New York Elder Law Attorney Blog

July 14, 2017

Settling Trust Debts Before Distributing Assets

Creating a living trust is an excellent way to avoid having assets pass through probate courts and create showdowns for potentially messy challenges brought by individuals claiming to be “interested parties” to the estate. However, even living trusts must still settle up on certain types of debts incurred against the estate by the deceased. If you or a close friend or family member are named as a trustee, you should take some time to understand the estate laws governing these and other estate concerns.

First, it is important to know that not all debts expire upon the passing of the trust’s creator. For example, federal student loans are discharged upon the debtor’s passing but private student loans may not be vacated. Furthermore, debts held by two or more persons may not be discharged and the surviving debtor may carry the remainder of the responsibility.

Second, unlike estates handled by a last will and testament, public notices to creditors are not posted in the media. Again, this is because the estate does not pass through probate court. Instead, the trustee will need to contact known creditors and inform these entities of the trust maker’s passing. By informing known creditors right away, these entities only have a limited time to recover debts from the estate and the debt may be discharged should these creditors fail to act in a timely manner.

July 11, 2017

What you Need to Know About New York Estate Taxes

by Ettinger Law Firm

While many believe estate taxes only hamper the financial activity of very wealthy people, the truth is even middle class individuals can be subject to the burdens of state and federal estate taxes. For example, if you spent your whole life building a small business, the value of that asset can exceed the estate tax threshold easily by virtue of the real estate’s value alone.

For many years, New York’s estate tax lagged behind the federal threshold. Currently, the federal estate tax threshold is $5.49 million while New York’s state exemption is $5.25 million. New York’s inheritance tax exemption will continue to climb until 2019, at which point the amount will match whatever the federal threshold becomes. The change came about thanks to legislation signed by Gov. Andrew Cuomo in March 2014.

One key difference between New York and federal tax laws relates to what is commonly called the “tax cliff.” Under federal and many other state taxation laws, only the amount of the estate exceeding the tax threshold would be subject to tax. For example, if an individual left behind an estate worth $6 million, only the $501,000 exceeding the threshold would be subject to federal income tax.

July 7, 2017

What Benefits Can Elders Qualify for in New York?

by Ettinger Law Firm

For New Yorkers over 60-years old, state and federal programs provide numerous benefits and community services to help cope with some of the hardships associated with aging. Every county in New York, with the exception of New York City, has a an Office for Aging aimed at helping seniors get vital information on these and other programs. Some of these programs, like Social Security and Medicare, are already well known to most people but others involving tax credits and rent subsidies may be less known and therefore less likely to be applied for.

Elders applying for various benefits should know each program has its own requirements and qualifications applicants will need to refer too. Furthermore, some federal programs may require seniors to “spend down” some of their assets to meet wealth qualifications. Because some federal programs have “look back” periods that can end up imposing penalties on the applicant, seniors are strongly encouraged to consult with an experienced elder law attorney about their situation.

Social Security

July 5, 2017

What are My Options for Passing on My Home to My Children?

by Ettinger Law Firm

As we age, we begin to think more and more about what we can pass on to the next generation and their families. One of the best ways to pass on wealth is to transfer ownership of a home or other real estate. Under the law, individuals utilize one of many different way to accomplish this goal, each with its own set of benefits and drawbacks.

In order to avoid placing your loved ones in an unwanted tax situation, carefully examine your situation and tailor a plan that is right for you and your family. With a little time and effort, you can ensure the transfer of your home and other assets goes as smoothly as possible.

Naming your family as beneficiaries in your will

June 28, 2017

June is Elder Abuse Awareness Month

by Ettinger Law Firm

According to the Council on Elder Abuse, as few as one in 24-cases of elder abuse go reported to the proper authorities, an unfortunate reality that many across the state and country are actively trying to change. To fulfil the goal of eliminating elder abuse, June is Elder Abuse Awareness Month to help bring to light many of the issues facing our beloved elders enjoying their golden years with family and friends.

Unfortunately, elder abuse can take place in many different settings including at home by a caretaker or family member, a hospital or rehabilitation setting, or a nursing home by malicious or neglectful staff. According to mental and emotional health website HelpGuide.org, as many as half a million cases of senior abuse are reported every year, a number that pales in comparison to the estimated numbers of unreported cases.

Often times, elder abuse and neglect manifests itself in deep emotional suffering like depression or becoming withdrawn, making it difficult to report and stop elder abuse from the onset. No matter how secure you believe your elder loved one may be, you should always remain vigilant for the signs and symptoms of abuse or neglect. Armed with knowledge, you can be the advocate your loved one needs should he or she become a victim of abuse or neglect.

June 23, 2017

Elder Law Estate Planning in New York – What is Intestate Succession?

by Ettinger Law Firm

When someone passes away without creating a last will and testament or trust, the individual passes away in intestate, meaning his or her assets will be distributed to heirs based on a line of succession under New York state probate laws. While most of us plan for the time after we pass away, not everyone goes through the process of creating a will or trust and this can create some complex legal issues when the estate passes through probate.

Unless a trust is created, every estate must pass through probate court in New York, even if the deceased created a clear and concise will. However, there are a few types of assets that will not need to pass through intestate sucession if the decedent pases away without a will. These include:

Life insurance payouts
IRA, 401(k), or other retirement account
Securities from a transfer-on-death account
Bank accounts set up as payable-on-death
Property owned with someone else in joint tenancy

These types of assets already have beneficiaries named to them and therefore do not need to pass through any type of probate. However, other assets like homes, vehicles, personal possessions, other bank accounts will likely be subject to intestate succession.

Who receives inheritance in New York

New York Estates, Powers, and Trusts Laws lay out a clear line of succession when individuals pass away intestate. Typically, surviving spouses and children are among the first in this line of asset distribution. This table shows the full line of succession:

Children and no spouse	Entire estate
Spouse and no children	Entire estate
Spouse and children	Spouse inherits first $50,000 of estate property & 1/2 balance. Children inherit remaining balance
Surviving parents, no children and spouse	Entire estate
Surviving siblings only	Entire estate

When can the state seize and estate?

The state of New York can actually take possession of an estate without a last will and testament in very limited circumstances. For the state to seize the estate, the deceased must pass away without creating a trust or last will and testament and must not have any surviving relatives.

Other surviving relatives eligible to receive assets from an intestate include half-siblings, adopted children, children conceived posthumously. Foreign relatives are also to receive assets from an intestate decedent, regardless of immigration status in the country.

While many of these scenarios are unlikely for your beneficiaries to go through if you created a trust or estate, you may find yourself in a position to inherit assets from a relative who did not create his or her own last will and testament. By understanding intestates and lines of succession in New York, you can advocate for yourself as an interested party in probate court and recover duly owed assets.

June 20, 2017

What are the Tax Rules of Gifts to Grandchildren?

by Ettinger Law Firm

All grandparents want the best for their children and grandchildren and many take the initiative to set aside part of an estate to help future generations get a head start in life. Forward thinking grandparents should also be aware there are certain tax and entitlement benefits rules seniors need to follow to remain in compliance with the law in order to avoid jeopardizing many of their own assets.

First, grandparents need to know the Internal Revenue System (IRS) places a $14,000 limit on untaxable gifts each year to individual grandchildren. Married couples may each give up to $14,000 to each and every grandchildren without any taxes, making the total $28,000 per year. Grandchildren receiving these gifts will not have to pay any income tax of these gifts, unless the assets generate income.

Additionally, grandparents can make direct payments to doctors and educational institutions to cover services on behalf of their grandchildren. The IRS does not consider payments for medical treatment and education as gifts subject to tax and grandparents can still give up to $14,000 each per year to their grandchildren without worrying about gift taxes.

June 16, 2017

Elder Law Estate Planning – Choosing the Right Trust for your Estate

by Ettinger Law Firm

When deciding how to disburse assets in an estate, many individuals decide to create a trust over a last will and testament in order avoid probate court and create a public record of the events. The pros and cons of establishing a trust over a will depend on many circumstances, including what type of trust the grantor chooses to create and what types of assets fall into that particular trust.

Living trusts

One category of trusts is the inter vivos trust, created while the individual is still alive. Two main types of inter vivos trusts exist, revocable and irrevocable trusts. Revocable trusts allow the grantor modify, amend, or otherwise change any aspect of the trust as he or she sees fit.

June 12, 2017

Erie County Department of Senior Services announces Elder Law Day 2017

by Ettinger Law Firm

The Erie County Department of Senior Services recently announced the date for its 17th annual Elder Law Day event. The program will take place from 2pm to 8pm on Thursday, June 22, at the Adam’s Mark Hotel, 120 Church St., Buffalo, New York. The event helps educates seniors and the greater public about many health, safety, and legal issues many of our beloved elders face in these modern times.

The free event will touch on such topics as Medicare, Medicare Supplemental and Managed Care plans, HMO’s, PPO’s, Part D coverage and long term care insurance to help seniors and their families make informed decisions about elder health care needs. Event Goers can also sit down with sponsors to discuss topics like Medicaid planning, estates, trusts, wills, housing, consumer, health insurance and much more.

“Elder Law Day is full of valuable information and is a great opportunity for seniors and caregivers to learn about their rights, get answers to their questions, and build a plan for the future. These events have been tremendously popular in the past and have proven to be a good way to get information into the hands of people who need it,” said Tim Hogues, Erie County Commissioner of Senior Services. “Elder Law Day brings together professionals from all around the aging spectrum to share their knowledge and actually help seniors right on the spot. I encourage seniors, caregivers, and anyone who needs the latest information on any aspect of senior life to attend.”

June 8, 2017

Do Not Forget to Apply for SSI Death Benefits if You are a Surviving Spouse or Child

by Ettinger Law Firm

The passing of a loved one is never an easy event. While families take time to grieve and mourn the loss of a parent or spouse, many estate-related details that can greatly impact the estate’s financial situation may be overlooked. By taking some time to understand what types of benefits Social Security Insurance (SSI) recipients qualified for before their passing, surviving family members can more easily claim these benefits and relieve some of the financial strain of laying a loved one to rest.

Believe it or not, many people forget to claim SSI death benefits after the passing of a senior loved one. These benefits help provide funds towards the cost of funeral or burial for surviving spouses or children of SSI eligible individuals. The program is administered by the U.S. Social Security Administration (SSA) and provides a $225 Social Security Lump Sum Death Payment (LSDP) benefit.

President Franklin D. Roosevelt created the administration in 1935 during his first term during the New Deal. The SSA provides benefits for the elderly, disabled, widows, and many other vulnerable citizens. The $225 is the original amount written into law and stands today to aid those in need.