the differences in the respective opinions. Sometimes, Ihave seen where one expert has used an incorrect assumption or piece of datawhere following relatively brief telephone conversations, the parties realized thatone expert’s opinion is more foundationally solid then another expert’s opinion.

9. If it appears that the parties are at an impasse, request a Mediator’s Proposal.

• A Mediator’s Proposal is a suggestion made by the mediator for a resolutionbetween the parties’ respective lines in the sand. A skilled mediator will explainto the parties and their counsel why the mediator believes that his proposal is fairand reasonable, and puts risk on both sides to the litigation. If the mediator hasbeen viewed as impartial by the parties and their counsel, frequently theMediator’s Proposal provides a basis for both parties to discuss with theirrespective counsel the pros and cons of settling on the terms proposed by themediator. Such discussions between parties and their counsel should include theattorneys’ respective opinions as to that party’s BATNA (Best Alternative To ANegotiated Agreement) and WATNA (Worst Alternative To A NegotiatedAgreement). Frequently, a Mediator’s Proposal is successful because it is aproposal that did not come from opposing counsel or from the opposing party, butfrom a neutral who may have gained the trust of the respective parties during thenegotiation process.

10. Incorporate any agreements into a signed Memorandum of Understanding.

• It is imperative that any agreement be written into a signed Memorandum ofUnderstanding and signed by the parties and their counsel. Such memorandumshould provide that it is an enforceable agreement, subject only to the preparationof a formal Release and Settlement Agreement. The Memorandum ofUnderstanding will be critical in the event that any disputes arise post-mediationas to the terms of settlement that had been reached. If a dispute as to thesettlement terms continues to be an issue following the mediation, the mediatorshould be consulted in an attempt to facilitate a resolution of any such dispute.

6Kutak Rock LLP4841-9163-6510.1

B IO GR A PHY

About Michael G. Mullin

Mike Mullin has been an attorney for 39 years. Between 1980 and 2000, Mr. Mullin tried more than 50 jury trials in casesinvolving personal injury, product liability, and toxic torts. He was inducted into the American Board of Trial Advocates, theInternational Association of Defense Counsel, and Litigation Counsel of America. (He has since resigned his memberships in theIADC and LCA but maintains his membership in ABOTA.) His litigation practice has been recognized by Best Lawyers inAmerica, Chambers USA, SuperLawyers, and Benchmark Litigation.

Mr. Mullin mediated his first case in the year 2000. Since that time, he has mediated over 3,400 disputes in 14 states thus far.One of the busiest mediators in the United States, Mr. Mullin currently mediates approximately 300 disputes per year, frequentlymediating on Saturdays and Sundays. He mediates virtually all types of civil disputes, including catastrophic injury/wrongfuldeath claims, professional malpractice disputes, class actions, FLSA collective actions, FELA claims, employment discriminationclaims, business and commercial disputes, real estate disputes, environmental disputes, etc.

Mr. Mullin has been inducted as a Distinguished Fellow into the International Academy of Mediators, a Fellow of the AmericanCollege of Civil Trial Mediators, a charter member of National Academy of Distinguished Neutrals, and a certified member ofthe American Academy of ADR Attorneys. His mediation practice has also been recognized by Best Lawyers in America since2007, and he has been honored with the following “Lawyer of the Year” awards: (Omaha’s ADR Lawyer of the Year in 2011;Omaha’s Mediation Lawyer of the Year in 2014 and 2019; Omaha’s Insurance Law Lawyer of the Year in 2017; and Omaha’sArbitration Lawyer of the Year in 2018). Chambers USA has designated Mr. Mullin a “Star” attorney, one of only two Nebraskaattorneys to achieve such status. Mr. Mullin has been recognized by SuperLawyers since 2009. Finally, the International Who’sWho in Commercial Mediation/Who’s Who Legal: Mediation has recognized Mr. Mullin seven times since 2011 as one of thetop 100 commercial mediators in the United States by a vote of his peer mediators. He is on the panel of approved mediators forthe United States District Court for the District of Nebraska and the United States Bankruptcy Court for Nebraska. He is one of12 mediators on the AAA Midwest Master Mediation Panel, and also serves as an approved panelist for Resolute Systems andMediation Works, Inc.

Mr. Mullin has demonstrated his commitment to his profession and to his community by serving on numerous law-related andcivic boards and committees. He has previously served as President of the Omaha Bar Association and President of the ADRSection of the Nebraska State Bar Association. For 25 years Mr. Mullin served as an elected member of the Nebraska State BarAssociation House of Delegates. He previously served as a board member and officer of the Nebraska State Bar Foundation. Healso currently serves on the alumni advisory board of the Creighton University School of Law and has previously served asPresident of the Board of Directors of the Omaha Children’s Museum.

Mr. Mullin credits his mediation practice to his many years of helping his wife of 35 years negotiate countless disputes amongtheir four children.

Mark A. WeberNebraska Counsel for Discipline


The Basics of the Counsel for Discipline

NOTES

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Bell IslandIsland Law Office, PC LLO


Changing Our Approachto the Criminal Trial

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Dave E. CoppleCopple, Rockey, McKeever & Schlecht, PC LLO


Should I or Shouldn’t I Take This Case?

1

Should I or Shouldn’t I Take This PI Case? 2019 Young Lawyers Section Best Practice Seminar

March 15, 2019 By: David E. Copple & Allison K. Rockey

Copple, Rockey, McKeever, and Schlecht PC LLO

I. Who would be your client? a. Interview

i. Intake Form/Contact Information 1. Age Considerations

a. Minor Child 2. Marital Status

a. Loss of Consortium Claim ii. Accident reports iii. Social Media Concerns

b. Obtain Information i. List of Potential Witnesses and Contact Information ii. List of Health Care Providers and Contact Information

II. Who would be the Defendant(s)?

a. Considerations: i. Individual ii. Corporate Entity

1. Respondeat Superior – was the driver acting within the course and scope of his/her employment?

iii. Political Subdivision Tort Claim – was the driver an officer, agent, or employee of a political subdivision?

1. Neb. Rev. Stat. § 13-905. iv. State Tort Claim – was the driver an officer, agent, or employee of

the State of Nebraska? 1. Neb. Rev. Stat. § 81-8,212.

b. Sample Preservation Letter

III. Who would be your Expert Witnesses? a. Medical Experts

i. TASA ii. Westlaw iii. NATA iv. Listserves v. Private Sources

1. Example – Merit Medical Evaluations

2

b. Accident Reconstructionist c. Others

i. Economist ii. Lifestyle Functioning and Rehabilitation

IV. What are the Injuries?

a. Medical Records i. Authorization Form

b. Preexisting Conditions

V. What are the Damages? a. Special Damages b. General Damages c. Life Expectancy

i. Mortality Table 1. NJI2d Civ. § 4.12

VI. What would be your Jury Instructions?

a. Negligence i. Statement of the Case – NJI2d Civ. § 2.01 ii. Contributory and Comparative Negligence - NJI2d Civ. § 2.02A iii. Burden of Proof

1. Greater Weight of the Evidence – NJI2d Civ. § 2.12A 2. Clear and Convincing – NJI2d Civ. § 2.12B

iv. Definition of Negligence – NJI2d Civ. §3.02 v. Proximate Cause – NJI2dCiv. § 3.44

b. Personal Injury Damages i. Joint and Several Liability – NJI2d Civ. § 4.00 ii. No Joint and Several Liability – NJI2d Civ. § 4.01

c. Negligence – Motor Vehicles – NJI2d Civ. Ch. 7

VII. What Insurance Company Considerations would you have? a. Plaintiff’s b. Defendant’s c. UIM/Underinsured Coverage

i. Neb. Rev. Stat. § 44-6412 et seq. d. Subrogation Claims

i. Examples: 1. Health Insurance 2. Medical Pay

3

3. Medicare/Medicaid

VIII. Pre Lawsuit Negotiations a. Demand Letter

i. See attached Example

IX. Filing Suit a. Venue – Neb. Rev. Stat. § 25-403.01. b. Statute of Limitations – Neb. Rev. Stat. § 25-207. c. Sample Complaint

X. Questions?

13-905. Tort claims; filing; requirements, NE ST § 13-905

West's Revised Statutes of Nebraska Annotated

Chapter 13. Cities, Counties, and Other Political SubdivisionsArticle 9. Political Subdivisions Tort Claims Act

Neb.Rev.St. § 13-905

13-905. Tort claims; filing; requirements

Currentness

All tort claims under the Political Subdivisions Tort Claims Act and sections 16-727, 16-728,23-175, 39-809, and 79-610

shall be filed with the clerk, secretary, or other official whose duty it is to maintain the official records of the politicalsubdivision, or the governing body of a political subdivision may provide that such claims may be filed with the dulyconstituted law department of such subdivision. It shall be the duty of the official with whom the claim is filed to presentthe claim to the governing body. All such claims shall be in writing and shall set forth the time and place of the occurrencegiving rise to the claim and such other facts pertinent to the claim as are known to the claimant.

Credits

Laws 1969, ch. 138, § 4, p. 628; Laws 1996, LB 900, § 1021.

Codifications: R.S. 1943, (1983), § 23-2404.

Notes of Decisions (142)

Neb. Rev. St. § 13-905, NE ST § 13-905

Current through the end of the 2nd Regular Session of the 105th Legislature (2018).

Knd of Dociniicnt 2019 Thomson Reuters. No claim to original U-S. Government Works.

WESTLAW 2019 Thomson Reuters. No claim to original U.S. Government Works

25-207. Actions for trespass, conversion, other torts, and frauds;..., NE ST § 25-207


Chapter 25. Courts; Civil Procedure

Article 2. Commencement and Limitation of Actions

Neb.Rev.St. § 25-207

25-207. Actions for trespass, conversion, other torts, and frauds; exceptions

Currentness

The following actions can only be brought within four years: (1) An action for trespass upon real property; (2) an actionfor taking, detaining or injuring personal property, including actions for the specific recovery of personal property; (3)

an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; and (4) an

action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until

the discovery of the fraud, except as provided in sections 30-2206 and 76-288 to 76-298.

Credits

Laws 1947, ch. 243, § 11, p. 766; Laws 1975, LB 481, § 9.

Codifications: R.S. 1867, Code § 12, p. 395; R.S. 1913, § 7569; C.S. 1922, § 8512; C.S. 1929, § 20-207; R.S. 1943, § 25-207.


Neb. Rev. St. § 25-207, NE ST § 25-207


End of Document C' 2019 Thomson Rciilcrs. No chiiin to oriiiinal U.S. Govcrnmcnl Works.

WESTLAW © 2019 Thonison Reuters. No claim to original U.S. Government Works.

81-8,212. Tort claims; filing; Risk Manager; Attorney General;..., NE ST § 81-8,212


Chapter 81. State Administrative Departments

Article 8. Independent Boards and Commissions(p) Tort Claims, State Claims Board, and Risk Management Program

Neb.Rev.St. § 81-8,212

81-8,212. Tort claims; filing; Risk Manager; Attorney General; duty; service of process

Currentness

All tort claims shall be filed with the Risk Manager in the manner prescribed by the State Claims Board. The RiskManager shall immediately advise the Attorney General of the filing of any claim. It shall be the duty of the AttorneyGeneral to cause a complete investigation to be made of all such claims and serve as a legal advisor to the Risk Managerand State Claims Board on all such claims. In any suit brought under the State Tort Claims Act, service of process shallbe made in the manner provided for service of a summons in section 25-510.02.

Credits

Laws 1969, ch. 756, § 4, p. 2847; Laws 1972, LB 1334, § 5; Laws 1981, LB 273, § 17; Laws 1983, LB 447, § 98; Laws 1984,LB 1028, § 2; Laws 1988, LB 864, § 22; Laws 1989, LB 541, § 3; Laws 2008, LB 821, § 3, eff. July 18, 2008.


Neb. Rev. St. § 81-8,212, NE ST § 81-8,212


End of Oocuiiioiit ^ -019 Thomson Rculcrs. No cUiiin to origiiKil L'.S. Govcrnmcnl Works.

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PLACE LETTERHEAD HERE

VIA CERTIFIED MAIL; RETURN RECEIPT REQUESTED

Truck Company Truck Driver Insurance AgencyAddress Address Address

RE: Spoliation Letter/Letter of RepresentationOur Client:Date of Accident:Our File No.

Dear To Whom It May Concern:

Our firm represents as his/her legal counsel in regards to personal injuriesresulting from a collision with a semi tractor trailer being operated by ownedby and insured by Insurance Company, which occurred on orabout , at approximately : .m., miles (direction) and miles(direction) of )city/town) in County, .The purpose of this letter is to request the preservation of certain evidence related to thisaction. If you fail to preserve and maintain this evidence, we will seek any sanctionsavailable under the law. Specifically, I request that the following evidence be maintainedand preserved and not be destroyed, modified, altered, repaired, or changed in any manner:

1. Post-accident drug and alcohol testing results;

2. Bills of lading for any shipments transported by your driver for the day ofthe accident and the eight (8) day-period preceding the accident;

3. Any permits or licenses covering the vehicle or load on the day of theaccident;

4. Your driver's daily logs or time cards for the day of the accident and thethirty (30) day-period preceding the accident;

5. Your driver's daily inspection reports for the day of the accident and theone-month period preceding the accident;

6. Daily inspection reports for the tractor and trailer involved in this accidentfor the day of the accident and the one-month period preceding theaccident;

021119///00327484

ADD LETTERHEAD HERE

MEDICAL AUTHORIZATION AND PATIENT'S REQUESTFOR CONFIDENTIAL TREATMENT OF MEDICAL INFORMATION

This authorization authorizes the following organizations or individuals to be permitted to make the requested use or disclosure of protectedhealth information (PHI):

You are hereby authorized and directed to permit the examination of and copying or reproduction in any manner, whether mechanical,photographic or otherwise, by the law firm of Copple, Rockey, McKeever & Schlecht P.C., L.L.O. at 2425 Taylor Avenue, Norfolk,Nebraska 68701, or 14680 W. Dodge Rd., Ste. 3, Omaha, Nebraska 68154,whose names appear at the top of this form or such otherpersons as they may authorize, all or any portions of the PHI desired by them of the following:

Hospital records and medical records, including patient's record cards, x-rays, x-ray readings and reports, laboratory records and reports,all tests of any type, character and reports thereof, statement of charges and any and all of my records pertaining to medical care,hospitalization, history, condition, treatment, diagnosis, prognosis, etiology or expense;

You are further authorized and directed to furnish oral and written reports to my attorneys or their delegates as requested by them on anyof the foregoing matters. I also authorize my attorneys or their delegates to photograph my person while I am present in any hospital.

By reason of the fact that such information that you have acquired as my physician or surgeon is confidential to me, you are also requestedto treat such information as confidential and requested not to furnish any of such information in any fomi to anyone without writtenauthorization from me.

I further authorize sending copies of medical and hospital bills to my attorneys.

The authorization is valid for a period of one year from the date of execution of the authorization. The undersigned individual has the rightto revoke the authorization beyond any writing. There are no exceptions to this right of revocation. The right of revocation may beexercised and revoked by written revocation, signed, dated, and witnessed by the undersigned. 1 understand that any disclosure ofinformation carries with it the potential for an unauthorized redisclosure and the information may not be protected by federal confidentialityrules. This authorization is signed freely and voluntarily.

A COPY OF THIS AUTHORIZATION FORM SHALL SERVE THE SAME FORCE AND EFFECT AS AN ORIGINAL ANDMAY BE USED FOR SUCH PURPOSE.

DATED: PATIENT:

DATE OF BIRTH: SOCIAL SECURITY NO.

STATE OF ))ss.

COUNTY OF )

Subscribed and sworn to before me this day of , 20 , by

Notary Public

021119/7/00005665:13

REV. APRIL 11, 2017 NEBRASKA DEPARTMENT OF MEDICAID ELIGIBILITYMANUAL LETTER #18-2017 HEALTH AND HUMAN SERVICES 477-000-039

477-000-039 - Life Expectancy Tables

From Social Security's Online Actuarial Publications "Period of Life Table."A period life table is based on the mortality experience of a population during a relatively shortperiod of time. Here we present the 2013 period of life table for the Social Securitv areapopulation. For this table the period life expectancy at a given age represents the average numberof years of life remaining if a group of persons at that age were to experience the mortality ratesfor 2013 over the course of their remaining life.

Period Life Table, 2013

Exact

Male Female

Death

probability

Number of

lives

Life

expectancy

Death

probability*

Number of

lives t>

Life

expectancy

0.006519 100,000 76.28 0.005377 100,000 81.05

0.000462 99,348 75.78 0.000379 99,462 80.49

0.000291 99,302 74.82 0.000221 99,425 79.52

0.000209 99,273 73.84 0.000162 99,403 78.54

0.000176 99,252 72.85 0.000133 99,387! 77.55

0.000159 99,235 71.87 0.000119 99,373 76.56

0.000146 99,219 70.88 0.000109 99,361 75.57

0.000133 99,205 69.89 0.000101 99,351 74.58

0.000118 99,192 68.90 0.000096 99,341 73.58

0.000102 99,180 67.90 0.000093 99,331 72.59

0.000091 99,170 66.91 0.000094 99,322 71.60

0.000096 99,161 65.92 0.000100 99,312 70.60

0.000128 99,151 64.92 0.000112 99,303 69.61

0.000195 99,138 63.93 0.000134 99,291 68.62

NJI2d Civ.4.12Mortality Tables—Personal Injury Cases, 1 Neb. Prac., NJI2d Civ. 4.12

1 Neb. Prac., NJI2d Civ. 4.12

Nebraska Praetice Series TM October 2018 Update

Nebraska .Jury Instructions—Civil 2dNebraska Supreme Court Committee on Practice and Procedure

Chapter 4. Damages

B. Personal Injury

NJI2d Civ. 4.12 Mortality Tables—Personal Injury Cases

There is evidence before you from life expectancy tables. This evidence may assist you in determining probable lifeexpectancy. This is only an estimate based on average experience. It is not conclusive. You should consider it along withany other evidence bearing on probable life expectancy, such as evidence of health, occupation, habits, and the like.

COMMENT & AUTHORITIES

Life expectancy tables can be found in the table section of the Revised Statutes of Nebraska.

The admission of life expectancy evidence is improper unless there is evidence of permanent injury. Zager v. Johnson,174 Neb. 106, 115, 116 N.W.2d 1, 6-7 (1962); Welstead v. Jim Ryan Constr. Co., 160 Neb. 87, 91-92, 69 N.W.2d 308,312(1955).

Future pecuniary loss is based upon one's life expectancy immediately before the injury, whereas future pain and sufferingis based upon life expectancy in the injured condition. Borcherding v. Ekliind, 156 Neb. 196, 207-08, 55 N.W.2d 643,650 (1952); Nelson v. Wiepen, 154 Neb. 458, 462, 48 N.W.2d 387, 389 (1951); Creceliiis v. Gamble-Skogmo, Inc., 144Neb. 394,402,13 N.W.2d 627, 629 (1944); Webb v. Omaha & S.I. Ry., 101 Neb. 596,600,164 N.W. 564, 565-66 (1917).

"[Ljife expectancy tables are not conclusive, but may be considered in connection with other evidence bearing on theprobable life expectancy of the plaintiff, such as health, habits, occupation, and other activities." Oberhelman v. Blount,196 Neb. 42, 49, 241 N.W.2d 355, 360 (1976) (approving the introduction of life expectancy evidence from each of thethree separate tables found in the appendix to Volume 2A of the Nebraska Statutes). Other cases supporting all or part ofthe above quotation from Oberhelman, include the following: Baylor v. Tyrrell, 177 Neb. 812,823,131 N.W.2d 393,401(1964) (lost earning capacity); Patras v. Waldbaum, 170 Neb. 20, 26, 101 N.W.2d 465,469 (1960) (tables not binding);Husak V. Omaha Nat'l Bank, 165 Neb. 537, 546-47, 86 N.W.2d 604, 609 (1957) (life expectancy can be proved without

introducing life expectancy tables; if introduced, tables are not conclusive); Jacobsen v. Poland, 163 Neb. 590, 604, 80N.W.2d 891, 904-05 (1957) (tables not conclusive).

See also, NJI2d Civ. 4.01, Authorities. Regarding life expectancy in a wrongful death action, see NJI2d Civ. 4.60 andthe Authorities thereto.

i- 2018 By The Nebraska Supreme Court

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NJI2d Clv.2.01 Statement of the Case—Negligence, 1 Neb. Prac., NJI2d Civ. 2.01


Nebraska Practice Series TM October 2018 Update

Nebraska .lury Instructions—Civil 2dNebraska Supreme Court Committee on Practice and Procedure

Chapter 2. Negligence: Statement of the Case; Affirmative Defenses; Burdens of Proof: Res ipsa Loquitur; Presumptions; Numberand Nature of Parties

A, Statement of the Case and Affirmative Defenses

NJI2d Civ. 2.01 Statement of the Case—^Negligence

I. Plaintiffs Claims

A. ISSUES

This case involves (here state date, place, and nature of occurrence).

The plaintiff[, insert name, J claims that the defendant/, insert name,] was negligent in one or more of the following ways:

(Insert a list of statements of the negligence claimed by the plaintiff, against the defendant.)

The plaintiff also claims that (he, she, it was injured, [and] his, her, its property was damaged) as a result of that negligence,and seeks a judgment against the defendant for (his, her, its) damage.

The defendant admits (here state what defendant admits, by pleading or otherwise, if anything).

The defendant denies (here state what defendant denies).

[The court has determined as a matter of law that the following facts exist and you must accept them as true: (Here stateany facts so determined).]

B. BURDEN OF PROOF

Before the plaintiff can recover against the defendant, the plaintiff must prove, by the greater weight of the evidence,each and all of the following:

1. That the defendant was negligent in one or more of the ways claimed by the plaintiff;

2. That this negligence was a proximate cause of the (insert descriptive word such as occurrence, accident, collision, fall,

et cetera);

3. That the (occurrence, accident, collision, fall, et cetera) was a proximate cause of some damage to the plaintiff; and

4. The nature and extent of that damage.

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NJI2d Civ.2.02AContributory and Comparative Negligence, 1 Neb. Prac., NJI2d Civ. 2.02A

1 Neb. Prac., NJI2d Civ. 2.02A


Nebraska Jury InstrucCions—Civil 2dNebraska Supreme Court Committee on Practice and Procedure

Chapter 2. Negligence: Statement of the Case; Affirniative Defenses; Burdens of Proof; Res ipsa Lotpiitur; Presumptions; Numberand Nature of Parties

A, Statement of the Case and Affirniative Defenses

NJI2d Civ. 2.02A Contributory and Comparative Negligence

A. ISSUES

In defense to the plaintiffs claim, the defendant claims that the plaintiff (himself, herself, itself) was negligent in oneor more of the following ways:

(Insert a list of statements of the negligence claimed by the defendant, against the plaintiff)

The plaintiff admits (here state what the plaintiff admits, by pleading or otherwise, if anything).

The plaintiff denies (here state what the plaintiff denies).

B. BURDEN OF PROOF

In connection with (his, her, its) claim that the plaintiff was negligent, the burden is on the defendant to prove by thegreater weight of the evidence both of the following:

1. That the plaintiff was negligent in one or more of the ways claimed by the defendant; and

2. That this negligence on the part of the plaintiff was a proximate cause of (his. her, its) own (injury, damage).

C. EFFECT OF FINDINGS

If the plaintiff has met (his, her, its) burden of proof and the defendant has not met (his, her, its) burden of proof, thenyour verdict must be for the plaintiff.

2. If both the plaintiff and the defendant have met their burdens of proof, then you must compare the negligence of eachwith that of the other.

a. If upon comparison you decide that the plaintiffs negligence was more than slight, or that the defendant's was less

than gross, then your verdict must be for the defendant.

b. If, however, upon comparison, you decide that the plaintiffs negligence was slight and that the defendant's was gross,

then your verdict must be for the plaintiff. To compute the amount of that verdict you shall determine the amount of

the plaintiffs damage in accordance with Instruction No. _. You must then decide what percent of the total negligence

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NJI2d Civ.2.12ABurden of Proof—Greater Weight of the..., 1 Neb. Prac., NJI2d..

1 Neb. Prac., NJI2d Civ. 2.12A


Nebraska .Iiiry Instructions-Civil 2dNebraska Supreme Court Committee on Practice and Procedure

Chapter 2. Negligence: Statement of the Case; Aflirniative Defenses; Burdens of Proof: Res ipsa Lotpiitur; Presumptions; Numberand Nature of Parties

B. Burdens of Proof

NJI2d Civ. 2,12A Burden of Proof—Greater Weight of the Evidence Defined

Any party who has the burden of proving a claim must do so by the greater weight of the evidence.

The greater weight of the evidence means evidence sufficient to make a claim more likely true than not true. [It does notnecessarily mean a greater number of witnesses or exhibits.]

Any party is entitled to the benefit of any evidence tending to establish a claim, even though such evidence was introducedby another.

If the evidence upon a claim is evenly balanced, or if it weighs in favor of the other party, then the burden of proofhas not been met.

COMMENT

This instruction no longer refers to the burden of proof by "a preponderance" of the evidence. Instead, it refers to proofby "the greater weight" of the evidence. Preponderance is not in the common vocabulary of jurors; greater weight is.Greater weight is an exact synonym for preponderance, and much more understandable. This is not a substantive change.And, this use of the term "greater weight" is not new to Nebraska law: "The plaintiff has the burden to prove by thegreater weight of the evidence that the defendant...." Russell v. Bd. of Regents, 228 Neb. 518, 520, 423 N.W.2d 126,128 (1988).

This instruction assumes that the burden is the usual one applied in civil cases, the burden of proving a fact by the greater

weight of the evidence. E.g., Scoular-Bishop Grain Co. v, Bassett Grain, 218 Neb. 280,284,352 N.W.2d 904,907 (1984).Sometimes, however, the burden in civil cases is greater.

In some situations, the greater burden applies to decisions made by the trier of law, while proof by the greater weight

of the evidence is the burden applied to the decisions made by the trier of fact. For example, where the law requires

that a presumption must be overcome by "clear, unequivocal, and convincing" evidence as with the presumption that a

will, lost while in the possession of the testator, was revoked—the rule only applies to the judge's determination that the

evidence is sufficient to overcome the presumption. The jury is still to be instructed—continuing the lost will example—

that the burden of proving the lost will is on the proponent and that he or she must do so by the greater weight of the

evidence. First Nat'l Bank in Kearney v. Bunn, 195 Neb. 829, 831, 241 N.W.2d 127, 128 (1976); In re Estate of Drake,

150 Neb. 568, 35 N.W.2d 417 (1948). At least this seemed to the Committee to be the rule until In re Estate of Mecello,

262 Neb. 493, 633 N.W.2d 892 (2001). This point is discussed at NJI2d Civ. 16.01, Comment.

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NJI2d Civ.2.12BBurden of Proof—Clear and Convincing..., 1 Neb. Prac., NJI2d...

1 Neb. Prac., NJI2d Civ. 2.12B


Nebraska .hiry Instructions—Civil 2dNebraska Supreme Court Committee on Practice and Procedure

Chapter 2. Negligence: Statement of the Case; Affirmative Defenses; Burdens of Proof; Res ipsa Lotiuitiir; Presumptions; Numberand Nature of Parties

B. Burdens of Proof

NJI2d Civ. 2.12B Burden of Proof—Clear and Convincing Evidence Defined

[In this case, the plaintiff has the burden of proving (his. her, its) claims by clear and convincing evidence.]

[In this case, the plaintiffhas the burden ofproving (identify appropriate issue or issues) by clear and convincing evidence.]

[In this case, the plaintiff has the burden of proving the following claims by clear and convincing evidence: (here list theclaims to which this burden applies).]

Clear and convincing evidence means evidence that produces a firm belief or conviction about the fact to be proved.[Clear and convincing evidence means more than the greater weight of the evidence and less than proof beyond a reasonabledoubt. ]

COMMENT

Regarding burdens of proof in general, including a discussion of some cases where the burden of proof by clear andconvincing evidence, see NJI2d Civ. 2.12A and the Comment and Authorities thereto.

Care must be taken to see that this instruction is applied only to the appropriate issues. The pattern is drafted for thesituation where this burden is the plaintiffs; it must be modified if the burden is the defendant's.

The first three paragraphs (the three in brackets) are alternatives, the first is to be used where the plaintiff must proveall of his or her claims by clear and convincing evidence and the second or third is to be used where the plaintiff mustprove some, but not all, of his or her claims by clear and convincing evidence.

All or part of the bracketed material in the fourth paragraph is to be included, as appropriate, in a case where the jury isto be instructed on both the burden of the greater weight of the evidence and the burden of clear and convincing evidence.

Otherwise it is to be used at the judge's discretion, in cases where it will help the jury more clearly understand their task.

If the jury is to be instructed on the greater weight of the evidence, NJI2d Civ. 2.12A, and on clear and convincingevidence, NJI2d Civ. 2.12B, then NJI2d Civ. 2.12A will have to be modified to reflect the fact that it does not apply to

all of the claims the jury must decide.

For examples of facts the proof of which requires clear and convincing evidence, see NJI2d Civ. 2.12A, Comment.

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NJI2d Civ.3.02Definition of Negligence, 1 Neb. Prac., NJI2d Civ. 3.02


Nebraska Practice Scries TM October 201S Update

Nebraska .Jury Instructions—Civil 2dNebraska Supreme Court Committee on Praetice and Procedure

Chapter 3. Negli};ence—General Instructions

NJI2d Civ. 3.02 Definition of Negligence

Negligence is doing something that a reasonably careful person would not do under similar circumstances, or failing to

do something that a reasonably careful person would do under similar circumstances.

NJI2d Clv.3.44Proxlmate Cause—Conduct of Nonparty third..., 1 Neb. Prac., NJI2d.


Nebraska Practice Series TiM October 2018 Update

Nebraska .Iiirv Instructions—Civil 2d

Nebraska Siipreine Court Committee on Practice and Procedure

Chapter 3. Negligence—General Instructions

NJI2d Civ. 3.44 Proximate Cause—Conduct of Nonparty third Person

The defendant claims that (insert name of or phrase identifying nonparty third person fs conduct was the only proximatecause of the (occurrence, accident, collision, fall, et cetera). By doing so, the defendant is simply denying that (his, her,its) conduct was a proximate cause of the (occurrence, accident, collision, fall, et cetera). Remember, the plaintiff mustprove that the defendant's negligence was a proximate cause of the (occurrence, accident, collision, fall, et cetera).

COMMENT

The sort of claim described by this instruction is not an affirmative defense. It imposes no burden on the defendant. Andit is appropriate to make such a claim under a general denial.

Precedent approves such an instruction, but does not compel it. The cases state that in an appropriate case some wherein the instructions the jurors "should be advised" of the following: if they find that the sole proximate cause of theaccident was the negligence of someone other than the defendant, then their verdict should be for the defendant. It isordinarily sufficient, however, if the jurors are so advised through a proper statement-of-the-case instruction, includingproper instruction on the defendant's denials and the burden of proof. In other words, where the statement of the caseinstruction is proper, this instruction is not mandatory and failure to give this instruction is not prejudicial error. Thecases supporting these points are discussed in the Authorities, below.

"The comments to NJI2d Civ. 3.44 clarify that this instruction is appropriate when the defendant claims that 'the

negligence of someone other than the defendant' is the sole proximate cause of the plaintiffs damages."' The Committeebelieves that when the jury is otherwise properly instructed, this instruction is repetitive; it singles out and emphasizesone aspect of the plaintiffs burden and the defendant's general denial. Therefore, even in those cases in which the lawin this instruction applies the Committee discourages its routine use. "[I]f a third person is the sole proximate causeof an innocent plaintiffs injuries, the plaintiffs recovery from a defendant is barred because the plaintiffs injuries are

not attributable to the defendant's negligence." " In other words, in such a situation the defendant's negligence is not aproximate cause of the plaintiffs injuries. A proper statement of the case instruction, including proper instruction onthe defendant's denials and the burden of proof, should adequately instruct the jury on this point and this instruction—NJI2d Civ. 3.44—would be cumulative, would single out, and thereby emphasize, one aspect of the plaintiffs burden

and the defendant's general denial, and, therefore, is generally both unnecessary and unwise

In Worth v. Kolbeck, the Court stated the following:

In Barry v. Moore, this court held that a trial court must inform the jury of "the respective

legal rights and liabilities of the [parties] in the event that negligence of the defendant was

found which was the proximate cause which cause was proximately contributed to by [thethird person]." Specifically, the trial court must explain that "[i]f [the defendant] was guilty

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NJI2d Civ.4.00General Instruction on Damages In a Tort..., 1 Neb. Prac., NJI2d.



Nebraska Jury Instructions—Ci\il 2dNebraska Supreme Court Committee on Practice and Procedure

Chapter 4. Damages

B. Personal Injury

NJI2d Civ. 4.00 General Instruction on Damages in a Tort Action WhereJoint and Several Liability Is an Issue—Economic and Noneconomic Damages

In Instruction No. I spoke of economic and noneconomic damages.

ECONOMIC DAMAGES

I am about to give you a list of things you may consider in making your decision regarding economic damages. Fromthis list, you must only consider those things you decide were proximately caused by defendants' negligence.

1. The reasonable value of medical (, hospital, nursing, and similar) care and supplies reasonably needed by and actuallyprovided to the plaintiff (and reasonably certain to be needed and provided in the future)-,

2. The (wages, salary, profits, reasonable value of the working time, business) the plaintiff has lost because of (his,her) (inability, diminished ability) to work;

3. The reasonable value of the (earning capacity, business or employment opportunities) the plaintiff is reasonably certainto lose in the future;

4. Reasonable funeral costs;

5. The reasonable value of plaintiffs loss of the use of (his, her) property;

6. The reasonable value of the cost of repair or replacement (here describe the thing repaired or replaced)-,

7. The reasonable cost of obtaining substitute domestic services.

NONECONOMIC DAMAGES

I am about to give you a list of things you may consider in making your decision regarding noneconomic damages. Fromhis list, you must only consider those things you decide were proximately caused by defendants' negligence.

1. The reasonable monetary value of the physical pain and mental suffering (and emotional distress) the plaintiff hasexperienced (and is reasonably certain to experience in the future)-,

2. The reasonable monetary value of the inconvenience the plaintiff has experienced (and is reasonably certain toexperience in the future)-.

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NJI2d Civ.4.01 General instruction on Damages in a Tort..., 1 Neb. Prac., NJI2d...



Nebraska .Iiirv Instructions—Civil 2d

Nebraska Supreme Coui t Committee on Practice and Procedure

Chapter 4. Damages

B. Personal Injury

NJI2d Civ. 4.01 General Instruction on Damages in a Tort Action Where Joint and Several Liability Is Not an Issue

If you return a verdict for the plaintiff, then you must decide how much money will fairly compensate the plaintiff for(his. her) injury.

I am about to give you a list of the things you may consider in making this decision. From this list, you must only considerthose things you decide were proximately caused by defendant's negligence:

1. The nature and extent of the injury, including whether the injury is temporary or permanent (and whether any resultingdisability is partial or total) \

2. The reasonable value of the medical (, hospital, nursing, and similar) care and supplies reasonably needed by andactually provided to the plaintiff (and reasonably certain to be needed and provided in the future)\

3. The (wages, salary, profits, reasonable value of the working time) the plaintiff has lost because of (his. her) (inability,diminished ability) to work;

4. The reasonable value of the earning capacity the plaintiff is reasonably certain to lose in the future;

5. The physical pain and mental suffering the plaintiff has experienced (and is reasonably certain to experience in thefuture) \ and

6. The plaintiffs (husband's, wife's) loss of consortium. Consortium means those things to which a person is entitled byreason of the marriage relationship. It includes affection, love, companionship, comfort, assistance, services, moralsupport, and the enjoyment of (sexual, conjugal) relations.

[Remember, throughout your deliberations you must not engage in any speculation, guess, or conjecture and you mustnot award any damages by way of punishment or through sympathy.]

SPECIAL NOTE

For many causes of action that accrue on or after February 8,1992, Neb. Rev. Stat. §§ 25-21,185, et seq. (Reissue 2016)

changes Nebraska law regarding joint and several liability and divides damages into "economic" and "noneconomic."

The above instruction does not apply to actions of a type to which contributory negligence is an allowable defense, that

accrue on or after that date, and where joint and several liability is an issue. NJ12d Civ. 4.00 applies instead. Regarding

§§ 25-21,185, et seq. (Reissue 2008), see NJ12d Civ. 5.04, Comment. Consult that Comment for an explanation of when

the above instruction applies.

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PLACE LETTERHEAD HERE

(date)

Insurance Company's address

Re:

Our File No.

Your Claim No.

FOR SETTLEMENT PURPOSES ONLY

Dear Sir or Madam:

The contents of this letter are for setfieim!|n|^pprppse^^ and may not be admissible underNebraska Rules of Evidence or thelFed^allRulds of Eiiidence.

iL

Please be advised that our firm represents regarding claims that she/he haswhich arise out of the accident that occurred at , Nebraska,on or about , 20 . Our client, , sustained the following:

Medical Bills and Miscellaneous Expenses $(See Exhibit "A" - Medical Bills and Miscellaneous Expenses Summary)

is a ^-year-old woman/man whose date of birth is , 19Prior to the incident, 's health history was entirely unremarkable. She/Hehas no previous health or medical history that might, in any manner, contribute to the severeproblems that have developed as a result of this accident.

At the time of the incident, had a life expectancy of . years as shownby the 2013 Nebraska Department of Health and Human Services Life Expectancy Table,attached hereto. As you may know, the tables are included by the revisor of Statutes ofNebraska in the official tables approved by the Nebraska Legislature and published with thestatutes of this state. The tables do not have the force or effect of law, but are entitled tojudicial notice.

Prior to the incident, lived a very active lifestyle. She/He engaged in. Subsequent to the incident, she/he has had

constant pain and soreness in her/his . Day-to-day she/he is restricted fromIn addition, she/he has restrictions in

021I19///00147124

IN THE DISTRICT COURT OF COUNTY, NEBRASKA

V.

Plaintiff,

Defendant.

Case No.

COMPLAINT

(Law)

Plaintiff avers:

1. Plaintiff. Plaintiff is a resident of County,

Nebraska, who was, at all material times, operating a (yr, model, type of vehicle) ,

in color. Vehicle Identification Number . Plaintiffs spouse,

, was a passenger in the vehicle operated by Plaintiff, at all

material times, herein.

2. Defendant. Defendant,

a resident of

hereinafter " ', IS

County, Nebraska. Defendant

at all material times, was the owner of a (yr., model, type of vehicle) automobile,

license plate number and was operating the vehicle at all material times.

3. JurisdictionA^ enue. This Court has jurisdiction of the subj ect matter of this

action and of the parties pursuant to Neb. Rev. Stat. § 24-302, as amended, and other

provisions of law. Venue is proper in County, Nebraska, for the reason that the

automobile collision and injuries claimed herein occurred in County, Nebraska.

4. Scene and Time. On or about ,20 , at approximately

: .m.. Plaintiff was the driver of the automobile and Plaintiffs spouse was a passenger

of the vehicle operated by Plaintiff. The vehicle the Plaintiff was driving was Abound on

^(street or road) at approximately Street and . At the time of

021119///00188405

44-6412. Insurer; payment; rights of insurer; agreement to settle;..., NE ST § 44-6412


Chapter 44. Insurance

Article 64. Uninsured and Underinsured Motorist Insurance Coverage

Neb.Rev.St. § 44-6412

44-6412. Insurer; pajoiient; rights of insurer; agreement to settle; notice; subrogation

Currentness

(1) In the event of payment under the uninsured or underinsured motorist coverage, the insurer making such payment

shall, to the extent of such payment, be entitled to the proceeds of any settlement or judgment to the extent such settlement

or judgment exceeds the amount paid under any applicable bodily injury liability policy or bond.

(2) If a tentative agreement to settle for liability limits has been reached with the owner or operator of an underinsured

motor vehicle, written notice shall be given by certified or registered mail to the underinsured motorist coverage

insurer by its insured. Such notice shall include written documentation of lost wages, medical bills, and written

authorization to obtain reports from all employers and medical providers. Within thirty days of receipt of such notice,

the underinsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount.

The underinsured motorist coverage insurer shall then be subrogated to the insured's right of recovery to the extentof such payment and any settlement under the underinsured motorist coverage. If the underinsured motorist coverage

insurer fails to pay the insured the amount of the tentative settlement within thirty days of receipt of such notice, theunderinsured motorist coverage insurer shall have no right of subrogation for any amount paid under the underinsuredmotorist coverage.

(3) Whenever an insurer makes payment under uninsured or underinsured motorist coverage because of an insurerinsolvency, as described in section 44-2403, the paying insurer's right of recovery or reimbursement shall not include anyrights either against the insured of such insolvent insurer, except for the amount which is in excess of the limits of liabilityof the policy of the insolvent insurer, or against a guaranty account established pursuant to the Nebraska Property andLiability Insurance Guaranty Association Act.

Credits

Laws 1986, LB 573, § 11; Laws 1994, LB 1074, § 12.

Codiflcations: R.S. 1943, (1988), § 60-581.


Neb. Rev. St. § 44-6412, NE ST § 44-6412


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25-403.01. Actions; venue; transfer; payment of expenses, NE ST § 25-403.01


Chapter 25. Courts; Civil ProcedureArticle 4. Commencement of Actions; Venue

(a) General Provisions

Neb.Rev.St. § 25-403.01

25-403.01. Actions; venue; transfer; payment of expenses

Currentness

Any action, other than the actions mentioned in sections 25-401 to 25-403, may be brought (1) in the county where any

defendant resides, (2) in the county where the cause of action arose, (3) in the county where the transaction or some

part of the transaction occurred out of which the cause of action arose, or (4) if all defendants are nonresidents of this

state, in any county. When an action has been commenced in any other county, the court in which the action has been

commenced shall have jurisdiction over the action, but upon timely motion by a defendant, the court shall transfer the

action to the proper court in a county in which such action might have been properly commenced. The court in the

county to which the action is transferred, in its discretion, may order the plaintiff or the plaintiffs attorney to pay to the

defendant all reasonable expenses, including attorney's fees, incurred by the defendant because of the improper venue

or in proceedings to transfer the action.

Credits

Laws 1986, LB 529, § 23.


Neb. Rev. St. § 25-403.01, NE ST § 25-403.01


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Hon. James G. KubeDistrict Judge of the 7th Judicial District


A View from the Bench: How Logic and Common Sense

Can Lead to Success

NOTES

Continued

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Christin P. LovegroveHeinisch & Lovegrove Law Office, PC LLO


Now Your Aunt Wants a Will:Estate Planning Tips Every

Lawyer Should Know

Now Your Aunt Wants a WillEstate Planning Tips Every Lawyer Should Know

Christin P. Lovegrove, AttorneyHeinisch & Lovegrove Law Office, PC LLC

Nebraska Bar Association Young Lawyers SectionBest Practices Seminar

March 15, 2019

Christin P. Lovegrove, [email protected]. H LLawOffice.com

(402) 759-3122 ext 2

Christin P. Lovegrove is a partner at Heinisch & Lovegrove Law Office, PC LLC, inGeneva, Nebraska, and specializes in the areas of estate planning, family businessentities, real estate, probate, trust administration and agricultural issues. She receivedher Juris Doctor from the University of Nebraska College of Law and a Bachelors ofScience in Finance and minors in Economics and Chicane Studies from the Universityof Nebraska-Lincoln.

Nebraska State Bar Association

• Real Estate, Probate & Trust Section, past chair and current co-chair• Young Lawyers Section, executive committee, past treasurer and current

secretaryAgricultural Law Section, Past PresidentMembership Committee, past memberLeadership Academy Class of 2013

Youna Leaders of Fillmore CountyFounding Member and Past PresidentTop 4 Under 40 Award Recipient 2011

Fillmore Countv Hospital Foundation• Board of Directors

• Gala Auction Chair

Trivia Night Chair

Fillmore Central School Board

Secretary

Geneva Parks & Recreation Department Governing Board

Leadership Nebraska - Class VIII

Geneva Aquatic Center Planning Committee

ODEGEO Leadership - 2010-2011 Class

Prepared on February 11. 2019 (2:31 pm) by Heinisch & Lovegrove Law Oflice PC LLO PO Box 311. Geneva, NE 68361 402-7S9-3122, Fax 886.844.4381O:\Seminar12019 Young LawyersXCPL Now Your Aunt Wants a Will.wrpd EI#37-165820S www.HLLawOfnce.com Email: [email protected]


Christln P. LovegroveHeinisch & Lovegrove Law Office, PC LLC

Initial Client Contact & Meeting. There are a number of things that can be doneto make sure that your initial meeting with the client is productive and an efficientuse of time.

A. Pre-meeting1. We require name, home address, phone number and email at the

time the appointment is set.2. Give the client something to do and think about prior to the

meeting. Many clients do not understand the estate planningprocess or the people involved. Many want to bring a detailedasset list but have not thought about the fiduciaries or the peoplethat are involved and often are the most difficult decisions.

a. Intro Email to Client - See Appendix #1b. Client Intake Form - See Appendix #2

B. Evaluate your (attorney) experience and knowledge for this client1. Pre-Meeting

a. Search public records for information (assessor websites,Justice)

b. Google their name - do they have a business website? ALinked In or public Facebook profile? Find out a little bitabout this client before you meet with them. They likelygoogled/researched you - do the same.

c. Check office files for ties and/or conflicts. We use Copernicas a search engine on our server. Are they a beneficiary inanother client's estate plan? A shareholder or key employeein a business? What work has your office done for them thatwould be important to recognize in an estate plan?

2. Evaluation of Abilitya. During the pre-meeting research and during the initial

meeting make sure that you are honestly reviewing yourskills and experience to determine your ability to do aneffective job.

b. Questions to consider;

(1) Are you impressed by the size of their estate? Howmuch larger is this estate than others you haveworked with?

(2) How diverse is the asset base?(3) Do you know what types of assets you are dealing

with? Do you understand the regulations and taxconsequences surrounding these assets?

C. Estate Planning Brochure - See Appendix #3D. Estate Planning Terms Brochure - See Appendix #4E. Power of Attorney Brochure - See Appendix #5

Issues & Concerns

A. Tax V. non-tax reasons for estate planning1. Most people engage in estate planning for both rational and

emotional motivations. Commonly, individuals wish to provide forloved ones after death and ensure that their property is distributedin a timely manner. For many, the minimization of expenses andtaxes is an important goal. However, estate planning is oftenguided by emotional motivations. It gives a sense of comfort andsecurity knowing that loved ones will be provided for and that stressfor those loved ones will be minimized because of pre-planning.Also, individuals feel a sense of peace when they know that theirproperty will be distributed as desired.

2. Clients will often claim one reason, but often there are underlyingconcerns and motivations for estate planning at that point in time.It is important that as the attorney, you can work to identify thesemotivating factors as those will be key components in drafting anestate plan tailored to that client's specific needs.

B. Client Sophistication1. Is the client familiar with the estate planning process? Do they

understand the terms and options available? The less familiar theclient is, the more time and effort that should be put into placeexplaining the nuances of each option. Are they easilyoverwhelmed? Does the client want input, or simply want theattorney to make the decisions? Estate planning should beaffirmative decisions by the client - with a clear understanding ofhow each option meets, or falls short of, their ultimate objective.

2. Do they understand the plan and the objectives? Do they know howto put the plan into place? Will they follow up with the re-titling ofassets or the changing of beneficiary designations? Will theycontinue to look to the plan and it's direction as their assets, andsituations, change?

C. Probate v Non probate assets1. For an in-depth analysis and explanation, see materials by Christin

P. Lovegrove - "Multiple Party Accounts & Non-Probate Transfers",presented at the March 24, 2017, NSBA REPT Section's 2017Annual Estate Planning & Probate Institute.

Now Your Aunt Wants a Will Christin P. Lovegrove, AttorneyYLS Best Practices Seminar - March 15, 2019 Page 2

Formulating a Plan for the ClientA. Determine what is appropriate for the client with a recognition that this will

likely change as the client's assets change and the client's life situationchanges.

B. Estate Planning or Income Tax Planning?1. Background

a. Historically, a married couple needed to use a non-marital,or credit shelter, trust to take advantage of the applicableexclusion at the death of the first-to-die spouse as anyunused estate tax exemption was lost. This type of planningoften involved the retitling of marital assets to ensure thateach spouse had separate assets to "use up" their entireexclusion.

b. The Tax Relief, Unemployment Insurance Reauthorization,and Job Creation Act of 2010 (the "Tax Relief Act of 2010")introduced an alternative to the traditional credit shelter

planning ~ the ability of the first-to-die spouse to transfer hisor her unused exclusion amount to the surviving spouse.The exclusion became portable; thus "portability" wascreated. Now, a surviving spouse is able to use the unusedestate tax exemption of a predeceased spouse so thehusband and wife "unit" can take advantage of the full estatetax exclusion amount of each individual.

c. In 2012, Congress enacted the American Taxpayer ReliefAct of 2012 which, among other things, made the portabilitylaws and estate tax exemption levels and inflation indexingpermanent.

d. In December 2017, the Tax Cuts and Job Acts temporarilydoubles the exemption amount for estate, gift andgeneration-skipping taxes from the $5 million base, set in2011, to a new $10 million base, good for tax years 2018through 2025, indexed for inflation.(1) NOTE: The law's sunset means that, absent further

Congressional action, the exemption amount wouldrevert to the $5 million base, indexed, in 2026.

(2) 2019 Estate Tax Exemption Amount is $11.4 million2. With the current levels of the federal estate tax exemption, many of

our clients benefit more from estate planning with an emphasis inincome tax planning.a. Currently more than 99.9% of deceased estates are NOT

subject to estate tax.(1) Approximate 2017 filings: 11,300 filed; 5,500 taxable(2) Approximate 2018 filings: 4,000 filed; 1,900 taxable

Now Your Aunt Wants a Will Chrlstin P. Lovegrove, AttorneyYLS Best Practices Seminar - March 15,2019 Page 3

3. Step Up in Basis & Depreciationa. Often ignored is the opportunity to depreciate the stepped-

up value of assets in an estate under I.R.C. 1014 that aredepreciable income producing assets such as a pivotirrigation system, fencing, barn, and farming equipment. Thehole in the ground for a well is a non-depreciableimprovement to real estate, but the column, pump,gearhead, generator and motor as well as the pivot aredepreciable against the date of death value. Often overlooked is the identification of value on the decedent's

inventory. In order to depreciate such business items theymust be identified and valued. The beneficiary will followMACRS depreciation; no section 179 depreciation isavailable. An inherited item not on the inventory has a zerobasis for both depreciation and sale. The bad news is thepersonal property tax return is based on a taxpayer'sdepreciation schedule and the items with new basis will betaxed as new. An interesting article on deprecation ofstepped up basis is "Uniform Basis; Who Can ClaimDepreciation After Death and how Much?" Volume 25, No.24, December 12, 2014 in Agricultural Law Digest.

Portability1. High exemption amount plus portability means that you need to

understand the DSUE rules

2. The Basics of Portabilitya. Portability is available to any decedent, regardless of the

size of the estate or the decedent's reason for leaving anunused exclusion amount.

b. The Tax Relief Act of 2010 introduced the concept of"deceased spousal unused exclusion amount" ("DSUE").DSUE is an estate tax credit equal to the amount of theapplicable estate tax exemption that is unused by the first-to-die spouse.

c. The DSUE is available to the surviving spouse in addition tothe surviving spouse's own basic exclusion amount.

d. The apolicable exclusion amount for the surviving spouse isthe sum of the surviving spouse's basic exclusion amountand the DSUE.

e. The DSUE can be used by the surviving spouse for both giftand estate tax purposes. Portability, however, does notapply to the generation-skipping transfer tax ("GST")exemption.


Note the new definitions used above:

a. Basic Exclusion Amount ("BEA")(1) previously called the applicable exclusion(2) $5 Million in 2011 (then doubled in 2018) thence

adjusted for inflation (currently $11.4 million in 2019)b. Applicable Exclusion Amount

(1) BEA plus the DSUE(2) The BEA will adjust for inflation, the DSUE will remain

constant

The Portability Election Procedurea. The DSUE is not automatically transferred to the surviving

spouse at a decedent's death. The executor of the estate ofthe first-to-die spouse must file a Form 706 for the deceasedspouse's estate and elect to make that spouse's unusedexclusion portable. 26 USC §2010(c)(5).

b. The executor or administrator of the estate of the first-to-die

spouse must file a timely, complete and properly preparedForm 706 and elect portability, even if a return is nototherwise required.(1) Estates that are under the exemption amount can

seek a ruling from the IRS for an extension to electportability and the IRS has been "rubber stamping"these requests. However, the IRS's basic fee for thisis $9,800.

c. To irrevocably elect not to allow a surviving spouse to useDSUE amount, there are four options:(1) Not filing a 706 if it is not otherwise required(2) Attaching a statement to the 706 indicating that the

estate is not making the election(3) Entering "No Election Under Section 2010(c)(5)"

across the top of page 1 of the 706(4) Checking the box on Part 6, Schedule A of the Form

706

Malpractice Issuesa. Failure to Make Election

b. Statute of Limitations

c. Valuation on the 706

d. Past Documentation

e. Addressing Cost BurdenWaiver Form and Acknowledgment - See Appendix #6a. Avoid malpractice: file a 706 or get a waiver from your client


D. How Portability Impacts the Estate Plan1. Lifetime gifting & the DSUE

a. Lifetime gifting should be done as soon as practicable afterthe DSUE determination

(1) Doing so ensures that the DSUE amount derived froma first deceased spouse will not be lost if the survivingspouse is widowed again.

b. Those preparing gift tax returns should keep in mind theordering rules with DSUE.(1) Advisable to attach a schedule to any gift tax return

listing the source of all prior DSUE amounts andprovide records that are available.

2. Relying on Portability [Joint Trusts or Disclaimer Trusts] v. Using aCredit Shelter Trust

a. What should be considered in determining the type of estateplan to use for clients?(1) cost(2) benefit(3) size of the estate(4) size of anticipated unused exemptions(5) age(s) of the client(s)(6) necessity of asset protection(7) marital status (including number of marriages and

length)(8) growth and growth potential for assets(9) desire for generational planning(10) state estate tax concerns

b. Factors Favoring Credit Shelter Planning(1) DSUE amount is not indexed for inflation(2) The credit shelter trust remains exempt from estate

tax regardless of how much the assets in the creditshelter trust may appreciate in value or how muchincome is generated by those assets(a) Relying on the DSUE amount does not guard

against estate tax on the appreciation of theassets received by the surviving spouse.

(3) An outright transfer of assets to the surviving spouseutilizing portability does not provide the myriad of nontax benefits associated with trusts, such as(a) asset protection from the claims of creditors,(b) spendthrift protection(c) a new spouse of the surviving spouse and

protection against the diversion of assets fromthe first spouse's family to a new family createdon remarriage of the surviving spouse, and

(d) investment management(4) GST exemption is not portable.

Now Your Aunt Wants a Will Christin P. Lovegrove, AttorneyYLS Best Practices Seminar - March 15,2019 Page 6

c. Factors Favoring Portability Planning & Reliance(1) The main advantage of portability is simplicity. It

allows a married couple to create a simple estate planor avoid estate planning altogether by leaving allproperty to the surviving spouse while still preservingthe deceased spouse's applicable exclusion amount.

(2) Portability provides a back-up to a planned use of theapplicable exclusion amount (situations where acouple fails to fully implement asset retitling), or thesize or nature of the assets mitigates against the fulluse of the applicable exclusion amount at the firstdeath. The portability election can save applicableexclusion that would othenA/ise be lost.

(3) Joint estates that will likely decline in value.(4) Step up in basis in the assets after the surviving

spouse's death.(5) Portability is also an effective planning technique for

assets that are likely to depreciate in value or assets,like retirement accounts, that are not well suited fortrust ownership.

(6) Tax-deferral for qualified plans (allows for the slowestpossible payout on many retirement plans by namingthe spouse as beneficiary instead of a trust).

(7) Surviving spouse is able to make lifetime gifts usingboth exemption amounts.

E. The Use of Trusts

1. Factors to consider

a. Long term control v. nearly immediate distribution after deathb. Avoidance of probate process

(1) practitioner's note: Is it really more cost effective?c. Level of assets

d. Need for privacye. Age of clientsf. Age of beneficiariesg. Needs of beneficiaries (special needs, income generation,

support)h. Same v. different beneficiaries between spousesi. Blended families

j. Charitable designationsk. Savvy clientsI. FSA Issues

2. The use of trusts (especially following the death of the grantor)requires close attention be paid to the timing of income recognition,the payment of expenses, and distributions. For example, it is keyto pay expenses in the year that income is generated in the trust.Distributions of income can be made under the 65 day rule tobeneficiaries after the close of the fiscal year (but note thatexpenses cannot translate back).


F. Durable Power of Attorney - See Appendix #7G. Health Care Power of Attorney - See Appendix #8H. Power of Attorney Information Form - See Appendix #9I. Estate Tax Issues

1. Inheritance Tax - This is a Nebraska tax payable to the countiesbased on the property transferred at death. This tax is owed basedon the degree of relationship as well as exemption amounts. Veryfew assets are exempt from inheritance tax in Nebraska.

2. Federal Estate Tax - Federal estate tax is a tax imposed on thetransfer of a taxable estate of a deceased person (decedent).

3. Income Tax - Income Taxes are generally imposed by states andthe federal government and are based upon the income of thetaxpayer, less any applicable or allowable deductions. Estates canbe, and often are, "taxpayers" for purposes of income tax.

J. Medicaid Planning and Eligibility1. LB 593

a. LB 72 (2015) and LB 268 (2016) created issues far and widedealing with Medical Assistance Reimbursement, a DM MSwaiver process to permit distribution trusts, and a lien that isnot being enforced but creates a potential cloud on realestate titles. On January 23, 2019, LB 593 was introducedfor the partial repeal of LB 72 and LB 268.

b. January 25, 2019 Frank 0. Heinisch email of explanation-see Appendix #10

0. LB 593 as introduced - see Appendix #112. Medicaid Resources and Spend Down

a. In Nebraska Medicaid applicants for long term care areallowed a maximum of $4,000 resources in excess ofexempt resources such as one car, $4,978 burial trust (pluslot, grave stone, casket & vault, grave opening), pay themortgage, repair the home and private pay nursing homecare. Couples that both require Medicaid for long term careare allowed $6,000 in resources. If they are over thisamount, they must spend down on care.

b. If one spouse requires care, and one that does not, thespouse that does not receive care is referred to as theCommunity Spouse. Spousal impoverishment deals withspending down to qualify the spouse for Medicaid and allowthe Community Spouse to retain limited resources

c. To qualify for Medicaid in Nebraska there is only an assettest, no income test for the Medicaid recipient. If they aremarried, the maximum amount of income the Medicaid officeallows a community spouse to keep in Nebraska is $3,022and the minimum amount is $2,003. All of the Medicaidrecipient's income must go towards their cost of care, asidefrom $60 which is for a personal needs allowance.


d. A Miller Trust or an Income Trust is not allowed in Nebraska.

Only states that have an income test may use a Miller Trustto qualify for Medicaid, Currently, the states with income testprovisions are Alabama, Alaska, Arizona, Arkansas,Colorado, Delaware, Florida, Georgia, Idaho, Iowa,Kentucky, Louisiana, Mississippi, Nevada, New Mexico, NewJersey, Oklahoma, Oregon, South Carolina, South Dakota,Tennessee, Texas, and Wyoming.

e. If a gift of any amount is given in Nebraska during a 60month look back term prior to making application forMedicaid, a penalty period will extend the starting date forMedicaid benefits. The penalty is calculated by taking thetotal amount of any gifts given, and dividing it by an averagemonthly care cost, ($6,403) which creates the number ofmonths before Medicaid is available. There can be a real

problem if the resources are down to $4,000 yet the time toqualify for Medicaid benefits is extended.

3. Trusts as Disqualifying Medicaid Resources. The following areNebraska cases dealing with trusts counted as disqualifyingMedicaid resources.

a. If the Medicaid applicant contributes to trust (self funded)and the trust is irrevocable, if there are any circumstance ofbenefit to the applicant or spouse, all the trust corpus is adisqualifying Medicaid resource, no matter that it is adiscretionary trust. If the trust is self-funded and irrevocablewith no benefit to the applicant or spouse, it still is a transfer[gift] subject to the 60 month look-back rule.

b. A revocable trust is a disqualifying Medicaid resourceregardless of source of funding.

c. A discretionary third-party trust funded by third party assets(i.e. parent for child) is not a disqualifying medicaid resourcefor the Medicaid applicant.

d. A support third-party trust funded by third party assets is aMedicaid resource to the extent of the maximum amount ofsupport available.

e. A discretionary support trust is a disqualifying Medicaidresource to the extent of the maximum amount of supportavailable. [Trustee has discretion to pay support,maintenance, health and education.]

f. Bettv L. Thorson v. NDHHS. 274 Neb. 322 (2007). Goodhistory of Medicaid trust resource rules. A 1989 irrevocableself-funded trust giving independent trustee discretion tosupplement government programs benefits. Case decidedthat trust was a Medicaid resource because the "anydiscretion to distribute assets [to Medicaid applicant] issufficient."


g. Hazel I. Wilson v. NDHHS. 272 Neb. 131 (2006). Goodhistorical review of Medicaid trust resource, especially timeline of look back limitations. Holding the transfer from thirdparty trusts to widow to children were not subject to Medicaidresource disqualification if the transfer is beyond the lookback term. Transfers from third party trust outside look backperiod are not a Medicaid disqualifying resource.

h. Ruth Pohlmann v. NDHHS. 271 Neb. 272 (2006).Testamentary Trust from Husband 1982 Marital Trust - allnet income - power of appointment in wife for principal(never funded). Family Discretionary Trust - all net incomeand discretionary principal distributions. Funded in 2002.Any circumstance test only relates to self settled trust, nottestamentary trust. Failure to elect against will creating atransfer was not before court.

i. Ronald D. Boruch v. NDHHS. 11 Neb. App. 713 (2003).November 6,1993 irrevocable trust - use and possession ofreal estate and annual income for life. History of Medicaidtrust resources was reviewed. If one creates an irrevocable

trust after June 9,1993 with own funds and is a trustbeneficiary or can benefit under any circumstances the trustcorpus is counted in the determination of Medicaid eligibility.Any circumstance test trumps need to use look back period.

J. Iris A. Doksanskv v. NonA^est Bank Nebraska. N.A. 260 Neb.100 (2000). Discretionary Support Trust - attempt to garnishtrust to pay son's child support. Held child support due byson was not part of the support to be provided to sontherefore not a Medicaid resource. Look to support mandatein trust to determine if the discretionary trust is a supporttrust.

k. Same trust: Iris A. Smith v. Richard D. Smith. 246 Neb. 193

(1994), "We find that In re Will of Sullivan. 144 Neb. 36,12N.W.2d 148 (1943) does not stand for the proposition that inall cases the dependents of a beneficiary of a discretionarysupport trust can compel a trustee to make payments fortheir benefit. We interpret the case to mean that the trusteeof a discretionary support trust can be compelled to carry outthe purposes of the trust in good faith."

I. William Hoeslv v. State of Nebraska. Department of Social

Services. 243 Neb. 304 (1993). Renunciation of a bequestwith intention to continue to qualify for Medicaid is adisqualifying resource.

m. Failure of a spouse to elect against a will is a disqualifyingMedicaid resource. NEBRASKA DEPARTMENT OF

HEALTH AND HUMAN SERVICES Manual Letter #2-2014

Rev. January 1, 2014, 21-001.01 example 27.

Now Your Aunt Wants a Will Christin P. Lovegrove, AttorneyYLS Best Practices Seminar - March 15,2019 Page 10

n. NEBRASKA DEPARTMENT OF HEALTH AND HUMAN

SERVICES Manual Letter #62-2014 Rev. July 8, 2014,0. Also see Discretionary Trusts, Support Trusts, Discretionary

Support Trusts, Spendthrift Trust and Special Needs Trustunder the Nebraska Uniform Trust Code, Nebraska LawReview, Volume 86, Number 2 page 231 2007 (useCasemaker).

p. Nebraska considers a Miller Trust or Income Trust as adisqualifying resource with the State receiving Medicaidreimbursement from the trust upon the death of the Medicaidbeneficiary. Twenty two states such as Iowa, Colorado andWyoming allow such trusts. The determining factor is howthe State makes Medicaid assistance available.

(1) http://assets.aarp.org/rgcenter/ppi/ltc/i44-access-ltss_revised.pdf.

IV. Three Aspects of a Good PlanA. The Clients Understand It. An estate plan is instructions to family

members, friends, business associates, and creditors about how yourclient wants their affairs settled, who should receive and manage theassets, and what they consider to be important. If they don't understand it,and can't explain it to their family and other advisors, how will the peoplewho are supposed to put these documents into play after your clients'deaths do that? Lawyers can't help it - documents will likely always includea couple of Latin phrases and a few obscure statutory citations andreferences. Key components of understanding:1. Well organized2. Written in plain English3. Easy to follow by any adult with average reading ability

B. Personalized for the Client. Each client plan should be based on theirspecific needs. Avoid the regenerated template. Do not be an estateplanning professional that minimizes the amount of personalization theydo for each client.

1. Is a living trust necessary or not? Does a living trust address estateplanning concerns better than a will would?

2. Were the personal representatives, guardians, trustees and agentschosen because they are well qualified to carry out their duties orbecause they were the first names the client provided?

C. Coordinated. Each client should understand the steps they need to takeafter leaving your office with a new estate plan. Do beneficiarydesignations need to be reviewed or updated? Who is going to handlethat? Do your clients understand that certain non-probate designationscan undermine the goals and objectives of their estate plan? Deliberateplanning and consistency are key for the estate plan that was developedto actually work for that client.


APPENDIX


Christin P. Lovegrove, AttorneyHeinisch & Lovegrove Law Office, PC LLC

Nebraska Bar Association Young Lawyers SectionBest Practices Seminar

March 15, 2019

Heinisch & Lovegrove Law Office, PC LLCClient Information Update

Date:

File #:

Please Drovide the followinQ information. All information Is confidential, for in-house use only.

Is this a new matter? □YES gNOIf a new matter, please provide a brief description of the issue(s):

□ Estate Planning □ Tax Planning □ Business Counsel□ Real Estate: Lease/Purchase/Sale

□Other:

CLIENT INFORMATION: SPOlJSE INFORMATION:

Full Name; Full Name:

Date of Birth: Date of Birth:

Social Security #: Social Security #:

Employer: Employer:

Cell Telephone #: Cell Telephone #:

Email Address; Email Address:

Home Address:

Home Telephone #:

If Estate Planning, provide thefull names, including middlename, dates of birth andcurrent address and phonenumberof all children. If youneed additional room, pleaseask the receptionist foradditional sheets of paper.

Thank youl

Consent to the Representation and the Terms of the EngagementI acknowledge that I have read this document concerning the various aspects of my legal representation byHeinisch & Lovegrove Law Office, PC LLO. By signing this Consent, I am entering into an agreement to haveHeinisch & Lovegrove Law Office, PC LLO provide legal services in connection with the matter according tothe terms and conditions herein.

Note: This agreement requires binding arbitration if a dispute arises between you and Heinisch & LovegroveLaw Office, PC LLO. You should only sign this document if you agree to submit any and all such disputesarising from this engagement to arbitration.

□Client Signature

Please check this box if you prefer your statement to be emailed to you instead of mailed.

THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

on back side of THIS document*****************'

EXHIBIT

1

Thank you for your confidence In selecting Heinisch & Lovegrove Law Office, PCLLC to perform legal services in connection with the matter described on theprevious page. This is an Agreement which sets forth the terms of Heinisch &Lovegrove Law Office, PC LLCs proposed engagement to you as our client. Yoursignature on the bottom of this page serves as authorization for us to proceed.

Scope of the Engagement

Our services will include representation of you as our client, limited tothe matter described on the previous page.

Not included within the scope of Heinisch & Lovegrove Law Office, PCLLCs representation are appeals from any judgments or orders of the court.Appeals are subject to separate discussion and negotiation between Heinisch &Lovegrove Law Office, PC LLO and our client.

Also not included in the scope of this agreement are services you mayrequest of Heinisch & Lovegrove Law Office, PC LLO in connection with any othermatter, action, or proceeding. If there are other legal services that you wish us toperform for you, we should first consult together and supplement this letteragreement in writing before commencing those tasks.

Fees and Billing

Generally, the fee for any necessary services will be based on Heinisch& Lovegrove Law Office, PC LLC's established hourly rates for professionalservices. Although a Heinisch & Lovegrove Law Office, PC LLO attorney will beprimarily responsible for this engagement, various portions of the work may bedelegated to staff. FrankC. Heinisch's billing rate Is IBBH^per hour. ChristinP.Lovegrove's billing rate is 9HBV per hour. Patrick E. Sullivan billing rate isjidPtperho^. Heinisch & Lovegrove Law Office, PC LLO staff members arebilled atfHlVper hour.

We adjust our hourly rates periodically. We consider the ability,experience, and reputation of our lawyers and staff when we set hourly rates.Changes are usually made each January 1, but sometimes they are made at othertimes. Any increase in rates will apply to all time beginning with the month when therates are changed. Work done before that month will be billed at the hourly ratethat was previously in effect.

The time for which we are to be paid includes not only normal officeconferences, research, analysis, court appearances and advice associated with thematter described on the previous pane but also the time involved in telephonecalls, faxes, e-mail, and other forms of communication.

In addition to our legal fees, as described above, our client will becharged for out-of-pocket expenses and intemal fees which we pay on your behalf.Such expenses will be billed separately as they accumulate.

Out-of-pocket expenses include items such as court costs, filing fees,recording fees, certified copies, and travel expenses, lodging, mileage at thecurrently approved IRS rate, third-party conference calls, third-party documentproduction expenses, expert witness fees, court reporter fees, and transcriptionfees. Our client will also be expected to reimburse Heinisch & Lovegrove LawOffice, PC LLO for ali advances made to third parties on your behalf.

Our intemal costs include postage, shipping, certified or priority mailings,photocopying, long-distance telephone calls, faxes sent or received, and computerresearch charges.

We will send itemized statements of fees and expenses on a monthlybasis which our client will be expected to pay monthly. We will process billingstatements on a monthly basis. Billing statements are due and payable uponreceipt. Interest at the rate of 16% per annum will be due and payable with respectto any account more than thirty (30) days past due.

Termination of the Engagement

When the matter described on the previous page has been completed,our representation will be concluded unless arrangements for a continuingrepresentation are made. We will be happy to provide additional or continuingservices, but unless such arrangements are made and agreed upon in writing, wewill have no further responsibility to you in connection with any future or ongoinglegal issues affecting the matter described on the previous page including any dutyto notify you of changes in the laws or the necessity to make any periodic orrenewal filings or registrations.

Our client may terminate this engagement at any time by notice inwriting to us. Upon receipt of such notice, subject to such court approval as maybe necessary in the context of the situation, we will promptly cease providing anyservice to you. You will be responsible for paying for our services rendered up tothe time we receive such notice and for such reasonable services that we providethereafter in connection with the transfer of responsibility for the matters we arehandling at that time to your new counsel.

Heinisch & Lovegrove Law Office, PC LLO reserves the right toterminate our representation if our billings are not timely paid or for any otherreason upon reasonable notice in writing to our client. We may terminate thisengagement by giving our client written notice.

In the event of a termination by either party, Heinisch & Lovegrove Law Office,PC LLO will be entitled to be paid our hourly rates for all services performed hereunderprior to the date of termination and be reimbursed for all expenses paid by Heinisch &Lovegrove Law Office, PC LLO prior to such date. Any balance due on the account willbe paid immediately, and Heinisch & Lovegrove Law Office, PC LLO may apply anyamounts remaining in the escrow account to the outstanding balance owed.

By signing this agreement, you agree to give Heinisch & Lovegrove LawOffice, PC LLO a lien on the claims or causes of action set forth herein and on the fundsor other types of compensation realized by settlement or recovered by judgment, assecurity for the payment of said fees and such expenses as performed or advanced byHeinisch & Lovegrove Law Office, PC LLO.

Retention. Delivery. Retrieval, and Destruction of the Flies

You should understand the file that will be created by Heinisch & LovegroveLaw Office, PC LLO in connection with this matter will belong to our client. During thecourse of this engagement, you will be furnished copies of all documents and of allsignificant correspondence.

When this matter is completed, we may retain originals of documents andphysical and/or electronic copies of documents, correspondence, and, to the extent wedeem appropriate, notes made in connection with this engagement in our file.

Our client may direct us to release the file to the client or to anyone else thatthe client designates in writing, at any time, in such case, we will retain in our possessionall Internal communications and notes prepared by Heinisch & Lovegrove Law Office, PCLLO attorneys and staff. At the expense of the client, we will make, retain, and storephysical and/or electronic copies of all matters in our file which will be delivered to ourclient or at his or her request.

it is agreed that, in the event that this contract is terminated for any reason,you will not receive the ciient file without payment in fuil of attorneys' fees computed tothe date of termination of iegai representation at the rates provided herein. This fee shallinclude the reasonable cost of staff to copy the client file.

Heinisch & Lovegrove Law Office, PC LLO will maintain our files in this matterfor a period of ten (10) years foliowing payment in fuli for iegal services and/or writtennotice that the matter is closed. After ten (10) years the file may be destroyed byHeinisch & Lovegrove Law Office, PC LLO without further notice to our client. If anyoriginal documents are delivered to us during our representation, if requested, we willreturn them to our client at the time we close the file.

Consent to the Terms of the Engagement

Before we begin, you must consider all of the factors discussed herein andconsent to the form of the representation. After you have considered this decisioncarefully, we ask that you please sign the statement that follows to indicate your consentto the conditions of the representation. If, after considering this matter, you prefer adifferent form of representation, please let us know.

Because any change in legal representation after we begin will result in anIncrease in the time and expense needed to complete the matter at hand, for which youwould be financially responsible, we urge you to give careful consideration to thestructure of the representation before we begin.

Arbitration

In the event of a dispute between us regarding fees, costs or any other aspectof our attorney-client relationship or our representation in this matter, (including all claimsof professional negligence, tort, or contract), both parties agree the dispute will beresolved by binding arbitration in the State of Nebraska under the Federal Arbitration Actor under the Nebraska's Uniform Arbitration Act, whichever may so appiy, applying thecommercial arbitration rules. By agreeing to binding arbitration of any such disputes, youunderstand and agree you are waiving your right to a jury trial in court with regard to aresolution of such disputes should they occur.

Amendment of Agreement

This agreement supersedes any and all prior oral or written agreements andunderstandings between you and Heinisch & Lovegrove Law Office, PC LLO. Thisagreement can be amended only in writing, signed by you and an attorney of Heinisch& Lovegrove Law Office, PC LLO and this agreement contains all of the terms of ourengagement. This Agreement Is governed by the laws of the State of Nebraska.

Prepared on February 11, 2019 (2:16pm) by Heinisch & Lovegrove Law Offlcc PC LLO PC Box 311.Geneva, NE 6B361 402-759-3122, Fax 888.844.4381

O:\Client Intake Forms\HLLO EliieW'jmM^QSTtiywipdHLLavvGffice.com Email: [email protected]|

Subject: Estate Planning

Client -

This is an outline of what you need to consider and think about as you start the estate planning process. Below are the

"people'" that are involved. I tried to break it down, but if you want more clarification just ask. Typically, I would suggest

that you come up with the people who you think would fit these roles for you simply based on my descriptions. When

we meet and discuss, we can talk about specific "what ifs" and get into more detail. Usually I find that people have afairly good idea of who they want to be involved and we can make it work. It is usually easiest to print this email and fill

in the blanks, then bring it to our meeting. We also recommend you bring a basic outline of your assets and theirapproximate worth.

You & Spouse Full Names:

Children's Name & birthdate:Address:

Email for both/either - as long as they are used:_Phone number (both, usually cells):

Personal Representative & Successor Personal Representative:

The Personal Representative is someone that will administer your estate. Usually, the PR is your spouse and then youjust must choose a successor if your spouse is unable. The PR must be of legal age, and can be whomever you wouldfeel comfortable serving in that role, such as a parent, sibling, or famiiy friend. This person would gather all of yourassets and make sure that they went into the trust for the children.

Guardian & Conservator for Children:City/State they currently live In:This is the person who would actually take care of the kids, make decisions like where they go to school, medical

treatment, etc., and step in as a parent if you BOTH were gone. The guardian is the individual that has physical custodyand generally cares for the child while the conservator manages the child's assets {if it comes down to that or thetrustee cannot). One person typically serves both roles. We also encourage you to discuss your decision with theindividuai(s) that you have appointed so that they can be prepared to fiii such role. It is also appropriate to consider a"back up" plan in case the first individuai(s) that you have selected are not able to serve in this capacity in thefuture. Further, please let me know if there is an individual that you do not wish to serve in this role.

Alternate Guardian for Children:This person would serve if your first choice (after the two of you) was unable or unwilling."Not an Option" to serve as Guardian for Children:This person should not be considered as an option. Note: about half of my clients utilize this in their estate plan.

Trustees of Family Trust (1 or 2):If one of you would pass away, we typically provide that the other spouse would get all of the assets (note: if you have aprenuptial or famiiy assets like farm ground that would come from a specific "side" of the family that we need toaddress please let me know as that is handled differently). If you both would pass away, all of the assets would be putinto what we call a family trust. We usually do this because we don't want little kids or teenagers to have control of abunch of assets, it also helps them qualify for different benefits and scholarships. The trustee(s) would manage yourassets after the probate (estate) was closed. They would, in essence, decide when and how much money to give to kidsfor expenses, decide on rental of land or sale of assets, make the "big decisions" for the kids in regards to finances. Thisindividual must be of legal age, and someone that you think would be fair, trustworthy, and would upj

EXHIBIT

desires. Often this person is another family member with experience in this type of area or a close family friend or abank trust department.

Committee Members (5):

These people are who would make decisions if the Trustee(s) could not or if the Trustee(s) wanted more guidance. Also,If someone was not able to serve as guardian/trustee/etc., this committee would then vote on someone else bymajority. Generally, we also provideforthls type of committee in order to "control" the Trustees by a majorityvote. For example, if a majority of those on the committee feel that the trustee(s) is being unfair or becomesincapacitated, that individual can be removed and other appointed. This committee can also help the trustees makedecisions. These should be people that you trust to be fair and know your wishes.

Material Purposes

It is our practice to encourage clients to think about what is important to them in the long term if they pass away - whatIs the most important thing that you want to make sure is done? These desires are what we refer to as a 'materialpurpose' of your trust and estate plan. For example, it Is important that the real estate and other assets be retained in

the family? (You should consider if there are any farm ground implications for the kids - is there a potential that farmground may be owned in the future? Do you want to discourage the sale except in a case of emergency?) Is it

important to you that the kids have the ability to participate or own a family business? Is it important that the income

and assets in the trusts be used to fund education? In essence, it Is important to decide what Is important to you.

"Ultimate" Disposition

We ask clients to think about what they would like to happen with their assets if both of you and all children were topass away with no further lineal descendants. Where do you want your assets to go at that point? Typical answers are

other family members (le half to wife's family, half to husband's), a charity, or a combination of charities and family

members.

Anything Else

This is section we provide to make sure that you have the ability to let us know anything else that you may think is

important in regards to your estate plan. Often this relates to health/wellness/disability concerns for any party, a highdebt structure, unique life insurance situations, etc.

Let me know if you have any questions. I know this is long but I recommend going paragraph by paragraph and it

becomes manageable. We will see you at your appoint on at .

Christin P. Lovegrove, Attorney

Heinisch & Lovegrove Law Office, PC LLO

christin^HLLawOffice.com

(402) 759-3122

This e-mail contains information from a law firm which may be confidential or privileged, DO NOT FORWARD THIS E-MAIL WITHOUT ASSURING PROTECTION OFPRIVILEGED MATERIAL. If you have questions about forwarding this message, contact legal counsel first. Ail clients are advised that communication by e-mail may not besecure and may be subject to interception. The information In this e-mail is intended solely for the use of the individual or entity named above. If you are not the intendedrecipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. If you have received this electronic transmission in error,please notify me by telephone (402-759-3122) or by electronic mail [email protected]) immediately. Unless otherwise expressly indicated, any federal tax advicecontained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-relatedpenalties under the Internal Revenue Code or (il) promoting, marketing or recommending to another party any tax-related matters addressed herein.

Motivations for Estate

PlanningMost people engage in estate planning for

both rational and emotional motivations.

Commonly, individuals wish to provide for

loved ones after death and ensure that their

property is distributed in a timely manner.

For many, the minimization of expenses and

taxes Is an important goal. However, estate

planning is often guided by emotional

motivations. It gives one a sense of comfort

and security knowing that their loved ones

will be provided for and that stress for those

loved ones will be minimized because of pre

planning. Also, individuals feel a sense of

peace when they know that their property

will be distributed as desired.

These definitions or descriptions of certain

iegai terms are intended to be educationai

and not a substitute for iegai advice. Piease

contact your own attorney for legal advice

or if you have questions regarding any of

these concepts and the impact they may

have on your estate or business plan.

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Estate Planning

Hdnizch 6c Love^rovtLaw Office, FC LLC

Build an Estate Planning Team

As you proceed through the steps involved in

estate planning, you will build a team of

professionals, which may include an attorney,

accountant, insurance agent, banking or

financial planning advisors, as well as spiritual

advisors. But one of the most Important steps

you can make prior to meeting with these

professionals Is to consider and set estate

planning goals. tabbies'

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Heinisch and Lovegrove

Law Office, PC LLC

179 North 9th Street

PO Box 311

Geneva, NE 68361

Email: emalliShllawoffice.com

Phone: (402) 79-3122

Fax: (888) 844-4381

www.HLLawOffice.com

Estate Planning is a Process

Estate planning Is not a simple act of

drawing up a will or trust document.

Rather, estate planning involves the careful

consideration and arrangement for the

orderly transfer of assets at the time of

death. But complete estate planning may

Include some lifetime decisions that will

allow you to retain control of assets but

also determine who will make decisions on

your behalf should you be unable to do so

In the future. Estate planning generally

Involves the drafting of a portfolio of legal

documents intended to accomplish a

variety of goals. Your estate plan should not

be standardized, but individualized - based

on your unique goals and circumstances.

Estate Planning is for Everyone

Whether you are a male or female; married,

widowed, divorced or single; middle class or

wealthy; young or old - each Individual and

family benefits from the process of estate

planning. Depending on your life

circumstances, the plan may be quite

simple or very complex.

What are Estate Planning Goals?

A goal Is a general guideline or statement of

what you want to achieve. During your

lifetime, you accumulate property, both

real and personal, tangible and intangible.

As you begin the process of estate planning.

It is extremely helpful to think about what

you would like to have happen to those

Items of property, both during future stages

of your life and after death. More than that,

it Is useful to think about what kind of

legacy you would like to leave, both within

and outside of your family.

Why Set Goals?

Everyone has heard the expression from

Alice In Wonderland, "If you don't know

where you're going, any road will get you

there." If you attempt to articulate some

estate planning goals, these guidelines will

give focus to the process. You are more

likely to get good advice from professionals

who have an idea of what you want to

achieve. Documents will be properly

drafted and assembled. And In the long run.

It Is more likely that all your goals are

achieved and your wishes are carried out.

How to Set Estate Planning Goals

A commonly used acronym for writing goals of all

kinds is "SMART" goals. This acronym stands for the

idea that goals should be: Specific, Measurable,

Achievable, Realistic and Time-Oriented. The idea

behind "SMART" goal-setting is to be as specific as

possible. The vaguer your goals are, the less likely

anything meaningful will be accomplished.

Specific: "I want to leave gifts to charitable organizations"

is not as specific as, "I will leave ten percent of my estate

to the church of which I am a member at the time of my

death, and ten percent to the college In my hometown."

Measurable: "I want to provide for my loved ones" is not

as specific as, "I want to leave a sufficient bequest that

would pay for the college education for my three

grandchildren."

Achievable; Whether a goal is achievable, such as the goal

to pay the cost of college education for multiple children

or grandchildren must be measured against available

assets or whether the tools are available to achieve those

goals.

Realistic: It may be more realistic, depending on assets, to

leave a bequest toward the cost of some college

education, starting a business or buying a home.

"nme-orlented: Some of your estate planning goals involve

a time frame during which to start and complete the

process. Avoid stating that, "I'll start my estate planning

process this year" and instead give yourself specific

deadlines to complete various tasks: "I will complete a

written inventory of my assets by March 31 of this year."

Estate Settlement - Also referred to as

the probate process, this Is the process of

settling the affairs of a deceased person. Some

terminology related to estate settlement or

probate may include the following;

• Administrator - A person appointed by

a court to carry out the instructions

found in a will.

• Beneficiary - Person named in a will to

receive bequest.

• Bequest (legacy) - Personal property

received under a will.

• Elective Share - The legal right of a

surviving spouse to a portion of their

deceased spouse's property.

• Devise - A transfer of real property by

meansof a will.

• Executor/Executrix or Personal

Representative - A person named in a

will to carry out its instructions.

• Heirs - Those designated by law to

receive the property of a deceased

when there is no will.

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Probate Court - Court of law with

authority to verify the legality of a will

and carry out its instructions.

Taxes

Income Taxes - Income Taxes are generally

imposed by states and the federal government

and are based upon the income of the taxpayer,

less any applicable or allowable deductions.

inheritance Taxes - This is a Nebraska tax payable

to the counties based on the property transferred

at death. This tax is owed based on the degree of

relationship as well as exemption amounts. Very

few assets are exempt from inheritance tax in

Nebraska.

Estate Taxes - Federal estate tax Is a tax Imposed

on the transfer of a taxable estate of a deceased

person (decedent).

Capital Gains Taxes - Capital gains taxes are

imposed by federal government on the profit

from the sale of capital assets when the asset is

sold from more than the acquisition cost and

there is a gain on the sale. These capital assets

include items like stocks, bonds, precious metals

and real estate (property).


Law Office, PC LLC


PO Box 311

Geneva, NE 68361

Email: [email protected]

Phone: (402) 759-3122

Fax; (888) 844-4381

www.HLLawOffice.com

Estate Planning Terms

jldnLsck Sc Love^rovtLaw Office, PC LLO

These definitions or descriptions of certain legal terms are

intended to be educational and not a substitute for legal advice

please contact your own attorney for legal advice or of you have

questions regarding any of t/iese concepts and the impact they

may have on your estate or business plans.

Power of Attorney (POA) - a written

authorization to another to act on behalf or as

one's agent. The two main types of POAs are

the Durable or General POA, which usually

grants powers in regard to business-related

purposes; and the Health Care POA, which

grants powers related to health care decisions.

Will - A legal document directing the disposal

of one's property after death. Some terms

related to wills include the following:

• Codicil - A written supplement or

amendment to modify an existing will.

• Holographic Will - One that is entirely

handwritten and signed by the testator,

it may not be witnessed.

• Nuncupative Will - A will made orally.

• Intestate - To die without a will.

• Intestate Succession - Laws that direct

how a deceased assets shall be divided

when that person dies intestate.

• Testate - To die with a will.

• Testator/Testatrix - A person who

makes a will.

Trust — Ownership held by a trustee for the

benefit of another. Terminology related to trusts

may include the following:

• Fiduciary - A person in a position of trust,

responsibility, and confidence for another.

• Trustee - A person or institution that holds

property in trust for another.

• Trust Corpus - The subject matter of a

trust. Definite and ascertalnable property

that Is transferred to the trustee.

• Generation Skipping Trusts - Trusts that

are used to provide income to a generation

or two of heirs with the property eventually

passing to individuals two or three

generations down the line.

• Inter Vivos Trust (Living Trust) or

Revocable Trust or Grantor Trust - A trust

that takes effect during the life of its

creator. The trust can continue after death,

usually the grantor retains the power or

right to amend, revoke or alter the trust.

• irrevocable Living Trust - The grantor

cannot amend, revoke, or alter the trust.

• Testamentary Trust - A trust that is

intended to come into existence at death.

Its purpose is to provide for the

management of property after death. They

are contained in an individual's last will and

testament.

Capacity or Competency - A persongenerally competent to make a will (often referred

to as testamentary capacity) if the testator

understands (1) the general nature and extent of his

or her property; (2) the testator's relationship to the

people named in the will (as well as any person the

testator disinherits, also called "the natural objects

of his bounty"); (3) what a will is; and (4) the

transaction of business affairs. Competency is also

sometimes referred to as capacity. It should be

remembered that competency or capacity to make a

will is a fairly low threshold, and the fact that the

next day the testator does not remember the signing

of the will does not invalidate the will if there was

capacity at the time of execution.

Living Will - Also known as an AdvancedMedical Directive sets forth an individual's personal

wishes with respect to medical care. A living will is

best defined as a written declaration that informs

medical personnel of a person's desires not to have

life-sustaining procedures used if the individual is

diagnosed as terminally ill and cannot participate in

a decision-making process regarding treatment and

use of life-sustaining procedures that would merely

prolong the dying process.

Probate - a court procedure that serves to

transfer "clear" title to property, to establish your

official will, and to pass on assets to beneficiaries

after payment of debts and to cut off creditors from

further claims against the assets that are passed on.

General Power of Attorney

A general power of attorney gives broad

powers to a person or organization to act on

your behalf. These powers Include handling

financial and business transactions, buying

and dealing with insurance, handling all real

estate matters, settling claims, operating

business interests, and employing

professional help. This type of power of

attorney usually does not Include health

care powers. A general POA is typically

effective immediately and does not depend

on whether you are physically or mentally

incapable of managing your affairs.

Power of Attorney

Udmck 6c Love^mtLaw Office, PC LLC

Health Care Power of Attorney

A health care POA grants your agent

authority to make medical decisions for you

If you are unconscious, mentally

incompetent, or otherwise unable to make

decisions on your own. This document also

usually contains end of life directives,

commonly known as a living will. You can

combine a durable POA for Health Care and

a Living Will. When these two documents

are combined, it is more formal and should

be notarized for It to be effective.

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Law Office, PC LLC


PO Box 311

Geneva, NE 68361

Email: [email protected]

Phone: (402) 759-3122

Pax: (888) 844-4381

www.HLLawOffice.com

The following definitions or descriptions of certain legal terms are

intended to be educational and not a substitute for legal advice.

Please contact an attorney for legal advice or if you have any

questions regarding any of these concepts and the impact they

may have on your estate or business plans.

POWER OF ATTORNEY

As you think about lifetime transitions and

estate planning, one aspect is to consider

the times of life where it may be necessary

for someone to step into your shoes and

make decisions for you. You never know -

at any age - when you may be unable to

speak for yourself. A Power of Attorney

(POA) is a legal document that grants

authority to another person to manage your

affairs on your behalf. Most POAs are

intended to grant authority when you

become unable to manage your own affairs.

Although you must be competent at the

time a POA is executed, many POAs are

durable, which means that they remain in

effect during a time of incompetency.

Likewise, a POA may be revoked as long as

you are competent to do so. The person

authorizing the other to act is the principal,

grantor, or donor. The one authorized to act

is the agent or the attorney-in-fact.

Attorney-in-fact or AgentThe term attorney-in-fact is used in place of

the term agent and should be distinguished

from the term attorney-at-law. The Uniform

Power of Attorney Act employs the term

agent. As an agent, an attorney-in-fact Is a

fiduciary for the principal, so the law

requires an attorney-ln-fact to be

completely honest with and loyal to the

principal in their dealings with each other.

An attorney-in-fact can charge fees, and if

they are being paid to act for the principal,

the contract is usually separate from the

power of attorney itself.

Looking for the Right AgentTrust Is a key factor when choosing an

agent. Your agent can be a friend, relative,

or an organization. You need someone who

will look out for your best interests, respect

your wishes, and won't abuse the powers

granted to him or her. It is important for an

agent to keep accurate records and

accounting of all transactions done on your

behalf and to provide you with periodic

updates to keep you informed. If you are

unable to review updates yourself, direct

your agent to give an account statement to

a third party.

Legal Liability for an AgentAs for legal liability, an agent is held responsible

only for intentional misconduct, not for

unknowingly doing something wrong. This

protection is included in the power of attorney

documents. Agents are not customarily

compensated; most do it for free.

Types of POAsA power of attorney may be: special, general, or

temporary. A special power of attorney is one

that is limited to a specified act or type of act. A

general POA Is one that allows the agent to

make all personal and business decisions. A

temporary PDA is one with a limited time

frame.

Durable Power of AttorneyA durable power of attorney is created when

the grantor specifies that the power of attorney

will continue to be effective even when the

grantor becomes Incapacitated. This type of

power is called "power of attorney with durable

provisions."

Can I revoke a POA?

Unless the POA has been made irrevocable, you

can revoke a power of attorney at any time.Simply notify your agent in writing and retrieve

all copies of your power of attorney. Notify any

financial institutions and legal offices. If

applicable, that your agent's power of attorney

has been revoked.

Waiver to Filing a Form 706 Federal Estate Tax Return

I Jane Smith hereby agree and acknowledge that total value of the assets held by myhusband, John Smith, at the time of his death, are substantially less that the value exemptfrom Federal Estate Tax, and no Form 706 Is due at the death of rny husband for theassessment or payment of any federal estate tax. I understand and acknowledge hat theDeceased Spousal Unused Exclusion Amount (also known as the unused Federal EstateTax exemption) from my spouse's estate may be made available to rny estate for use inboth lifetime gifts as well as for estate tax purposes. I understand and acknowledge thatIf an election for portability Is made by the executor of my spouse's estate on a timely,complete and properly prepared Federal Estate Tax return for my spouse s es ate rnyestate's applicable exclusion amount would Increase by the Deceased Spousal UnusedExclusion Amount as shown on such Form 706. I hereby acknowledge that the additionof the Deceased Spousal Unused Exclusion Amount to my Basic Exclusion Amount forfederal estate tax purposes may result In substantial Federal Estate Tax savings to myestate.

I hereby acknowledge that I understand the potential federal estate tax savings to myestate through the portability of my spouse's Deceased Spousal Unused Exclusion /^mountIf the value of my estate Increases and becomes subject to Federal Estate Tax. It is myIrrevocable conclusion that I do not anticipate my estate to exceed my Basic ExclusionAmount, which Is currently equal to $5,450,000 (2016) plus an indexed increase in futurevears I understand and acknowledge that the value of my estate may grow from my laborInvestments, Inheritance, dispute or Injury settlement or order or gambling winnings^ Ihereby acknowledge and direct that the cost of preserving the Deceased Spousal UnusedExclusion Amount to be a part of my Applicable Exclusion Amount Is not warranted andI hereby waive my right to request or require the executor of my spouse s estate to fileFederal Estate tax return for my spouse's estate In order to preserve my DeceasedSpousal Unused Exclusion Amount available from my spouse. I further instruct myattorney. If applicable, not to prepare and file a Federal Estate Tax return for my spouse sestate.

I understand and acknowledge that this decision of foregoing the determination of theDeceased Spousal Unused Exclusion Amount Is a permanent, irrevocable decisionregardless of the changes In my net worth or value of my estate.

Dated: < 2014.

Jane Smith

State of Nebraska, County of Fillmore, ss.

The foregoing Waiver was acknowledged before me on , 2016, by JaneSmith, a single person, as her voluntary act and deed.

Notary Public

Prepared cn August 30.2016 (2:47pm) by HetnUch & Uvegrove Uw OfOcc PC i.LO PO Box 311. GenovR:\Probate\706\Walver706.wpd i EI#37-16S820S

EXHBT4381

ffice.ccm

NEBRASKA STATUTORY FORM POWER OF ATTORNEYDESIGNATION OF AGENT

I, John Doe, hereby name Jane Doe as my agent (my attorney In fact) who resides at 123 Blue St. Geneva,Nebraska 68361, telephone number; 402.759.0000. If my agent is unable or unwilling to act for me. I nameas my successor agent: name Billy Doe, who resides at address 123 Red St, Geneva, Nebraska 68361,telephone number: 402.759.0001. This power of attorney is durable and effective immediately. Any person,including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knowsit has terminated or is invalid.

RELEASE OF INFORMATION: I agree to, authorize, and allow full release and delivery of information withoutrestriction, by, or to any governmental agency, business, creditor, health or medical provider or third party whomay have information pertaining to my assets or income or health, to my agent named herein including but notlimited to taking control of, continuing or terminating my digital assets or digital accounts; electronic mail,electronic photographs, books, music and videos; social networking, messaging and other web-based servicessubject to the terms of the provider.

GRANT OF GENERAL AUTHORITY: I grant my agent and any successor agent general authority to act forme with respect to all of the following subjects as defined in the Nebraska Uniform Power of Attornev ActNeb. Rev. Stat. §30-4001 to §30-4045 incorporated herein by this reference, see §30-4025.

1. Real Property, §30-4027 8. Estates, Trusts, and Other Beneficial Interests, §30-2. Tangible Personal Property, §30-4028 40343. Stocks and Bonds, §30-4029 9. Claims and Litigation, §30-40354. Commodities and Options. §30-4030 10. Personal and Family Maintenance, §30-40365. Banks and Other Financial Institutions, §30- 11. Benefits from Governmental Programs or Civil or

4031 Military Service, §30-40376. Operation of Entity or Business. §30-4032 12. Retirement Plans. §30-40387. Insurance and Annuities §30-4033 13. Taxes. §30-4039

GRANT OF SPECIFIC AUTHORITY: My agent MAY NOT do any of the following specific acts for meUNLESS I have INITIALED the specific authority iisted below:

(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantlyreduce your property or change how your property is distributed at your death.INITIAL ONLY the specific authority you WANT to give your agent.)

14. [ ] Create, amend, revoke, or terminate an inter vivos trust.15. [ 1 Make gifts up to the annual dollar limits of the federal gift tax exclusion per §30-4040(2)

and any special instructions in this power of attomey.16. [ ] Make a gift, notsubiectto the limitations of the Nebraska Uniform Power of Attorney Act

and not limited bv the annual dollar limits of the federal gift tax exclusion under section2503(b) of the Intemal Revenue Code 26 U.S.C. 2503(b) as amended.

17. [ ] Create or change rights of survivorship and/or create or change a beneficiarydesignation, including but not limited to pay on death, and transfer on death designations.

18. [ ] Delegate to another person to exercise the authority granted under this power ofattorney

19. [ ] Waive the principal's right to be a beneficiary of a joint and survivor annuity, includinga sun/ivor benefit under a retirement plan.

20. [ ] Exercise fiduciary powers that the principal has authority to delegate.21. [ ] Renounce or disclaim an interest in property, including a power of appointment.

LIMITATION ON AGENT'S AUTHORITY: Except as otherwise authorized by the Power of Personal andFamily Maintenance, an agent MAY NOT use my property to benefit the agent or a person to whom the agentowes an obligation of support unless I have included that authority.

Date: February , 2016.

John Doe, Principal

State of Nebraska, County of Fillmore, ss.

The foregoing instrument was acknowledged before me on February , 2016, by the Principal, John Doe.

XXX

Notary Public

Prepared on February 11. 2019 (2:42pni) by Heinisch & Lovegrove Law Ofllce PC LLO PC Box 311, Geneva, NE 66361 402-759-31221 sR:\Estate PlannlnglP of Ally & Lv Vtfilltexample 2016 POA John.wpd El#37-1658205 www.HLLawOffice.com EmB a

EXHIBIT

♦1

JOHN DOE POWER OF ATTORNEY FOR HEALTH CARE

I appoint Jane Doe. whose address is 123 Blue St. Geneva. Nebraska 68361. and telephone number 402.759.0000. asmy attorney in fact for health care. I authorize my attorney in fact appointed by this docunnent to make health care decisionsifor me when I am determined to be incapable of making my own health care decisions. This Power of Attorney includes, but notby way of limitation, authority for Agent to consent to or permit any dental, medical, or surgical operation or treatment or othermental or physical analysis, examination, observation, procedure, test, or treatment, as well as authority to consent and permitmy confinement in an assisted living facility, hospital, nursing home or other care facility. I have read the warning whichaccompanies this document and understand the consequences of executing a power of attorney for health care.

I do not fear death itself, as much as any indignities and deterioration, dependence, and hopeless pain that I may suffer by beingkept alive by artificial means.

If I should lapse into a persistent vegetative state or have an incurable and irreversible condition that, without theadministration of life-sustaining treatment, will, in the opinion of my attending physician, cause my death within arelatively short time and I am no longer able to make decisions regarding my medical treatment. I authorize myattorney in fact to direct my attending physician, pursuant to the Nebraska Rights of the Nebraska Terminally IIIAct. to withhold or withdraw life-sustaining treatment that is not necessary for my comfort or to alleviate pain, evenif it means that I may be drowsy or sleepy and including but not limited to:

/ hydration and nutrition supplied by medical device, (tube feeding);/ medical devices put in me to help me breath (ventilator);/ cardiopulmonary resuscitation (CPR);/ major surgery;/ blood transfusions;/ dialysis; and/ intravenous fluids or antibiotics except to protect my care givers;

Provided a like recommendation confirming the fact of my incapacity be given by a second physician rendering asecond opinion, after both physicians have personally examined me. I want to be offered food and fluids by mouth,kept clean, turned and warm. I want my lips and mouth to be moistened to stop dryness. If I show signs ofdepression, nausea, or shortness of breath or hallucinations. I want my care givers to treat me.

I have read this power of attorney for health care. I understand that it allows another person to make life and deathdecisions for me if I am incapable of making such decisions. I also understand that I can revoke this power of attorney for healthcare at any time by notifying my attorney in fact, my physician, or the facility in which I am a patient or resident.

Dated: February . 2016.John Doe. Principal123 Blue Street. Geneva. Nebraska 68361402.759.9999

DECLARATION OF WITNESSES:

We declare that the principal is personally known to us. that the principal signed or acknowledged his signature on thispower of attorney for health care in our presence, that the principal appears to be of sound mind and not under duress or undueinfluence, and that neither of us nor the principal's attending physician is the person appointed as attorney in fact by thisdocument.

Witnessed on February . 2016 by:

Jack Black. Witness John Denver, Witness

State of Nebraska. County of Fillmore, ss.

On February . 2016. before me, a notary public, personally came John Doe. personally to me known to be the identical personwhose name is affixed to the above power of attorney for health care as principal, and I declare that he appears in sound mindand not under duress or undue influence, that he acknowledges the execution of the same to be his voluntary act and deed, andthat I am not the attorney in fact or successor attorney in fact designated by this power of attorney for health care. Witness myhand and notarial seal the day and year last above written.

XXX

Notary Public

Prepared on February 11. 2019 (2:42pm) by Heinisch & Lovegrovc Law Office PC LLC PC Box 311, Geneva. NE 68361 402-759-3122, Fax 888.844.4381

R^^gm^lwnmg^of^^^^^ViItexamgl^01^^Johawgd^^^_^^^^^^_^^_^_^_EI#3^1658M5^^WjHL^^ffiMjMmJmail: emaiKgihllawoffice.con

Power of Attorney

Principal Information

Your First Name M. Initial Last Name

Your Address

City State Zip Code

Your Phone Number(s)

Your Email

Agent Information - Primary

This Is the Information to complete for your primary agent. You must mark If they are yourgeneral/durable agent and/or your health care agent. If you mark "sole" below, this Is the only personwho can act for you as your agent. If you mark joint, they may act with the secondary agent.

( ] Sole [ ] Joint [ ] General/Durable Agent [ ] Health Care Agent

Agent's First Name M. Initial Last Name

Agenf s Address

City State Zip Code

Agent's Phone Number(s)

Agenf s Email

EXHIBIT

Agent Information - Secondary

This Is the Information to complete for your secondary agent. You must mark if they are your

general/durable agent and/or your health care agent. If you mark joint, they can act with your primary

agent. If you mark successor, the secondary agent may only act if and when the primary agent cannot

act on your behalf. This section may be left blank.

[ ] Joint I ] Successor [ ] General/Durable Agent [ ] Health Care Agent

Secondary Agent's First Name M. initial Last Name

Secondary Agent's Address

City State Zip Code

Secondary Agent's Phone Number(s)

O:\2017 Estate Planfiing\Power of Attorney Information.docx

HLLO

From: [email protected]

Sent: Friday, JairMWtfy 25,2019 234 PIM

To: reatestate@nebariistcom; elderiaw@nebariistcom

Cc: Timothy G. Hruza'; "William J. Mueller"Subject RE: Medical Assistance Waiver and Lien repeal, LB 593 explanation by FrankAttachments: Introduced 012319.pdf

Oh my^ I forgot to attach LB 593, Frank

From: [email protected] <[email protected]>

Sent: Friday, January 25, 2019 2:19 PM

To: '[email protected]' <[email protected]>; '[email protected]' <[email protected]>

Cc: 'Timothy G. Hruza' <[email protected]>; 'William J. Mueller' <[email protected]>

Subject: Medical Assistance Waiver and Lien repeal, LB 593 explanation by Frank

Fellow List Serve Members:

Attached is LB 593, for the partial repeal of LB 72, [2015] and LB 268 [2017] dealing withMedical Assistance Reimbursement [MAR] to retroactive repeal the DHHS waiver process topermit distribution trusts and to repeal the MAR lien that is not being enforced but creates apotential cloud on real estate titles.

Fellow section members, HELP. This whole mess arose because Nebraska lawyers were notvocal in mass when LB 72 and 268 were initially brought before the legislature. There was nonegative outpouring, with senators assuming that lawyers had no objections.

Please send an email to me at: "[email protected]" with or without a letter or

better yet send It to your state senator with copy to me that I may use it to show the Senators andJudiciary Committee that the legal community frustration over LB 72 and 268 and your support of LB593. I do not need detailed analysis, although that is welcome. What I need is a large number oflawyers supporting LB 593 voicing their desire to repeal parts of LB 72 and LB 268. I hope to presentover 300 such letters to the Judiciary Committee. Let's not sit on our duff and wonder why this messwas not cleaned up. Do not expect a reply from me, but if you want to be in direct contact with meuse [email protected].

I have been working with Bill Mueller and Tim Hruza the NSBA lobbyists. Also Nate Watsonwith DHHS has been working with us. Farm Bureau is on a campaign to help rid us of the MARlien. We welcome all the help we can get. Both the Real Estate, Trust and Probate Section and theElder Law Section went on record at the last NSBA meeting to support the partial repeal of LB 72 and268 especially dealing with the DHHS waiver to distribute trusts and the MAR lien.

As with all legislative bills, they evolve, the snowball grows going downhill. Some of thecontent of the bill evolved as DHHS brought forth issues. We hope the Governor and DHHS willsupport the final product. This bill is reasonable yet, in the spirit of compromise. If there are errorsor missed issues, please bring them to my attention. An amendment to the bill may be in order.

EXHIBIT

*10

The senators knew not the ramifications of what they adopted in 2015 and 2017. They acted inthe spirit of saving money by strengthening Medical Assistance Reimbursement. The waiver processgrew from a bureaucratic nightmare to worthless administration process that resulted in little to noMedical Assistance Reimbursement recovery. The unenforceable MAR lien creates a potential lienfor an unknown amount due after the death of both husband and wife that DHHS declines to

recognize. The only thing worse that a MAR statutory lien is one on the lx)oks that is not enforced atthis time and assuming no future enforcement.

In addition to the Waiver and Lien, there have been some compromises respecting DHHS concernsin hope that DHHS will support LB 593. Generally that is the reason why the bill is beyond the waiverand lien issues. The following is a summary of what LB 593 all about, references are to the bill'spage and line numbers, to wit:

1. First and foremost is to repeal §68-990 retroactive to August 24, 2017, which created aMedical Assistance Reimbursement [MAR] Lien that DHHS will not enforce since it does notcomply with federal law regarding the sixty month look back wherein a transfer after 60 monthsis not subject to MAR.

A potential lien with an unknown amount until death of husband and wife created a potentialcloud on real estate titles with no lien release available since the potential lien was notrecognized by DHHS.

2. Second is to remove the restriction of making a distribution from a revocable trust that becameirrevocable by reason of death without a Waiver from DHHS. The trust distribution restrictionalong with the DHHS waiver process.is repealed retroactive to August 30, 2015. See §30-3880(c) page 3 line 13 et seq, §30-3881 (b) page 8 line 23 et seq, and §30-3882(d) page 10line 22 et seq. The DHHS waiver process is no more.

This boondoggle created a great deal of bureaucracy expense for DHHS with little to no MARand a substantial frustration for the restrictions of trust distributions for families that had wealth

and Medical Assistance was out of the question. A bad situation on both sides of the fence.

3. The application process for a DHHS certificate that MAR is not due is still available. Seepage 16, line 21 We assume the DHHS form and process will remain substantially the same asnow. See page 16, line 24 A successor trustee will not need to go to probate court to receiveMAR information. See page 16, line 29 Remember a MAR certificate is a snap-shot at a"designated date," see page 16, line 22 and cannot be the final word until the recipient ofMedical Assistance and their spouse are both deceased.

DHHS would prefer not to deal with certificates but that is the only access to DHHS todetermine if there is MAR without a probate court claims proceedings with notice to DHHS tosee if they file a claim. Many individuals prefer to avoid the probate process by use of trusts,joint tenancy, etc. With LB 72 we discovered DHHS would not release the information therewas no MAR due, because of HIPAA, without a probate court order or PR appointed. LB 268resolved the release of information problem without a probate court order and that procedure isretained.

4. The authority of DHHS to release property from MAR is retained, but limited only to cases thatDHHS has certified MAR is due. Don't bother DHHS requesting a release until they certifyMAR is due. See page 17, line 3.

5. A life insurance payment of premiums by a third party test was removed, page 15, line 6seq., to continue to rely on the incidents of ownership test, page 14, line 29, which is wellestablished law. Otherwise many unanswered questions would need to be litigated when anemployee life insurance benefit paid by an employer is a constructive payment by theemployee, an unanticipated consequence.

6. There continues to be a safe harbor when a pre August 24, 2017 related party transfer ofreal estate reserving a life estate is not considered a part of the estate of a MedicalAssistance recipient under §68-919{b)(ii)(D) [now (B)]. See page 15, line 18. Transfers with areserved life estate after August 24, 2017 will qualify for the safe harbor only after 61 monthsafter the transfer. [Add a month for transition issues.] Now, until the expiration of the 60 monthlookback term, a non-safe harbor reserved life estate transfer will be a disqualifyingresource. [Retroactive to 2015 will not need to be cleaned up since only the changes areretroactive. Page 21 line 11]

7. Provision for permitting a County Attorney to litigate MAR is stricken to the relief ofDHHS. Page 19, line 7. DHHS considers this contrary to federal law without extensive CountyAttorney training.

8. §68-989 regarding MAR against income was cleaned up by striking "direct or indirect, vestedor contingent or otherwise." Page 21 line 25. Who knows what "otherwise" LLC income lookslike to disclose to DHHS on an application? DHHS will need to work on such concepts thatgrandma can understand in their regulations. Also to arena of commercially reasonable rentwas also stricken. Page 22 line 14. DHHS declined to enforce commercially reasonable rentas contrary to federal law. DHHS current policy is to decline to become involved in settingrent.

9. The limitations on issuing certified copies of Death Certificates until after a MAR search, isstricken to the relief of DHHS and in celebration of all that push for no more slowing up theprocess of issuing copies of death certificates. See page 30, line 1. This will not stop DHHSfrom continuing to file a Demand for Notice in the probate court. DHHS current policy is todecline to become involved in setting rent.

LB 593 is generally my work product without the official review and blessing of NSBA, or theSections. The purpose of this email is to educate the members of the section as to LB 593 andsuggest they communicate with their senator and the judiciary committee. I am advocating my owninterests and not on behalf of another. Also to tell me if there are problems with LB 593 that need tobe reviewed. What else needs to be done?

Best

Frank

Attorney at Law

Heinisch & Lovegrove Law Office, PC LLCFrank C. Heinisch, Attorney

Christin P. Lovegrove, AttorneyPO Box 311

Geneva NE 68361

Telephone (402) 759-3122

Fax 888-844-4381

email(S)hllawoffice.com

www.HLLawOffice.com

This e-mail cwrtains information from a law firm which may be confidentiai or privileged. DO NOT FORWARD THIS E-MAIL WITHOUT ASSURING PROTECTION OFPRIVILEGED MATERIAL. If you have questions about forwarding this message, contact legal counsel first. All clients are advised that communication by e-mail may not besecure and may be subject to interception. The information in this e-mail is intended solely for the use of the Individual or entity named above. If you are not d^e Intendedrecipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. If you have received this electronic transmission in error,please notify me by telephone (402-759-3122) or by electronic mail ̂ FrankO.HLLav.Office com; immediately. Unless otherwise expressly indicated, any federal tax advicecontained in this communication, including attachments and errclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-relatedpenalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

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LEGISLATURE OP NEBRASKA

ONE HUNDRED SIXTH LEGISLATURE

FIRST SESSION

LEGISLATIVE BILL 593

Introduced by Briese, 41.

Read first time January 23, 2819

Coonittee: Judiciary

1 A BILL FOR AN ACT relating to medical assistance recovery; to amend

2 sections 6B-919, 60-989, 68-998, 71-685, and 77-2818.82, ReiSSue

3 Revised Statutes of Nebraska, and sections 38-2463, 38-3B88,

4 38-3881, 38-3882, and 33-189, Revised Statutes Cumulative

5 Supplement, 2818; to change and eliminate provisions relating to

6 medical assistance reimbursement claims and liens; to provide for

7 retroactivity; to harmonize provisions; to repeal the original

8 sections; and to declare an emergency.

9 Be it enacted by the people of the State of Nebraska,

tabWar

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1 Section 1. Section 38-2483, Revised Statutes Cumulative Supplement,

2 2818, is amended to read:

3 38-2483 (a) Unless notice has already been given under this article

4 and except when an appointment of a personal representative is made

5 pursuant to subdivision (4) of section 38-2488, the clerk of the court

6 upon the appointment of a personal representative shall publish a notice

7 once a week for three successive weeks in a newspaper of general

6 circulation in the county announcing the appointment and the address of

9 the personal representative, and notifying creditors of the estate to

18 present their claims within two months after the date of the first

11 publication of the notice or be forever barred. The first publication

12 shall be made within thirty days after the appointment. The party

13 instituting or maintaining the proceeding or his or her attorney is

14 required to mail the published notice and give proof thereof in

15 accordance with section 25-528.81.

16 (b) If the decedent was fifty-five years of age or older or resided

17 in a medical institution as defined in subsection (l) of section 68-919,

18 the notice shall also be provided to the Department of Health and Human

19 Services with the decedent's social security number and, if the decedent

28 was predeceased by a spouse, the name and social security number of such

21 spouse. The notice shall be provided to the department in a delivery

22 manner and at an address designated by the department, which manner may

23 include email. The department shall post the acceptable manner of

24 delivering notice on its web site. Any notice that fails to conform with

25 such manner is void-and-oonctitutoe noithor notloo-to tho dopartmont nor

26 a waiver application for purpecec af any atatuto or regulation that

27 roquiroo—that—a—net4ee—of—waivor—applAootion bo provided—to tho

28 dopoFtmoBt-.

29 Sec. 2. Section 38-3888, Revised Statutes Cumulative Supplement,


31 38-3888 (UTC 615) (a) A trustee, without authorization by the court.

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1 may exercise;

2 (1) powers conferred by the terms of the trust; and

3 (2) except as limited by the terms of the trust:

4 (A) all powers over the trust property which an unmarried competent

5 owner has over Individually owned property;

6 (B) any other powers appropriate to achieve the proper investment,

7 managranent, and distribution of the trust property; and

8 (C) any other powers conferred by the Nebraska Uniform Trust Code.

9 (b) The exercise of a power Is subject to the fiduciary duties

18 prescribed by sections 38-3866 to 38-3882.

11 fc) The chanoes made to this section bv this legislative bill shall

12 aoDlv retroactlvelv to Auoust 38. 2B1S.

13 (o) Aftor tho death of tho truotor ooourring aftor August 39, 2816,

14 a-t^motoo of a rovooablo truct whloh hoe booono Irrovooablo by roacon of

15 the—doath of—the tructor—Dhall—net—transfer—tnuet—property—to a

16 bonoflolary dooorlbod In cootlon 77 3991 or 77 2088 In relation to tho

17 t-huot-or—prior—to oatlcfaotlon of all—elaliiG—fen—modloal aoolotaneo

18 rolwburcomont pursuant to cootlon 68 010 to tho extent noooooary to

19 dlGohargo any cuoh elalw remaining unpaid aftor application of tho ascoto

28 of tho tructor'g probato octatoi—Tho Department of Health and Human

21 SorvlooG niayi—upon opplioatlon of a truotooi waive tho rootrlotlon on

22 tr^inofonc-octoblAohod by this eubeootlon In oacoo In whioh tho department

23 dotorwlnoo that olthor thoro Ic no modloal aoclctanoo rolmbunoomowt—duo

24 or aftor tho propoood trancfor ic made thoro will bo oufflolont—aoooto

25 remaining in tho trust or tructor'e probato ootato to oatlcfy all cuoh

26 clalwc for medtcal accictanco rolmburcomont■ If there ic—no modical

27 aociotanoo roimbunoomont—du0| tho -dopantmont ohall waive tho rootrlotlon

28 within sixty days after rooolpt of the truotoo'o roquoot for waiver and

29 tho doooaood—truotor'o name and—ooolal ooourlty number—and?—if—the

38 truotor was prodoooaood by a cpouoo, tho name and social ooourity number

31 of ouch spouse I A truotoo who lo a flnanolal institution ac defined in

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L85932819

1 ceotion 77-8B9i| a truct company ohartorod pursuant to tho Nebraska Trust

2 Company Aoti or an attornoy lloensod—to prootioo in—this—state way

3 dlotrlbuto ossots from tho trust prior to the rooolpt of tho walvor from

4 t'ho-dopartmont If tho truot-oo-oignc a rooltal under oath that—ototeo-tho

5 dooodont'c naito and sooial ooourity number and| if tho dooodont was

6 pnodoooacod by a spouooi—tho namo and cooiol security number of cuoh

7 opousof and that tho tructor was not a rooiplont of modloal asslstanoo

8 and no olaimc for medical ascictanoo oxict under ceotion 68 QiQ. Tho

9 truotoe-shall send cuoh rooltal to tho dopartmont ■ A truotoo who makos

18 cuoh a rooltal knowing tho rooltal lo false-booomeo-popoonally liable for

11 modloal oooiotanoo rolmbuMomont-pwwHiBt—to-ooot'ion 68 010—t-o—t-ho—owt-ent

12 of tho acoeto-dictributod from tho trust noccccary to disohargo any such

13 eiaim—comaining—unpaid—after—applioat-ion—ef—tho accotc of—the

14 t-ronoforor's probato estate ■—The—roquoot—for waiver—and tho recital

15 docoribod in this SMbsoction shall bo providod to tho dopartmont in a

16 delivery manner and at an address dosignatod by tho dopartmont, whloh

17 mannor may inoludo email■ Tho dopartmont shall post tho aoooptablo manner

18 of delivery on its web cltoi Any roquoot for walvor or rooltal that fails

19 to conform with cuch mannor Ic voidi.


21 2818, Is amended to read:

22 38-3881 (UTC 816) (a) Without limiting the authority conferred by

23 section 38-3888, a trustee may:

24 (1) collect trust property and accept or reject additions to the

25 trust property from a settlor or any other person;

26 (2) acquire or sell property, for cash or on credit, at public or

27 private sale;

28 (3) exchange, partition, or otherwise change the character of trust

29 property;

38 (4) deposit trust money In an account In a regulated flnanclal-

31 service Institution;

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1 (S) borrow money. Including from the trustee, with or without

2 security, and mortgage or pledge trust property for a period within or

3 extending beyond the duration of the trust;

4 (6) with respect to an interest in a proprietorship, partnership,

5 limited liability company, business trust, corporation, or other form of

8 business or enterprise, continue the business or other enterprise and

7 take any action that may be taken by shareholders, members, or property

8 owners, including merging, dissolving, or otherwise changing the form of

9 business organization or contributing additional capital;

10 (7) with respect to stocks or other securities, exercise the rights

11 of an absolute owner, including the right to:

12 (A) vote, or give proxies to vote, with or without power of

13 substitution, or enter into or continue a voting trust agreement;

14 (B) hold a security in the name of a nominee or in other form

15 without disclosure of the trust so that title may pass by delivery;

18 (C) pay calls, assessments, and other sums chargeable or accruing

17 against the securities, and sell or exercise stock subscription or

IB conversion rights; and

19 (D) deposit the securities with a depositary or other regulated

28 financial-service institution;

21 (8) with respect to an interest in real property, construct, or make

22 ordinary or extraordinary repairs to, alterations to, or improvements in,

23 buildings or other structures, demolish improvements, raze existing or

24 erect new party walls or buildings, subdivide or develop land, dedicate

25 land to public use or grant public or private easements, and make or

26 vacate plats and adjust boundaries;

27 (9) enter into a lease for any purpose as lessor or lessee,

28 including a lease or other arrangement for exploration and removal of

29 natural resources, with or without the option to purchase or renew, for a

38 period within or extending beyond the duration of the trust;

31 (18) grant an option involving a sale, lease, or other disposition

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1 of trust property or acquire an option for the acquisition of property,

2 including an option exercisable beyond the duration of the trust, and

3 exercise an option so acquired;

4 (11) insure the property of the trust against damage or loss and

5 insure the trustee, the trustee's agents, and beneficiaries against

8 liability arising from the administration of the trust;

7 (12) abandon or decline to administer property of no value or of

B insufficient value to Justify its collection or continued administration;

9 (13) with respect to possible liability for violation of

18 environmental law;

11 (A) inspect or investigate property the trustee holds or has been

12 asked to hold, or property owned or operated by an organization in which

13 the trustee holds or has been asked to hold an interest, for the purpose

14 of determining the application of environmental law with respect to the

15 property;

18 (B) take action to prevent, abate, or otherwise remedy any actual or

17 potential violation of any environmental law affecting property held

18 directly or indirectly by the trustee, whether taken before or after the

19 assertion of a claim or the initiation of governmental enforcement;

28 (C) decline to accept property into trust or disclaim any power with

21 respect to property that is or may be burdened with liability for

22 violation of environmental law;

23 (D) compromise claims against the trust which may be asserted for an

24 alleged violation of environmental law; and

25 (E) pay the expense of any inspection, review, abatement, or

28 remedial action to comply with environmental law;

27 (14) pay or contest any claim, settle a claim by or against the

28 trust, and release, in whole or in part, a claim belonging to the trust;

29 (IS) pay taxes, assessments, compensation of the trustee and of

38 employees and agents of the trust, and other expenses incurred in the

31 administration of the trust;

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1 (16) exercise elections with respect to federal, state, and local

2 taxes;

3 (17) select a mode of payment under any employee benefit or

4 retirement plan, annuity, or life insurance payable to the trustee,

5 exercise rights thereunder, including exercise of the right to

6 indemnification for expenses and against liabilities, and take

7 appropriate action to collect the proceeds;

8 (18) make loans out of trust property, including loans to a

9 beneficiary on terms and conditions the trustee considers to be fair and

10 reasonable under the circumstances, and the trustee has a lien on future

11 distributions for repayment of those loans;

12 (19) pledge trust property to guarantee loans made by others to the

13 beneficiary;

14 (20) appoint a trustee to act in another Jurisdiction with respect

15 to trust property located in the other jurisdiction, confer upon the

16 appointed trustee all of the powers and duties of the appointing trustee,

17 require that the appointed trustee furnish security, and remove any

18 trustee so appointed;

19 (21) pay an amount distributable to a beneficiary who is under a

20 legal disability or who the trustee reasonably believes is incapacitated,

21 by paying it directly to the beneficiary or applying it for the

22 beneficiary's benefit, or by:

23 (A) paying it to the beneficiary's conservator or, if the

24 beneficiary does not have a conservator, the beneficiary's guardian;

25 (B) paying it to the beneficiary's custodian under the Nebraska

26 Uniform Transfers to Minors Act or custodial trustee under the Nebraska

27 Uniform Custodial Trust Act, and, for that purpose, creating a

28 custodianship or custodial trust;

29 (C) if the trustee does not know of a conservator, guardian,

30 custodian, or custodial trustee, paying it to an adult relative or other

31 person having legal or physical care or custody of the beneficiary, to be

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1 expended on the beneficiary's behalf; or

2 (D) managing it as a separate fund on the beneficiary's behalf,

3 subject to the beneficiary's continuing right to withdraw the

4 distribution;

5 (22) on distribution of trust property or the division or

6 termination of a trust, make distributions in divided or undivided

7 interests, allocate particular assets in proportionate or

8 disproportionate shares, value the trust property for those purposes, and

9 adjust for resulting differences in valuation;

10 (23) resolve a dispute concerning the interpretation of the trust or

11 its administration by mediation, arbitration, or other procedure for

12 alternative dispute resolution;

13 (24) prosecute or defend an action, claim, or Judicial proceeding in

14 any Jurisdiction to protect trust property and the trustee in the

15 performance of the trustee's duties;

16 (25) sign and deliver contracts and other instruments that are

17 useful to achieve or facilitate the exercise of the trustee's powers; and

18 (26) on termination of the trust, exercise the powers appropriate to

19 wind up the administration of the trust and distribute the trust property

28 to the persons entitled to it.

21 fb^ The changes made to this section bv this legislative bill shall

22 aoalv retroactively to August 30. 201S.

23 (b) After tho death of tho truotor ooourring aftor August 80| aoiB>

24 o-t-wot-oo of a rovoooblo truot which hao booomo irrovooable by ronoon of

25 the—death—at—the truotor—chaH—net—t-tanetot—truot—pfopoft^y—te—a

26 bonofioiary dooeribed in^ oection 77-200<l or 77 aoos in relation to tho

27 truotor—pFten—to oatlofaotion of—all olaiwe—fw—wodlool—aoolotenoo

28 <K:imbUHK)iiiont purouant—to oootion 68-010—to tho oxtont—noooooary to

29 dtoohargo any ouoh olaiw ■rowaining-unpatd-after application of tho aocoto

30 Qf tho truotor'c probate octato.—Tho Popartwent ef Hoalth and Human

31 SorviooD wayj upon application of a truotoo> waAvo tho rootriotion on

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1 t-fOBefaw oetabMchod by thio cubcoction In oacoo In wtiloh tho dopartwont

2 dotorminoo that oithor thoro Ic no modiool—oooAotanoo rolmbUHKMHOBt—duo

3 or aftor tho propoood-t-WMWfor ic mado thoro will bo cuffloiont accoto

4 TOwaiBlBg in tho truot or truotor'o probato-oototo to oatlofy all cuoh

5 rInline for modioal ncclotanoo—FolinbuBiioinont■ If—thoro ic—no modical

6 acGlotanoo roiwbur-oowoBt—dooi tho dopartmont ohnll waive tho roctriotion

7 within oiMty dayo aftor roooipt of tho truoteo^o roquoot for woivor and

8 tho docoacod—tructor'c namo and cooial—soeurity nanibor—andj if—the

9 truotor wao prodoooaood by a cpouooi tho ntuno and oooial-ooourity numbor

10 of cuoh opouooi A truotoo who ic a finanoial inotitution ao -do^lBod—Ib

11 cootion 77 a891| a truot company ohapt-(M=od—piiroiiOBt- to tho Mobraoka Truot

12 Company /wt|—or an attorney liconeod to praotieo in thic otato may

13 d-ict-Bdbuto accoto from the-teuct—prior to tho roooipt of tho waivor from

14 tho dopartmont if tho truotoo eignc a rooital under oath that ctatoo-tho

15 docodont-'c namo and Gooial cocurity number andi if tho dooodont wac

16 ppodoooaood by a opouooi tho namo and cooial coourity numbor of cuoh

17 cpouco; and that-tho—tnmotor wac not a rooipiont of modioal aocictanoo

18 and no olaimo for modioal—aociotanoo oxiot undor cootion 68-010 ■—The

19 t-wiet-ee-ehaUi cond cuoh rooital to tho dopartmont ■ A truotoo who mahoc

26 cuoh a rooital hnowing tho rooital ic foloo booomoo porconally liable for

21 modioal'acoilotanoo roimbuBoomoBt-pureuant to cootion 66'OlO-t'O-tho-OKteBt

22 of tho acooto-diotributod from tho truot noooooary to dtoohoBflo-any cuoh

23 el^M—rowaining—unpaid—aftor app-lioot4oB—of—tho—ooootc—of—the

24 t-naBodowr'o probate ootatoi—Tho—noquoct—for waiver and—tho—rooital

25 dOGOBibod in thic oubcootion ohall—bo—peovidod to tho dopartmont in o

26 dolivory manner and at an addrocc doctgnatod by tho dopartmonti which

27 mannor may inoludo email■ Tho dopaetmoBt—ohall poot tho aoooptoblo manner

28 of delivery on ito wob citoi Any roquoot for waiver or rooital that failo

26 to oonform with ouoh manner io voidi



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1 38-3882 (UTC 817) (a) Uaon Ewoopt ac limited in cubcootion (d) of

2 thio oootioni upon termination or partial termination of a trust, the

3 trustee may send to the beneficiaries a proposal for distribution. The

4 right of any beneficiary to object to the proposed distribution

5 terminates if the beneficiary does not notify the trustee of an objection

8 within thirty days after the proposal was sent but only if the proposal

7 informed the beneficiary of the right to object and of the time allowed

8 for objection.

9 (b) Unon Ewoopt ao limited in oubcootion (d) of thio oootioof upon

16 the occurrence of an event terminating or partially terminating a trust,

11 the trustee shall proceed expeditiously to distribute the trust property

12 to the persons entitled to it, subject to the right of the trustee to

13 retain a reasonable reserve for the payment of debts, expenses, and

14 taxes.

15 (c) A release by a beneficiary of a trustee from liability for

16 breach of trust is invalid to the extent:

17 (1) it was induced by improper conduct of the trustee; or

18 (2) the beneficiary, at the time of the release, did not know of the

19 beneficiary's rights or of the material facts relating to the breach.

26 fd^ The chanaes made to this section bv this legislative bill shall

21 aonlv retroactively to August 38. 291S.

22 <d) Aftor tho death of tho truotor ooourring aftor rtuguct 36| 2616,

23 a-tBuotoo of a rovooobla-truot whioh hoc booomo irrovooablo by roaoon of

24 tho death of—the—t'BuotoB—chaU—net—tBanofoB—tBuet—property—to a

25 bonofeioiary docorlbod in cootion 77 a99< or 77 2668 in rolation to tho

26 tructor prior—te caticfaction of—all olaimo for—modioal—nsBiBtanoe

27 BolmbuBoomoBt—puBouant—te—cootion 68 010—te—tho extent—noooooary to

28 dicohoBgo any ouoh olaim 'romoining' unpaid-aftor applloation of tho aoooto

29 of tho truotor'c probate ootatoi—Tho Dopartmont of Health and Human

38 Eorvlooo mayi upon application of a tructooi waive tho roctriotion on

31 tranoforo ootablichod by thic cubcootion in oaooo in whioh tho dopartmont

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2019

1 dotorwlnoG that oithor thoro ic no modical aoclBtttnoo roliii>>w=60iiioHt—<luo

2 or after the propoood-t-roncfor Ic made thoro will bo ouffloi«mt—aooot-o

3 romaining in tho truot or tructor'o probato ootato to coticfy all ouoh

4 olaliBO for wodloal aooiotanoo rolmbureoinonti—If thoro ic no wodioal

5 asBistanoo roIwbMrcoiiont dwoi tho dopartaont ohallr waive tho rostriotlon

6 within olMty doyo oftor rooolpt of tho tructoo'o roquoot for walvor and

7 tho cloooaood truotorto na»o and eooial ooourity nuwbor andi—If tho

0 tructpr woo prodeoooBotl by a spouso, tho nawo and eooial ooourity number

9 of cuoh cpouDOi A tructoo who ic a flnanoial inotitution ao dofinod in

10 cootion 77 3B91t a truot oompany ohartsotgod-pwouaBfe to tho Wobraoka Truot

11 Company ftoti or an attorney lioonood to prootioo in thio—otato may

12 dictributo accotc from tho truot prior to tho rocoipt of tho waiver from

13 tho-<topartii>ont if tho truot<)o-c49nc a rooital under oath that—otatoo tho

14 dooodont'o nawo and eooial ooourity numbor andi if tho dooodont wao

15 pwdoooacod by a cpoucoi—tho name and eooial ooourity number of ouoh

16 opouoof and that -t4w)—t-wotor wao not o roolplont of wodiool aooiotanoo

17 and no olaimo for wodloal aooiotanoo oniot undor cootion 68 010■—Ihe

18 t-wietoo-ohall oond-ouoh-rooital to tho dopartmonti ft tructoo who wakoo

19 cuoh a rooital Knowing tho rooital lo falco-bocowoo poroonally liable for

29 mod-lool-^oolotanoo roimburooiHOBt-pwcuant to cootion 68-0-10-t-o-t4M>-o>tt-ont-

21 of tho aooot-o-diotributod from tho truot noooooory to dicohargo any cuoh

22 oteim—romaining unpaid aftor—application of—tho aoooto—of—tho

23 tmanofotor'o probato ootato ■—Tho roquoot—for walvor and—tho rooital

24 doooribod in thio—ouboootion ohall bo provided to tho dopartwont in a

25 dolivory wanner and at an addrooo—dooignotod by tho dopartmonti which

26 manner may inolwda email■ Tho dopartmont ohall poet tho accoptable manner

27 of dolivory on ito wob oitoi /Vny roquoot for waiver or rooital that failo

28 to conform with ouoh manner ic voidi



31 33-169 (1) The register of deeds and the county clerk shall receive

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LB5932619

LB5932619

1 for recording a deed, mortgage, or release, recording and indexing of a

2 will, recording and indexing of a decree in a testate estate, recording

3 proof of publication, or recording any other instrument, a fee of ten

4 dollars for the first page and six dollars for each additional page, two

5 dollars and fifty cents of the ten-dollar fee for recording the first

6 page and fifty cents of the six-dollar fee for recording each additional

7 page shall be used exclusively for the purposes of preserving and

8 maintaining public records of the office of the register of deeds and for

9 modernization and technology needs relating to such records and

16 preserving and maintaining public records of a register of deeds office

11 that has been consolidated with another county office pursuant to section

12 22-417 and for modernization and technology needs relating to such

13 records. The funds allocated under this subsection shall not be

14 substituted for other allocations of county general funds to the register

15 of deeds office or any other county office for the purposes enumerated in

16 this subsection.

17 (2) The cost for a certified copy of any instrument filed or

IB recorded in the office of county clerk or register of deeds shall be one

19 dollar and fifty cents per page.

26 (3) Ho foDD ohall bo roooivod for rooording inotrumonto for tho

21 Dopartmont of Hoalth and Human Borviooo purouont to cootion 68 006■

22 Sec. 6. Section 68-919, Reissue Revised Statutes of Nebraska, is

23 amended to read:

24 68-919 (1) The recipient of medical assistance under the medical

25 assistance program shall be indebted to the department for the total

26 amount paid for medical assistance on behalf of the recipient if:

27 (a) The recipient was fifty-five years of age or older at the time

28 the medical assistance was provided; or

29 (b) The recipient resided in a medical institution and, at the time

36 of institutionalization or application for medical assistance, whichever

31 is later, the department determines that the recipient could not have

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2019

1 reasonably been expected to be discharged and resune living at home. For

2 purposes of this section, medical institution means a nursing facility,

3 an intermediate care facility for persons with developmental

4 disabilities, or an inpatient hospital.

5 (2) The debt accruing under subsection (1) of this section arises

6 during the life of the recipient but shall be held in abeyance until the

7 death of the recipient. Any such debt to the department that exists when

B the recipient dies shall be recovered only after the death of the

9 recipient's spouse, if any, and only after the recipient is not survived

10 by a child who either is under twenty-one years of age or is blind or

11 totally and permanently disabled as defined by the Supplemental Security

12 Income criteria. In recovering such debt, the department shall not

13 foreclose on a lien on the home of the recipient (a) if a sibling of the

14 recipient with an equity interest in the home has lawfully resided in the

15 home for at least one year before the recipient's admission and has lived

16 there continuously since the date of the recipient's admission or (b)

17 while. the home is the residence of an adult child who has lived in the

18 recipient's home for at least two years immediately before the recipient

19 was institutionalized, has lived there continuously since that time, and

20 can establish to the satisfaction of the department that he or she

21 provided care that delayed the recipient's admission.

22 (3) The debt shall include the total amount of medical assistance

23 provided when the recipient was fifty-five years of age or older or

24 during a period of institutionalization as described in subsection (1) of

25 this section and shall not include interest.

28 (4)(a) Thie-Bubcootion applioo to the fullost oxtont pormittod by 43

27 U.StC.—1306pi Qc cuoh Gootion oxiotod on January l, 2917■ It is the

20 Intent of the Legislature that the debt specified in subsection (l) of

29 this section be collected by the department before any portion of the

30 estate of a recipient of medical assistance is enjoyed by or transferred

31 to a person not specified in subsection (2) of this section as a result

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LBS932019

1 of the death of such recipient. The debt may be recovered from the estate

2 of a recipient of medical assistance. The department shall undertake all

3 reasonable and cost-effective measures to enforce recoverv under the

4 Medicaid Assistance Act. All persons snecifled in subsections (2\ and f4^

5 of this section shall cooperate with the department in the enforcement of

6 recoverv under the act.

7 (b) For purposes of this section:

8 (i) Estate of a recipient of medical assistance means any real

9 estate, personal property, or other asset in which the recipient had any

10 legal title or interest at or immediatelv orecedino the time of the

11 recipient's death, to the extent of such interests. In furtherance and

12 not in limitation of the foregoing, the estate of a recipient of medical

13 assistance also includes:

14 (A) Assets to be transferred to a beneficiary described in section

15 77-2084 or 77-2085 in relation to the recipient through a revocable trust

16 or other similar arrangement which has become irrevocable by reason of

17 the recipient's death; and

IB (B) Notwithstanding anything to the contrary in subdivision (3) or

19 (4) of section 68-923, assets conveyed or otherwise transferred to a

20 survivor, an heir, an assignee, a beneficiary, or a devisee of the

21 recipient of medical assistance through Joint tenancy, tenancy in common,

22 transfer on death deed, survivorship, conveyance of a remainder interest,

23 retention of a life estate or of an estate for a period of time, living

24 trust, or other arrangement by which value or possession is transferred

25 to or realized by the beneficiary of the conveyance or transfer at or as

26 a result of the recipient's death to tho full oxtont authortood in <a

27 U.S.C, ia06p(b)(4)(B). Such Other arrangements include insurance policies

28 or annuities in which the recipient of medical assistance had at the time

29 of death any incidents of ownership of the policy or annuity or the power

30 to designate beneficiaries and any pension rights or completed retirement

31 plans or accounts of the recipient. A completed retirement plan or

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2019

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2B19

1 account is one which because of the death of the recipient of medical

2 assistance ceases to have elements of retirement relating to such

3 recipient and under which one or more beneficiaries exist after such

4 recipient's death; and

5 (ii) Estate of a recipient of medical assistance does not include;

6 'fA)—Incuranoo—polioioo—in proportion—te—tho prowiumo and—othof

7 paymonto to tho Ihcuhihoo oarrior that woro paid by oomoono other than

8 tho roeipiont of modioal accictanoo or tho rocipiont'c cpouco;

9 (B) InouwHoo—pw)ooodo—and aooounto in inot-itotiono undor fodoral

IB cuporvicion or cuporvioion of tho—Doportmont of Banteing—and rinanoo or

11 Dopartmoflt of Incuranoo to tho oxtowt—cubjoot to a ooourity intoroet

12 whoro tho-cocupod-party ic not a rolatod trano^otw-ac dofinod in coction

4 eo ■XO

14 4^ Insurance proceeds, any trust account subject to the Burial

15 Pre-Need Sale Act, or any limited lines funeral insurance policy to the

16 extent used to pay for funeral, burial, or cremation expenses of the

17 recipient of medical assistance;

18 XBl Conveyances of real estate made prior to August 24, 2017,

19 that are subject to the grantor's retention of a life estate or an estate

20 for a period of time; and

21 X£1 4^ Any pension rights or completed retirement plans to the

22 extent that such rights or plans are exempt from claims for reimbursement

23 of medical assistance under federal law.

24 (c) As to any interest in property created after August 24, 2017,

25 and for as long as any portion of the debt arising under subsection (1)

26 of this section remains unpaid, the death of the recipient of medical

27 assistance shall not trigger a change in the rights to possession,

28 enjoyment, access, income, or otherwise that the recipient had at the

29 time of death and the personal representative of the recipient's estate

30 is empowered to and shall exercise or enjoy such rights for the purpose

31 of paying such debt, including, but not limited to, renting such property

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2019

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2019

1 held as a life estate, severing Joint tenancies, bringing partition

2 actions, claiming equitable rights of contribution, or taking other

3 actions otherwise appropriate to effect the intent of this section. Such

4 rights shall survive the death of the recipient of medical assistance and

5 shall be administered, marshaled, and disposed of for the purposes of

6 this section. In the event that a claim for reimbursement is made as to

7 some, but not all, nonprobate transferees or assets, the party or owner

8 against whom the claim is asserted may seek equitable contribution toward

9 the claim from the other nonprobate transferees or assets in a court of

10 applicable Jurisdiction. Except as otherwise provided in this section and

11 except for the right of the department to recover the debt from such

12 interests in property, this subsection in and of itself does not create

13 any rights in any other person or entity.

14 The department, upon annllcatlon of the personal rBPresentatlve

15 of an estate, anv person or entitv otherwise authorized under the

16 Nebraska Probate Code to act on behalf of a decedent, anv person or

17 entitv having an interest in assets of the decedent which are subject to

18 this subsection, a successor trustee of a revocable trust or other

19 similar arrangement which has become irrevocable bv reason of the

20 decedent's death, or anv other person or entitv holding assets of the

21 decedent described in this subsection, shall tlmalv certlfv to the

22 aoDllcant. that as of a designated date, whether medical assistance

23 reimbursement is due or an aonlication for medical assistance was nendino

24 that may result in medical assistance reimbursement due. An aoDlicatlon

25 for a certificate under this subdivisinn shall be provided to the

26 department in a delivery manner and at an address designated bv the

27 department, which manner may include email. The department shall oost the

28 acceptable manner of delivery on its web site. Anv application that fails

29 to conform with such manner Is void. Hotwithstandlna the lack of an order

30 bv a court desionatlno the applicant as a person or entitv who mav

31 receive information protected bv applicable privacy laws, the applicant

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1 shaU have the authority of a personal representative for the limited

2 purpose of seeking and obtaining frwn tha department this certification.

3 If. In response to a certification reouest. the denartment certifies that

4 reimbursement for medical assistance Is due, the denartment mav release

5 some or all of the property of a decedent from the provisions of this

6 subsection.

7 —Unlooo inoludablo in tho octato of o rooipiont of siodloal

8 aootctanoo—purcuant to this coction as it oxictod prior to /VuflMct a4>

9 aei7| an intoroot in real oototo tranoforrod to a related trancforoo-ao

16 dofinod in cootion 68-009 anil voctod in cuoh rolatCKl-t-«mcforoo prior to

11 Auguot a4f 2917, ohall not bo part of tho—oot'Ota of tho rooipiont of

12 wodioal accictanoo unleop roquirod diocloouros wore not mado at tho tiwo

13 of opplioQtion for wodioal-Qoolct-aHoo under cootion 68 060 or at tho tiwo

14 of any roviow by tho dopartwont of tho—Fooif^oat-'o eligibility fo*^

15 wodiaaX assictanco.

16 Co) Tho dopar-tmoHti upon application of tho-porconal roprocontativo

17 of on ootatoi any porcon othorvdco authorized under tho MobraoltQ Probate

18 Codo to aot on behalf of a dooodont; any poroon having an ■intoroot in

19 acootc of tho dooodont which aro cubjoot to thic SMbcootionf a cucoaooaa

28 truotoo of a rowooablo truct or other oimilor orrangomont which hao

21 booowo irrovooablo by roaoon of tho dooodoHt-^a doath> or any other poroon

22 holding—acootc of—ttte—dooodont—doeoribod—in thlc cubcootion> ohall

23 roloQco ■como or all of tho property of a dooodont from tho prcw-io-iOHo-of

24 thio cubcootion in oacoo in whioh tho dopartwont-dotorminoo that either

25 there ic no modioal ■aoolotQnoo roimburcomont-duo and no-appliootion for

26 modioal accictanoo has boon filed on behalf of tho donodont or that there

27 will bo cuffioiont acootc of tho probate ootato of tho dooodont to

28 OQtlofy all ouoh oloimo for modioal"aooiotanoo roimbUFcomont■ If there lo

29 no modioal accictanoo roimburcomont duo and no opplioation for modioal

38 aGOlctanoo hac boon filed on bohalf of tho dooodonti tho dopartniont chall

31 oortify to tho applioant that no roimburcomont—io-duo-ao-owpoditiouoly do

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LB5932819

1 roaconably pooclble but In no event more than duty dayo aftor rooolpt of

2 t4M)-Qpp-lioationi tho dooodont'o name and-coolol coourlty numbori and| if

3 t4M»—dooodont wao prodoooacod by a cpoucoi tho name—and—ooolol ooourity

4 number of ouoh opouooi—Failure of tho dopant-mont to timely maho ouoh

5 oortlfloatlon ohall eubjoot tho dopartment to payment of the applloant'c

6 Foaoonobla attorney'o fooo and oooto An an action for mandomuc filed in

7 either Lanoaotor County or tho oounty in whioh tho probate ootion or

8 Inheritance tan prooooding Ic pending.—Tho department—ohall annually

9 Fopont—t-o tho Logiolaturo tho amount and olroumctanooo of ouoh attorney'o

18 ftwo-and-ooot-o-paid I If tho dopartwont dotorminoo that thoro lo wodioal

11 Qoodotonoo—Folmbunoomont—duo or—that an application for—wodioal

12 aoolctance hao boon filed on bohalf of tho dooodonti tho dopartwont ohall

13 mail notioo-t4wH»oof to tho-app-Hoant within ouoh cinty-day period ■ Notioo

14 otating that a demand for notioo hao boon filed purcuant to-cuboootion

15 (a) of cootion 71.696 ohall—cuffloo for—purpoooo of—the—notioo

16 roquiromonti Failure of tho dopartwont to provide tho roquirod notioo

17 dioohargoo-tho-dobt—owmtod under thio oootion unlooo-t4M)-dopartwont hao

18 pFOwlouo-ly filed a demand for notioo undor ouboootion (3) of cootion

19 71-698. An application undor thio cubdlvlolon ohall bo provided to tho

28 department In a dolivory wanner and at an addrocc docignatod by tho

21 dopartwontI whioh wanner way Include email. Tho dopaptmoat-ohall poet tho

22 aooopt-ablo manner of dolivory on ito wob oito. Any application that failo

23 to conform with ouoh manner io ooid. Tho dopoFtmont ohall not roqulro> ao

24 part of tho applioationi that on applioant cubmit information beyond what

25 ic-noodod to Implomont—t-hio cubdiwioioni Wotwithotanding tho look of an

26 erdeF—by a court dooignatlng—a—trwctee—op—oucoocoop—truotoo of a

27 PovoooMrO truot or-othor oimilor arrangomont whioh hoc booomo Irrovooablo

28 by roaoon-of'tho-dooodent'o doath ao a poroon who may roooloo Information

29 in oonjunotion with applioablo privacy low> ouoh poroon ohall hove tho

38 authority of a poroonal roprooontatlve with rocpoot to tho truot acsots,

31 including, but not limited tO| tho authority to cooh and to obtain from

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LBSgS

2G19

LB593

2019

1 tho dopartwnt Infamiatlon pratootod by appltoabla privacy lawi and tho

2 dopoptwoHt oholl roloooo tho infomiatlon roquootod to tho tructoO to tho

3 OMtont it io rolovant to rooolving Iccuoo relating to rolwburooiiiont-o^

4 iwdloal oocictanoo or tho ■odtlRlot-ratlon thoroof ■

5 (f) Jn tho ovont that tho dopartaont dooo not cook to rooovor

6 iwdloal-acoiotoHoo roimburoowont for a period of oightoon Bonthe aftor it

7 lo ontltlod to do ooj tho county attornoy of tho county In which tho

6 roolplont of wodiaal acolctanoo laet roeidodi—ar in tha caco of roal

9 ootatOf tho county where tho real ootato lo looatodi my oook tho oonoont

10 of tho doportwowt-to onforoo tho righto of tho dopartwonti Tho-dopat=t-«iowt-

11 ohall dotorwlno whothor or not to grant ouoh oonoont within duty daye

12 aftor tho oonoont Ic—poquootatf^—if tho dopaptwowt—failc—to wafco a

13 dotorwlnatlon within tho olnty day porlodi ouoh oowooBt—otwU-^Ki—dooiiiod

14 to havo boon—gwint'Otti—Tho dopartwont—inay—net—unroaconably withhold

15 oonoont to tho hrAnfllnfl af eaah aatlani If tha aawnty attorney brlngc

16 eeeh—an—aotloni—the—oounty chall—bo ontltlod—to ouoh—neaconablo

17 attornoy'0 fooo ao dotorininod by tho oourt with Juricdlotlon of tho

10 notion I Tho dopartwont ohall glvo Ito full oooporntion to ouoh oounty

19 attornoyI

20 ££l An action for recovery of the debt created under subsection

21 (1) of this section may be brought by the department against the estate

22 of a recipient of medical assistance as defined in subdivision (4}(b} of

23 this section at any time before five years after tha last of the

24 following events:

25 (i) The death of the recipient of medical assistance;

26 (ii) The death of the recipient's spouse, if applicable;

27 (lii) The attainment of tha age of twenty-one years by the youngest

28 of the recipient's minor children, if applicable; or

29 (iv) A determination that any adult child of the recipient is no

30 longer blind or totally and permanently disabled as defined by the

31 Supplemental Security Income criteria, if applicable.

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1 (S) In any probate proceedings in which the department has filed a

2 claim under this section, no additional evidence of foundation shall be

3 required for the admission of the department's payment record supporting

4 its claim If the payment record bears the seal of the department, is

5 certified as a true copy, and bears the signature of an authorized

6 representative of the department.

7 (6) The department may waive or compromise its claim. In whole or in

8 part, if the department determines that enforcement of the claim would

9 not be In the best Interests of the state or would result In undue

10 hardship as provided in rules and regulations of the department.

11 (7) Whenever the department has provided medical assistance because

12 of sickness or injury to any person resulting from a third party's

13 wrongful act or negligence and the person has recovered or may recover

14 damages from such third party, to the fullest extent permitted by federal

15 law and understandings entered into between the state and federal

16 government, the department shall have the right to recover the medical

17 assistance it paid from any amounts that the person has received or may

10 receive from or on behalf of the third party. When, with the consent of

19 the department, an action or claim Is brought by the person alone and the

20 person incurs or will incur a personal liability to pay attorney's fees

21 and costs of litigation or costs incurred in pursuit of a claim, to the

22 fullest extent permitted by federal law and understandings entered into

23 between the state and federal government, the department's claim for

24 reimbursement of the medical assistance provided to the person shall be

25 reduced by twenty-five percent of the full amount of the Judgment, award,

26 or settlement, which the person may retain, though otherwise subject to

27 applicable law including but not limited to eligibility criteria, and a

28 pro rata share that represents the department's reasonable share of

29 attorney's fees paid by the person and that portion of the costs of

30 litigation or the costs incurred in pursuit of a claim determined by

31 multiplying the amount of the costs of litigation or the costs incurred

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1 in pursuit of a claim by the ratio of the full amount of benefit

2 expenditures made by the department to or on behalf of the person to the

3 full amount of the judgment, award, or settlement. The department may not

4 unreasonably withhold consent to the bringing of such action or claim.

5 The department shall determine whether or not to grant such consent

6 within thirty days after the consent is requested. If the department

7 fails to make a determination within the thirty-day period, such consent

8 shall be deemed to have been granted.

9 (8) The department may adopt and promulgate rules and regulations to

10 carry out this section.

11 f9) The chanoes made to this section bv this leolslatlve hill shall

12 aonlv retroactively to August 38. 2015.


14 amended to read:

15 68-989 (1) This section shall apply to the fullest extent permitted

18 by federal law and understandings entered into between the state and the

17 federal government. An applicant for medical assistance, or a person

18 acting on behalf of the applicant, shall disclose at the time of

19 application and, to the extent not owned at the time of application, at

20 the time of any subsequent review of the applicant's eligibility for

21 medical assistance all of his or her interests and the interests of his

22 or her spouse. if any, in any assets, including, but not limited to, any

23 security, bank account, intellectual property right, contractual or lease

24 right, real estate, trust, corporation, limited liability company, or

25 other entityi whothor cuoh intoroct io diroot or indirect i—voctod or

26 contingent, or othondco. The applicant or a person acting on behalf of

27 the applicant shall also disclose anv i (a) Any income derived from such

28 interests and the source of the incomej. t and

29 (b) Whothor tho inoowo to-gonofot-od directly or indirootly from (i)

38 tho-appiicaBb^o-cpoucG or an individual who io rolatod to the applicant

31 oo-dooof4bod in oootion 77-a86< or 77 2996 or (ii) on entity oontroUod

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1 by one or more individualo doceribod in cubdivioion (a)(b)(i) of thic

2 oootion.—For purpococ of thio oubdiwioion,—control moano individualo

3 liotod in oubdivioion (l)(b)(i) of thio oootion togothor own or have tho

4 option to ooquiro more than fifty poroont of tho ontity.

5 (2) If the applicant or a person acting on behalf of the applicant

6 willfully fails to make the disclosures required in this section, any

7 medical assistance obtained as a result of such failure is deemed

8 unlawfully obtained and the department shall seek recovery of such

9 medical assistance from the applicant or the estate of the recipient of

16 medical assistance as defined in subdivision (4)(b) of section 68-919.

11 48)—If inoomo io derived from a related party ao dooof^ibod—in

12 oubdiwioion—(a)(b)—of—Chio—oootion;—the—department oholi—dotormino

13 whothor tho inoomo—io—ot;—in tho oaoo of a written loaoo, whothor tho

14 tormo of tho loaoo at tho time it wao entered into wore oommoroially

roaeenabio and ooncictont with inoomo or ioaco termo derived in tho

relevant market area and nogotiatod at armo length botwoon partioo who

ore not related. If tho dopartmont-dotorminoo that tho inoomo or loaoo

failo to moot—thooo roquiromonto, ouoh—inoomo or—ioaco chall—be

oonoidorod a tranofor of tho applioant'c acootc for loco—than fuii

oonoidoration and tho department—oball—oonoidor tho rooulting-ohontfallr

eligibility for modioal aooiotanoo or any oharo of ooot or ao othorwico

required by law. Tho burden of proof of oommoroial roaoonabloHooc rosto

k4th—tho—appiioant-.—The—department'c—determination on oommoroial

noaoonablonoco may bo oppoalod, and tho appeal ohall bo in aooordanoo

with the Adminictrativo Preoedwro Act.

f3^ 44). An action for recovery of medical assistance obtained in

violation of this section may be brought by the department against the

applicant or against the estate of the recipient of medical assistance as

defined in subdivision (4)(b) of section 68-919 at any time before five

years after the death of both the applicant and the applicant's spouse.

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1 if any.

2 4^ The department may adopt and promulgate rules and

3 regulations to carry out this section. Tho ruloo and rogulotionc may

4 inoludo guidanoo-on tho oowiiorolol roaoonablonocn of loooo tormoi

5 fS) The changes made to this section bv this leoislative bill shall

6 analv retroactively to August 24. 2017.


B amended to read:

9 68-990 (1) For purposes of this section:

10 (a) Related transferee means:

U (i) An individual who is related to the transferor as described in

12 section 77-2884 or 77-2885;

13 (ii) An entity controlled by one or more individuals described in

14 subdivision (l)(a)(i) of this section. For purposes of this subdivision,

15 control means individuals described in subdivision (l)(a)(i) of this

16 section together own or have the option to aoquire more than fifty

17 percent of the entity; or

18 (iii) An irrevocable trust in which an individual described in

19 subdivision (l}(a)(i} of this section is a beneficiary; and

28 (b) Related transferee does not include the recipient's spouse, if

21 any, or a child who either is under twenty-one years of age or is blind

22 or totally and permanently disabled as defined by Supplemental Security

23 Income criteria.

24 (2) This section shall apply to the fullest extent permitted by

25 federal law and understandings entered into between the state and the

26 federal government. This section provides security for the recovery of

27 the indebtedness to the department for medical assistance as provided in

28 section 68-919. This section applies to transfers of real estate made on

29 or after August 24, 2817. If, during the transferor's lifetime, an

38 interest in real estate is irrevocably transferred to a related

31 transferee for less than full consideration and the real estate

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1 transferred to the related transferee is subject to rights, actual or

2 constructive possession, or powers retained by the transferor in a deed

3 or other instrument, the interest in the real estate when acquired by the

4 related transferee is subject to a lien in favor of the State of Nebraska

5 for medical assistance reimbursement pursuant to section 68-919 to the

6 extent neoessary to secure payment in full of any claim remaining unpaid

7 after application of the assets of the transferor's probate estate, not

8 to exceed the amount determined under subsection (6) of this section. The

9 lien does not attach to any interest retained by the transferor. Except

18 as provided in this section, the lien applies to medical assistance

11 provided before, at the same time as, or after the filing of the notice

12 of lien under subsection (4) of this section.

13 (3) Within fifteen days after receipt of a statement required by

14 section 76-214 indicating that the underlying real estate transfer was

15 between relatives or, if to a trustee, where the trustor or settlor and

16 the beneficiary are relatives, the register of deeds shall send a copy of

17 such statement, together with the parcel identification number, if

18 ascertainable, to the department. The copy shall be provided to the

19 department in a delivery manner and at an address designated by the

28 department, which manner may include email. The department shall post the

21 acceptable manner of delivering the copy on its web site or otherwise

22 communicate the manner of delivery to the registers of deeds.

23 (4) The lien imposed by subsection (2) of this section becomes

24 effective upon the filing of a notice of lien in accordance with this

25 subsection. The department may file a notice of the lien imposed by

26 subsection (2) of this section only after the department receives an

27 application for medical assistance on behalf of a transferor. The notice

28 must be filed in the office of the register of deeds of the county or

29 counties in which the real estate subject to the lien is located. The

38 notice must provide the legal description of the real estate subject to

31 the lien, specify the amount then secured by the lien, and indicate that

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1 the lien also covers any future medical assistance provided to the

2 transferor. The department shall provide the register of deeds vd.th a

3 self-addressed return envelope bearing sufficient postage for purposes of

4 returning to the department a file-stamped copy of the notice of lien,

5 which the register of deeds shall mail to the department. The lien is not

6 valid against the owner of an interest in real estate received by a

7 grantee who is not a related transferee pursuant to a deed or other

8 instrument if such deed or other instrument is filed prior to the notice

9 of lien. A lien that is not valid under this subsection shall be released

19 by the department upon notice thereof from such grantee or a subsequent

11 bona fide purchaser. A lien is valid against any subsequent creditor only

12 if notice of such lien has been filed by the department in accordance

13 with this subsection. Any mortgage or trust deed recorded prior to the

14 filing of a notice of lien shall have priority over such lien. Except as

15 provided in subsection (5) of this section, any optional future advance

16 or advance necessary to protect the security secured by the mortgage or

17 trust deed shall have the same priority as the mortgage or trust deed.

19 (5) Any optional future advance made pursuant to a mortgage or trust

19 deed on real estate recorded prior to the filing of a notice of lien

29 under subsection (4) of this section shall be junior to such lien only if

21 the optional future advance is made after:

22 (a) A notice of lien has been filed by the department in accordance

23 with subsection (4) of this section; and

24 (b) Written notice of the filing for record of such notice of lien

25 has been received by the mortgagee or beneficiary at the address of the

26 mortgagee or beneficiary set forth in the mortgage or trust deed or, if

27 the mortgage or trust deed has been assigned, by the assignee at the

28 address of the most recent assignee reflected in a recorded assignment of

29 the mortgage or trust deed. The notice under this subdivision shall be

39 sent by the department by certified mail to the applicable mortgagee,

31 beneficiary, or assignee.

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1 (6) (a) The lien authorized in this section is limited to the lesser

2 of (i) the amount necessary to fully satisfy any reimbursement

3 obligations remaining unpaid after application of any assets from the

4 transferor's probate estate or (ii) the actual value of the real estate

5 at the time that the lien is enforced minus the consideration adjustment

6 and minus the cost of the improvements made to the real estate by or on

7 behalf of the related transferee, if any.

8 (b) For purposes of this subsection:

9 (i) Actual value has the same meaning as in section 77-112;

19 (ii) Consideration adjustment means the amount of consideration paid

11 by the related transferee to the transferor for the real estate

12 multiplied by the growth factor; and

13 (iii) Growth factor means the actual value of the real estate at the

14 time the lien is enforced divided by the actual value of the real estate

15 at the time the consideration was paid.

16 (c) The burden of proof for showing the consideration paid for the

17 real estate, the cost of any improvements to the real estate, and the

18 actual value of the real estate rests with the related transferee or his

19 or her successor in interest.

29 (7) If a deed or other Instrument transferring an interest in real

21 estate contains a recital acknowledged by the grantor stating that the

22 grantee is not a related transferee, the real estate being transferred

23 shall not be subject to the lien imposed by this section. A related

24 transferee who takes possession or otherwise enjoys the benefits of the

25 transfer knowing the recital is false becomes personally liable for

26 medical assistance reimbursement to the extent necessary to discharge any

27 claim remaining unpaid after application of the assets of the

28 transferor's probate estate, not to exceed the amount determined under

29 subsection (6) of this section.

39 (8) The department shall release or subordinate the lien authorized

31 in this section upon application by the related transferee in which the

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1 related transferee agrees to indemnify the department for medical

2 assistance reimbursement pursuant to section 68-919 to the extent

3 necessary to discharge any such claim remaining unpaid after application

4 of the assets of the transferor's probate estate, not to exceed the

5 amount determined under subsection (6) of this section. The department

6 may require the application submitted pursuant to this subsection to be

7 accompanied by good and sufficient sureties or other evidence determined

8 by the department to be sufficient to secure the liability. The

9 department shall also release the lien upon a satisfactory showing of

19 undue hardship or a showing that the interest subject to the lien is not

11 one from which medical assistance reimbursement may be had.

12 (9)(o) Any indemnity and any lien shall be released upon:

13 (i) Notice delivered to the department, by certified mail, return

14 receipt requested, of (A) the death and identification, including the

15 social security number, of the transferor, (B) the legal description of

16 the real estate subject to the indemnity or lien, and (C) the names and

17 addresses of the owners of record of the real estate; and

IB (ii) The department either (A) filing a release of lien with the

19 register of deeds of the county or counties in which the real estate

26 subject to the lien is located or (B) not filing an action to foreclose

21 the lien or collect on the indemnity within one year after delivery of

22 the notice required under subdivision (9)(a)(i) of this section.

23 (b) Proof of delivery of such notice shall be made by filing a copy

24 of the notice and a copy of the certified mail return receipt with the

25 register of deeds of the county or counties in which the real estate

26 subject to the lien is located.

27 (18) The department may adopt and promulgate rules and regulations

28 to carry out this section.

29 fill This section is null and void as of Auoust 24. 2817.


31 amended to read:

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1 71-685 (1) The funeral director and embalmer in charge of the

2 funeral of any person dying in the State of Nebraska shall cause a

3 certificate of death to be filled out with all the particulars contained

4 in the standard form adopted and promulgated by the department. Such

5 standard form shall include a space for veteran status and the period of

6 service in the armed forces of the United States and a statement of the

7 cause of death made by a person holding a valid license as a physician,

8 physician assistant, or nurse practitioner who last attended the

9 deceased. The standard form shall also include the deceased's social

18 security number and a notice that, pursuant to section 38-2413, demands

11 for notice which may affect the estate of the deceased are filed with the

12 county court in the county where the decedent resided at the time of

13 death. Death and fetal death certificates shall be completed by the

14 funeral directors and embalmers and physicians, physician assistants, or

15 nurse practitioners for the purpose of filing with the department and

18 providing child support enforcement information pursuant to section

17 43-3348.

18 (2) The physician, physician assistant, or nurse practitioner shall

19 have the responsibility and duty to complete and sign by electronic means

28 pursuant to section 7i-6e3.81, within twenty-four hours from the time of

21 death, that part of the certificate of death entitled medical certificate

22 of death. In the case of a death when no person licensed as a physician,

23 physician assistant, or nurse practitioner was in attendance, the funeral

24 director and embalmer shall refer the case to the county attorney who

25 shall have the responsibility and duty to complete and sign the death

26 certificate by electronic means pursuant to section 71-683.81.

27 No cause of death shall be certified in the case of the sudden and

28 unexpected death of a child between the ages of one week and three years

29 until an autopsy is performed at county expense by a queilified

38 pathologist pursuant to section 23-1824. The parents or guardian shall be

31 notified of the results of the autopsy by their physician, physician

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1 assistant, nurse practitioner, conmunity health official, or county

2 coroner within forty-eight hours. The term sudden infant death syndrome

3 shall be entered on the death certificate as the principal cause of death

4 when the term is appropriately descriptive of the pathology findings and

5 circumstances surrounding the death of a child.

6 If the circumstances show it possible that death was caused by

7 neglect, violence, or any unlawful means, the case shall be referred to

8 the county attorney for investigation and certification. The county

9 attorney shall, within twenty-four hours after taking charge of the case,

18 state the cause of death as ascertained, giving as far as possible the

11 means or instrument which produced the death. All death certificates

12 shall show clearly the cause, disease, or sequence of causes ending in

13 death. If the cause of death cannot be determined within the period of

14 time stated above, the death certificate shall be filed to establish the

15 fact of death. As soon as possible thereafter, and not more than six

16 weeks later, supplemental information as to the cause, disease, or

17 sequence of causes ending in death shall be filed with the department to

18 complete the record. For all certificates stated in terms that are

19 indefinite, insufficient, or unsatisfactory for classification, inquiry

28 shall be made to the person completing the certificate to secure the

21 necessary information to correct or complete the record.

22 (3) A completed death certificate shall be filed with the department

23 within five business days after the date of death. If it is impossible to

24 complete the certificate of death within five business days, the funeral

25 director and embalmer shall notify the department of the reason for the

26 delay and file the certificate as soon as possible.. Within ton dayo after

27 tho filing of tho oortlfioato of death and prior to the ioouanoo of any

28 oortifiod-oopioo-of tho cortifioate of doathi the iktport-moftt ehall oeafett

29 ito rooordo to determine if the deoonood had applied for or rooeivod

38 medical accictanQO under tho Modical AcoictancQ Aoti If the docoaBod made

31 cuoh applioation or—rooeivod—eueh—noolctoROOi tho dopartwont ohallr

-29-

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2819

1 boforo or oontomporanooucly with tho iccuanoe of tho firot certified copy

2 of tho Gortifioato of doathi file a demand for notioo-pufouant to cootion

3 89 a<l8 in the eeunty court of tho oounty in whioh tho dooodont wac

4 domio*lod-at—tlw)-timo of doathi Tho dopartmont oholl annually report tho

5 following to tho bogiclatMroi

6 (a) Tho number of domando for notioo filed purouant to thio oootion>

7 and

8 (b) Tho numbor of timoc in tho prior yoar that tho timo botwoon a

9 requoGt for a oertifiod-oopy of tho-ooftitf-ioato of donth and the mailing

18 of cuoh oertifioota-oiH)oedod-twoHty one doyoi

11 (4) Before any dead human body may be cremated, a cremation permit

12 shall first be signed electronically by the county attorney, or by his or

13 her authorized representative as designated by the county attorney in

14 writing, of the county in which the death occurred on an electronic form

15 prescribed and furnished by the department.

16 (5) A permit for disinterment shall be required prior to

17 disinterment of a dead human body. The permit shall be issued by the

18 department to a licensed funeral director and embalmer upon proper

19 application. The request for disinterment shall be made by the person

28 listed in section 38-2223 or a county attorney on a form furnished by the

21 department. The application shall be signed by the funeral director and

22 embalmer who will be directly supervising the disinterment. when the

23 disinterment occurs, the funeral director and embalmer shall sign the

24 permit giving the date of disinterment and file the permit with the

25 department within ten days of the disinterment.

26 (6) When a request is made under subsection (5) of this section for

27 the disinterment of more than one dead human body, an order from a court

28 of competent jurisdiction shall be submitted to the department prior to

29 the issuance of a permit for disinterment. The order shall include, but

38 not be limited to, the number of bodies to be disinterred if that number

31 can be ascertained, the method and details of transportation of the

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1 disinterred bodies, the place of reinterment, and the reason for

2 disinterment. No sexton or other person in charge of a cemetery shall

3 allow the disinterment of a body without first receiving from the

4 department a disinterment permit properly completed.

5 (7) No dead human body shall be removed from the state for final

6 disposition without a transit permit issued by the funeral director and

7 embalmer having charge of the body in Nebraska, except that when the

8 death is subject to investigation, the transit permit shall not be issued

0 by the funeral director and embalmer without authorization of the county

18 attorney of the county in which the death occurred. No agent of any

11 transportation company shall allow the shipment of any body without the

12 properly completed transit permit prepared in duplicate.

13 (8) The interment, disinterment, or reinterment of a dead human body

14 shall be performed under the direct supervision of a licensed funeral

15 director and embalmer, except that hospital disposition may be made of

16 the remains of a child born dead pursuant to section 71-28,121.

17 (0) All transit permits issued in accordance with the law of the

18 place where the death occurred in a state other than Nebraska shall be

10 signed by the funeral director and embalmer in charge of burial and

28 forwarded to the department within five business days after the interment

21 takes place.

22 flB) The changes made to this section bv this leolslatlve bill shall

23 aoolv retroactivelv to Auoust 24. 2B17.

24 Sec. 18. Section 77-2818.82, Reissue Revised Statutes of Nebraska,

25 is amended to read;

26 77-2818.82 (1) In the absence of any proceeding brought under

27 Chapter 38, article 24 or 25, in this state, proceedings for the

28 determination of the tax may be instituted in the county court of the

20 county where the property or any part thereof which might be subject to

38 tax is situated.

31 (2) Upon the filing of the petition referred to in subsection (l) of

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1 this section, the county court shall order the petition set for hearing,

2 not less than two nor more than four weeks after the date of filing the

3 petition, and shall cause notice thereof to be given to all persons

4 interested in the estate of the deceased and the property described in

5 the petition, except as provided in subsections (4) and (5) of this

8 section, in the manner provided for in subsection (3) of this section.

7 (3) The notice, provided for by subsection (2) of this section,

8 shall be given by one publication in a legal newspaper of the county or,

0 in the absence of such legal newspaper, then in a legal newspaper of some

18 adjoining county of general circulation in the county. In addition to

u such publication of notice, personal service of notice of the hearing

12 shall be had upon the county attorney of each county in which the

13 property described in the petition is located, at least one week prior to

14 the hearing.

15 (4) If it appears to the county court, upon the filing of the

16 petition, by any person other than the county attorney, that no

17 assessment of inheritance tax could result, it shall forthwith enter

18 thereon an order directing the county attorney to show cause, within one

19 week from the service thereof, why determination should not be made that

28 no inheritance tax is due on account of the property described in the

21 petition and the potential lien thereof on such property extinguished.

22 Upon service of such order to show cause and failure of such showing by

23 the county attorney, notice of such hearing by publication shall be

24 dispensed with, and the petitioner shall be entitled without delay to a

25 determination of no tax due on account of the property described in the

26 petition, and any potential lien shall be extinguished.

27 (5) If it appears to the county court that (a) the county attorney

28 of each county in which the property described in the petition is located

20 has executed a waiver of notice upon him or her to show cause, or of the

38 time and place of hearing, and has entered a voluntary appearance in such

31 proceeding in behalf of the county and the State of Nebraska, and (b)

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1 either (i) all persons against whom an inheritance tax nay be assessed

2 are either a petitioner or have executed a waiver of notice upon then to

3 show cause, or of the time and place of hearing, and have entered a

4 voluntary appearance, or (ii) a party to the proceeding has agreed to pay

5 to the proper counties the full inheritance tax so determined, the court

6 nay dispense with the notice provided for in subsections (2) and (3) of

7 this section and proceed without delay to make a determination of

8 inheritance tax, if any, due on account of the property described in the

9 petition.

10 (6) If the decedent was fifty-five years of age or older or resided

11 in a medical institution as defined in subsection (l) of section 68-919,

12 a notice of the filing of the petition referred to in subsection (1) of

13 this section shall be provided to the Department of Health and Human

14 Services with the decedent's social security number and, if the decedent

15 was predeceased by a spouse, the name and social security number of such

16 spouse. A certificate of the providing of the notice to the department

17 shall be filed in the inheritance tax proceedings by an attorney for the

18 petitioner or, if there is no attorney, by the petitioner, prior to the

19 entry of an order pursuant to this section. The notice shall be provided

20 to the department in a delivery manner and at an address designated by

21 the department, which manner may include email. The department shall post

22 the acceptable manner of delivering notice on its web site. Any notice

23 that fails to conform with such manner is void and oonotitutoo noithor

24 notioo to the department nor a waiver application for purpoooo of any

25 otatutoor regulation that roquiroo that a notioo or waiver application

26 bo prewided to tho-dopant4iioBt-.

27 Sec. 11. Original sections 68-919, 68-989, 68-998, 71-665, and

28 77-2618.02, Reissue Revised Statutes of Nebraska, and sections 38-2483,

29 38-3888, 38-3881, 38-3882, and 33-109, Revised Statutes Cumulative

30 Supplement, 2818, are repealed.

31 Sec. 12. Since an emergency exists, this act takes effect when

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1 passed and approved according to law.

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1

Now Your Aunt Wants a Will

Christin P. Lovegrove, Attorney

Heinisch & Lovegrove Law Office, PC LLO

[email protected]

Estate Planning Tips Every Lawyer Should Know

DisclosureThis presentation and materials are intended to present a general overview and options regarding estate, business and succession planning and are not intended as legal advice.

Every client and situation requires individual research and a unique approach.

Initial Client Contact & Meeting

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Pre-Meeting

What information do you need to be prepared for the meeting?

What can the client do to prepare themselves for the meeting?

Evaluating Your Experience and Knowledge

Pre-Meeting

• Public record search

• Google

• Check office files

• Conflicts

• Referral

• Prior Representation

Evaluation of Ability

• Honest review of skills and experience

• Prior experience with asset base

• Knowledge of laws, regs and tax consequences

“

”

Imitation is the sincerest form of flattery.

Except in estate and business succession planning!

Every family is different, every situation is different, every business has it’s own intricacies. Just because it is the right plan for their neighbor, their sibling, or the guy the read about in the

magazine, doesn’t mean that it is the right plan for your client.

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5

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Issues & Concerns

Tax v Non-Tax Reasons for Estate Planning

Rational or Emotional Motivation?

Distribution of Assets

Minimization of Expenses & Taxes

Comfort & Security

Underlying Reasons

Client Sophistication

Familiarity with estate planning process, terms and options

Level of decision-making by clients

Ability to follow through

Ability to understand and explain

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Probate v. Non-Probate Assets

Prevalence of Non-Probate Assets

Issues of Administration

Issues of Distribution and Timing

Relationship with other Estate Planning

Formulating a Plan for the Client

The Exemption Amount

2019• $11.4 Million (indexed for inflation)

• Includes portability

• Set to revert back in 2026 to $5.49MM indexed for inflation

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What is Portability?

• Portability is the ability of a married couple to combine the federal estate tax exemption. If a spouse dies under the limit, the “extra” amount between the value of the assets can “port” to the spouse to be combined with their limit.

• Essentially, it helps make sure a married couple can utilize the exemption amount doubled to get assets to the next generation without paying federal estate tax.

Portability & Malpractice

• Failure to make election

• Statute of Limitations

• Valuation on the 706

• Past Documentation

• Addressing the Cost Burden

Portability and its Impact

• Fewer individuals will need to file Federal Estate Tax returns and even fewer will owe taxes

• Less use of separate trust documents for spouses, instead using joint trusts

• Important to consider the factors for credit shelter planning (pg 6 in material) and the factors for portability planning (pg 7 in material)

• Estate Planning is now focused on income tax planning (not federal estate tax planning) and creating a business succession plan that works

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The Use of Trusts

• Factors: length of control, probate avoidance, asset level, need for privacy, age of clients/beneficiaries and their needs, client sophistication, etc.

• Requires attention to income timing, expenses and distributions

• Where does the responsibility of the attorney end? What is the attorney required to do to ensure grantor/settlor or successor trustee does things correctly?

• Creation v administration

• Administration v termination

Medicaid Planning & Eligibility

• Life Estates and LB593 (2019) – see page 8 of materials

• Trusts as disqualifying resources:

• Any circumstance test, irrevocable or revocable

• SNTs and discretionary third-party trusts or support third-party trusts

• Miller Trusts

• Bottom line: do not rely on any type of self-settled trust to be a non-countable asset for Medicaid purposes

Three Aspects of a Good Estate Plan

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The Clients Understand It

• Well organized

• Written in plain English

• Easy to follow

Personalized for Each Client

• Specific needs for each client

• Avoid the regenerated template

• Is what is drafted necessary? Effective?

• Were the individuals selected to play roles in the estate plan carefully discussed and determined?

Coordinated

• Do the clients understand and appreciate the next steps?

• Beneficiary designations

• Titling of accounts and assets

• Non-probate designation review

• Deliberate Planning and Consistency

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Questions? Contact me anytime at

[email protected]

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