New York Elder Law Attorney Blog

February 20, 2019

What your Estate Plan Should Include

Having a well through out, defined estate plan is one of the most important things we can do for ourselves and our families during our life. Without an estate plan, your assets may be thrown into the uncertainty of probate court and legal challenges from interested parties that may feel they are somehow owed part of your estate. Those are just some of the very good reasons to have an estate plan and one that includes more than just a last will and testament.

For starters, an estate plan should include a revocable or “living trust” to pass assets onto friends and family while avoiding probate. Sometimes referred to as an “inter vivos” trust, it is a legal document through which assets are placed into a trust for your benefit during your lifetime and then transferred to designated beneficiaries at your death by your chosen representative, called a “successor trustee.” They are called revocable living trusts because they can be amended at any time and are created during the grantor’s lifetime.

Next, your estate plan will require a last will and testament to pass on any personal or sentimental items not covered by the trust. The will can also give specific instructions for when and how these assets are to be disbursed as well as give surviving family members clear burial instructions and otherwise pass on any other sentiments that are wished to be expressed.

February 17, 2019

Nearly Half of Americans Over 55 Have No Will or Estate Plan

by Ettinger Law Firm

A recent study by Merrill Lynch and Age Wave found that almost half of Americans over 55, have no idea what will happen to their assets when they die because they don’t have an estate plan or will. People often put off planning their estate because they are not ready to contemplate their morality or to make the difficult decisions about their medical care and treatment in the event of incapacity because of a mental or physical disability. The subject is difficult. However, without an estate plan your family is in for a rough ride.

The study identified stumbling blocks that prevent people from creating a will or engaging in estate planning include:

Spouses with children cannot agree on who should be appointed guardian in the event of their death.

February 13, 2019

The Life-Changing Magic of Planning Your Estate

by Ettinger Law Firm

Marie Kondo, an organizing consultant, has taken the world by storm with her two-step approach to tidying up in her best-selling book, The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing. First, she encourages people to one-by-one hold in their hands everything they own. Once in their hands, people should ask themselves if the item sparks joy. If it doesn’t, Kondo’s approach thanks the item for its service and then puts it in a trash pile. Second, once people identify which of their possessions gives them joy, they should place it in a visible and accessible place. Only then, will adherents to this method, experience the magic of tidying up once and for all.

We thought about this concept and how it can be used to help plan an estate. Planning an estate is a hard and uncomfortable process. It asks you to contemplate your mortality. At the end of the process you have not thrown anything out, but simply begun a process to transfer one of your possessions to someone else. While your family and friends may have a joyful reaction to receiving your beloved cabin home in Maine, that joy will be sparked by your own death. What follows are lessons we learned when we applied Kondo’s tidying up approach to estate planning.

Step One: A proper estate plan will determine what will happen to your property and how your assets will be distributed in the event of your death. It will also consider how decisions will be made regarding your medical care and treatment and finances in the event of mental or physical incapacitation. With the former, you will need to clearly articulate your wishes about your medical care. With the later, one by one, you will need to consider your property and assets and determine what will happen to it when you die. Gifts can be made to family members, friends, charitable organizations, and other testamentary instruments, like a trust.

February 9, 2019

Estate Administration Disputes

by Ettinger Law Firm

Family disputes often arise in the estate administration process. Especially if there is money at stake, a disgruntled family member or other interested person may be unhappy with his or her inheritance, or lack thereof. A personal representative of an estate or trust may be forced to deal with a challenge brought by one of them.

When the estate itself is illiquid, difficulties arise that when challenged often mean less is available for distribution when the dispute is ultimately resolved because of the simple fact that the asset cannot be divided but instead must be sold to be distributed. The sale and challenge are an additional cost that gets paid by the estate before an asset can be distributed. When an estate plan (a will or a trust) is challenged, the three most common reasons are listed below.

A challenge to the validity of the estate planning documents is often initiated by a disinherited family member or someone who believes, rightly or wrongly, that they are receiving less than what was gifted. A challenge to the administration of the estate or trust is really a complaint against how the personal representative is handling the administration of the estate. Usually in these scenarios, an interested party alleges that the personal representative is not doing his or her job, is using the estate or trust assets for the personal representative’s own benefit, or is acting against the beneficiaries’ best interests. The third scenario is a challenge to both the validity and the administration of the estate or trust.

February 6, 2019

Death and Your Digital Identity

by Ettinger Law Firm

What happens to online accounts when you die? Digital identity is defined broadly and may include a person’s email accounts, online financial accounts, cloud accounts, digital music accounts, blogs, social networking identities, and digital files. Digital files are not limited to data files but also include photos, audio, and video files.

Your digital identity is oftentimes in the hands of others. While you feed information about yourself to others on social media sites like Facebook and Instagram, the mobile apps and online platforms own the information, pictures, audio, and video files with you and can continue to maintain your profiles and use your digital files, even if you die.

Many digital files cannot be gifted to family members or other persons because only the deceased person has the unlimited right to access and use these items because they own a license permitting them to do so. On their death however, the license is terminated. For example, in the past your father could gift you his physical record collection upon his death. The albums are transferrable, and the owner is the person who physically possesses the items. If your father however converted those physical albums into digital files and threw out the albums when he was done, he cannot gift the digital files to anyone because he does not own the digital right to transfer the audio files, even if the digital collection is a mirror image of his physical or hard album collection.

February 1, 2019

Aging in Place Through Continuing Care Retirement Communities

by Ettinger Law Firm

Entering into a nursing home or other residential skilled care facility can be hard enough on a beloved older family member without having to worry about having to leave that facility and moved into another one. Unfortunately, this is a reality all too many seniors face these days as nursing homes do not always make guarantees about being able to offer the type of care the individual needs to live a comfortable, dignified life.

Fortunately, Continuing Care Retirement Communities (CCRC) are able to guarantee residents a lifelong place to live without having to worry about transfering to a new and unfamiliar environment due to factors outside of his or her control. CCRCs offer the entire residential continuum, from independent housing to assisted living to round-the-clock nursing services, under one roof to allow residents to remain in place and create a stable living environment.

These types of arrangements allow residents to age in place and typically work by having the individual pay a an entry fee and an adjustable monthly rent in return for the guarantee of care for the rest of their life. CCRCs also maintain an assortment of on site medical and social services which allow residents to live in one part of the community while in good health and then transfer to another part of the community better equipped to handle lifestyle and health changes.

January 29, 2019

NY Elder Law Estate Planning: Alternatives to Nursing Home Care

by Ettinger Law Firm

One of the biggest anxieties many Americans may face is entering into a nursing home or other skilled residential care facility at some point in their lives. Not only does residency in a nursing home mean less autonomy, but also potentially pay a tremendous financial price. Depending on the location, living in a nursing home can cost between $60,000 and $300,000 a year, with the median being $97,455 a year for a private room.

Not surprisingly, studies show that most older Americans prefer to remain in their own homes as long as possible and this results in a lot of care being delivered by skilled professionals and family members in the patient’s home. As a result, these caretakers often shoulder the greatest burdens for the patient such as transportation, meal prepping, and household chores, which can quickly monopolize someone’s time.

As a result, families need to be considerate to one individual who may be spending more of his or her time helping to take care of the elder than others and whether his person is properly compensated for all the hard work that goes into that. Furthermore, what may seem like a fair and equitable division of responsibilities at the present can end up anything but in a a few years or even months when major life events happen.

January 27, 2019

Centers for Medicare and Medicaid Studies Issue Guidance to States on Service

by Ettinger Law Firm

The Centers for Medicare & Medicaid Services (CMS) recently released a “Dear State Medicaid Director” letter highlighting ten opportunities for states to better serve individuals dually eligible for Medicare both and Medicaid. The letter states that these these opportunities are newly available to states through Medicare rulemaking or other CMS burden reduction efforts and can be used to help better the lives of an estimated 12 million Americans dually eligible for Medicare and Medicaid.

Medicaid is an important source of medical coverage for individuals dually qualified Medicare beneficiaries as the former covers services the latter does not, such as long term care in nursing homes or assisted living facilities. Additionally, Medicaid aids in cost reduction for Medicare by helping pay Medicare premiums and cost-sharing, which may be high for low income individuals.

The outlines in the letter include new developments in managed care, using Medicare data to inform care coordination and program integrity initiatives, and reducing administrative burden for dually eligible individuals and the providers who serve them. Many advocacy groups have welcomed CMS’s efforts to forge closer ties with state administrators to improve the Medicare Part A Buy-in Program and simplify the eligibility and enrollment processes for Medicare Savings Programs.

January 21, 2019

IRS Issues Notice on ABLE Accounts

by Ettinger Law Firm

The Internal Revenue Service recently issued a notice to people with disabilities who are employed that for the first time they can now deposit extra money into their ABLE accounts without losing Social Security, Medicaid, or other government benefits. Annual contributions to ABLE accounts are currently capped at $15,000 but under new legislation passed in late 2017 individuals with disabilities who are employed may now accrue at least some of their wages as well.

This year, Americans living in the lower 48 states may now deposit an additional $12,140 from their income which means workers with disabilities are allowed to save up to $27,140 in their ABLE account in 2018. Hawaii residents can save an additional $13,390 and Alaska residents can save an additional $15,180, according to the release put out by the IRS this month.

Additionally, the IRS has announced that workers with disabilities and an ABLE account may now qualify for a Saver’s Credit to help reduce their federal tax bill. Formerly known as the Retirement Savings Contributions Credit, the Saver’s Credit gives special tax breaks to low and moderate income taxpayers saving for retirement. The Saver’s Credit can be taken for contributions to a traditional or Roth IRA, a 401(k), SIMPLE IRA, SARSEP, 403(b), 501(c)(18) or governmental 457(b) plan.

January 17, 2019

Study Shows MRI could Detect Early Signs of Dementia in Patients

by Ettinger Law Firm

A recent study conducted by Washington University School of Medicine in St. Louis and the University of California San Francisco suggests that magnetic radial imaging (MRI) could detect the early stages of dementia up to three-years before it occurs in some patients. The modestly sized study predicted with 89 percent accuracy who would go on to develop dementia within three years.

Presented at the Radiological Society of North America meeting in Chicago, the findings suggest that physicians may soon be able to use widely available diagnostics to inform patients about their risk of developing dementia before symptoms present themselves. MRI brain scans are widely available in most hospitals and give doctors insight to the patient’s brain. The researchers in this study used a technique called diffusion tensor imaging to assess the health of the brain’s white matter, which encompasses the cables that enable different parts of the brain to communicate with each other.

“Diffusion tensor imaging is a way of measuring the movement of water molecules along white matter tracts,” said ead author Cyrus A. Raji in a media interview. “If water molecules are not moving normally it suggests underlying damage to white tracts that can underlie problems with cognition.” Researchers discovered that patients who eventually experienced cognitive declines showed significantly more damage to the white matter of their brains.