Articles Posted in Elder law estate planning

Figuring out the best time to claim Social Security benefits is an important part of retirement planning that can have long lasting impacts on the type of lifestyle individuals and their spouses can expect to enjoy in their Gold Years. Depending on when individuals decide to take their Social Security benefits, from the ages of 62 to 67, it can mean the difference of hundreds of dollars per month to thousands of dollars of the course of a lifetime.

While the conventional wisdom is to wait as long as possible to claim benefits, and hopefully reach maximum payouts, for many beneficiaries there comes a time known as the “break even point” when the amount of benefits claimed would be essentially the same regardless of the amount received per month. This happens because the program is designed to give individuals more or less the same payout over their projected lifetimes, known as “actuarial neutrality.”

Determining one’s break even point is a fairly straightforward process but should take into account certain other factors that may artificially inflate any projected payout, namely excluding cost of living adjustments. Including projected cost of living adjustments will only create artificially high numbers that may not end up being actual benefits received.

Most of us would not want to be anywhere else but in our homes as we grow old and enjoy our Golden Years. However, as we age the daily activities and chores we took for granted can become greater burdens or turn into situations where we may suffer serious injury in our own home. Fortunately, it does not have to be like this and there are a number of different modifications that can be made to improve the safety and comfort of the places we live.

While most of the homes in the country were not designed with the foresight of being accommodating to the physical and cognitive challenges many seniors live with and overcome every single day. Stairs, hallways, and other physical barriers can present unique challenges to older Americans but with a few universal modifications seniors can live safely and comfortably in their homes.

One revolutionary thing seniors can take advantage of right away is incorporating smart home products to help control things like the thermostat, turnings lights and televisions on and off, and locking windows and doors. Another great advantage of adopting smart technology throughout the home is being able to monitor what is going on and report to caretakers or relatives any issues with the house.

No one wishes to end up in a nursing home or require assisted living care but for many Americans, it is a reality that will come true and needs to be planned for. When we do enter a nursing home or have our loved ones placed there, we expect the facility will look after residents and provide the appropriate care to ensure elders live their Golden Years in comfort and dignity.

However, because nursing homes and other skilled care facilities are for-profit business that look to maximize their income and payments, particular from federal entitlement programs like Medicaid, they sometimes make decisions that are not in the resident’s best interest. One of the most drastic measures a nursing home can take is evicting a resident and will often employ a variety of measures to see the process through.

Often times, nursing homes will justify an eviction by saying the facility simply cannot meet the resident’s needs. Excuses for why a nursing home cannot take care of a resident include that individual having dementia, being combative, or is non-weight bearing and needs assistance for even the simplest tasks. Other times, nursing homes will reevaluate residents after the facility converts to another type of assisted living facility and focuses only on taking care of patients with different medical and lifestyle needs.

Qualified plans  such as IRAs, 401(k)s, 403(b)s and other deferred compensation are excellent ways to help reach your estate planning goals and ensure your wealth is not depleted by excessive taxes and assisted living costs. IRAs in particular help achieve both of these goals because they are not taxed and if utilized properly, will not count against you when applying for Medicaid to pay for nursing home care.

For estate planning purposes, qualified plans are considered those which individuals make contributions to while working and begin making at least the required minimum distribution (RMD) at 70-years old. IRAs and qualified plans help encourage people to save early and often for their retirements by offering these tax-free incentives and should be taken full advantage of to ensure we can live our our retirement in comfort.

If an individual is already living in a nursing home and applying for Medicaid, the principal amount of the IRA is protected when calculating one’s assets to determine whether or not he or she qualifies for Medicaid as long as that person is taking the RMD. For a Roth IRA, it is not necessary to take the RMD if distributions are being taken.

When planning our estate, most of us do so with the intent of making sure our family and close friends are taken care of after we pass away and for some of us, that can include our companion animals many consider to be as close as family. Fortunately, New York trust and estate laws allows taking care of our pets to be more than an afterthought and gives individuals the opportunity to proactively plan for the even that we may not be around to take care of the animals we love so much.

In New York, the legal mechanism that allows pet owners to posthumously care for their companion animals can be found in the Uniform Probate Code § 2-907. Honorary Trusts; Trusts for Pets. New York is one of over 20-states that allow these special kinds of trusts to allow for the care of pets and other domesticated animals. Depending on the type of animals to be cared for, these arrangements may be as simple as bequeathing animals in a will and leaving a small amount of money or as complex as placing an entire farm into a trust and allowing beneficiaries to name caretakers.

Honorary trusts can be created for a whole host of situations with the basic goal being to have money put away to ensure maintenance of some property. This can include keeping headstones at cemeteries in good condition, preserving artwork, and providing for food and medical care of pets. It is not necessary to have a beneficiary named but it is also important to note that these types of trust can only last for 21-years, which may complicate care for long-lived animals.

Having prescription drug coverage is extremely important to ensuring we get necessary, life-saving medications while also making sure we do not go bankrupt on impoverished it the process. However, using prescription drug insurance to buy medications does not always yield the best price for consumers and pharmacists know this but cannot always inform patients about the cost savings because they are contractually bound in one way or another to remain silent.

Congress recently passed a pair of bipartisan bills aimed at helping consumers get the best price on prescription drugs by prohibiting contractual obligations that require pharmacists to stay silent about how consumers may be able to save money. If signed into law, the the Patient Right to Know Drug Prices Act (S.2554) and the Know the Lowest Price Act (S. 2553) would remove barriers placed on pharmacists and allow them to volunteer information to help patients save money on vital prescriptions.

The Patient Right to Know Drug Prices Act (S.2554) would bar insurers and Pharmacy Benefit Managers (PBMs) from placing limits on a pharmacy’s ability to tell consumers when there is a difference between how much a patient would pay for a prescription with insurance compared to without it. The bill would apply to insurance plans offered through exchanges on the Affordable Care Act (ACA) and by those offered by private companies.

Elder abuse occurs all too often and comes in many forms. While it may seem unfathomable, abusers can be the ones we rely on the most to take care of our beloved elders during the time in their adult lives in which they may be the most vulnerable. Although nothing can be done to undo the harm caused by elder abuse, family members can look out for the signs of its effects to immediately recognize and end the abuse.

According to statistics from 2011, over 260,000 older adults in New York State suffered from some type of elder abuse in just that year alone. In 2016, the state Office of Child and Family Services released a study that estimated financial exploitation of elders in New York costs a total of $1.5 billion a year. Another study looking into the issue estimated the national cost of elder abuse and exploitation at $36.5 billion per year.

For whatever reason, only an estimated one in 22 instances of elder abuse is reported. Many experts believe that one main reason may be this as many as nine in 10 times, that abuse is committed by family member and the victim may not want any legal or familial trouble for someone they otherwise love and care for. No matter the situation, family members need to convey to their elders that revealing the abuse is the way to end it.

After taking the time to plan and execute a will, many people wonder what to do with the actual document to ensure it stays safe and can be found by the executor when the time comes. Without the original, executed copy of the last will and testament, the executor may be unable to pass the estate through probate and the court will consider the estate to be in intestacy.

Some of the most common places people keep their wills can include the office of the attorney who may have helped draft the will and advise the client, a safe deposit box in a bank, or in a fireproof safe at the individual’s home. Each of these scenarios have strengths and weaknesses and what may be the right fit for one person may not be the best for another. In any case, the executor’s access to the original copy of the last will and testament is crucial to the estate passing through probate.

Another less well known option is the register the original copy of the will with the appropriate Surrogate’s Court while the testator is still alive. Filing the will with your local probate court is a good plan in case the executor to your estate cannot find the original copy of the will or if you believe the document may be subject to tampering.

When people learn they are going to be the beneficiaries of someone’s estate and will inherit property, many of them often wonder whether it will actually cost them money to do so. We often hear about raising or lowering the federal and state estate tax, sometimes referred to as “the death tax” and all this talk can be quite confusing. While every situation is different and the tax code itself is quite complicated, there are a few basic principles beneficiaries should be able to rely on.

To start, New York is one of only a handful of states with a state inheritance tax but there are exceptions to the rule and that amount has increased substantially over the past few years. As of April 2017, the exemption on inheritance tax in New York is $5.25 million, meaning beneficiaries will only be taxed for assets worth more than this amount. The tax rate for inherited assets above $5.25 million is five to 16 percent, much lower than the federal inheritance tax rate of 40 percent.

Unlike other states with inheritance taxes, New York has a “tax cliff,” meaning if your inherited assets are greater than the tax exemption then the entire value of the asset is taxed. By contrast, other states with inheritance taxes only tax at the value above the exemption threshold. New York is one of the only states to institute its inheritance tax rate this way and although this may seem steep, the current tax rates are much more fair than they used to be.

A last will and testament spells out the final wish of the deceased, including how he or she wishes to allocate assets amongst friends and family. However, there are certain limitations to the extent deceased spouses may effectively cut out their surviving spouse from a will. Under New York estate laws, like so many other states, surviving spouses have certain claims to assets that cannot be undone by a will.

If an individual attempts to leave his or her spouse completely out of a will or only leave the surviving spouse a small amount, New York probate courts, known as Surrogate Courts, will step in and apportion a large part of the estate regardless of the text of the will. This is because just like in divorce, spouses have certain rights to community property like homes, cars, and bank accounts.

When someone passes away, with or without a will, all heirs with legal claims to the estate like spouses and children must be notified by the court. Next, the executor of the estate will need to find these persons and ask each of them to sign a waiver giving up their right to challenge the estate. Typically, this is no problem since close family members with estate claims are usually already mentioned in the will and the estate is apportioned fairly.

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