Suffolk County, NY Estate Planning and Elder Law Blog
Wednesday, March 25, 2015
Duties of an Estate Fiduciary
Q: My father recently passed away and I was just appointed executor of his estate. The information letter the Surrogate’s Court sent in the mail says that I am a “fiduciary,” what does that mean?
A: The executor is a fiduciary of the estate and must administer the estate in accordance with the decedent’s wishes as stated in the will. Generally, the duties of an executor are as follows:
Collect and safeguard the decedent's assets;
Obtain appraisals, if necessary;
Open an estate checking account;
Determine the validity of creditors’ claims;
Pay all valid debts and expenses;
Keep detailed and accurate financial records of all of acts as executor;
File the decedent’s final income tax return and estate income tax returns, if needed;
File federal and state estate tax returns, if needed;
Account and obtain releases from the beneficiaries of the estate; and
Make final distributions of the estate assets to the beneficiaries.
Being a “fiduciary” means that you will be held to a higher stand of behavior, which is to act with the utmost loyalty and fidelity to the beneficiaries of the estate. The executor must place the interests of the estate and its beneficiaries above their own. A fiduciary duty also requires a duty of good faith and fair dealing, and a duty to act prudently in managing the estate and its assets. The executor must also keep meticulous records of their actions and financial transactions and must refrain from comingling the estate’s assets with their own. In addition, a fiduciary must treat all beneficiaries fairly and cannot favor one beneficiary over another.
If an executor engages in self-dealing, fails to properly safeguard estate assets, or fails to adequately account for actions taken on behalf of the estate, there is a breach of fiduciary duty. If there is a breach, the Surrogate’s Court can surcharge the executor to the extent of the breach; the executor can be denied compensation for their services or be removed as executor by the Surrogate’s Court.
Serving as executor of an estate is a big responsibility. If you find that you have been nominated as executor of an estate, it is a good idea to retain an attorney experienced in handling the administration of estates to ensure that you do not take any missteps and breach your fiduciary duty to the estate and its beneficiaries.
By: Nancy Burner, Esq. & Kera Reed, Esq.
Wednesday, March 18, 2015
Supplemental Needs Trust for Disabled Child
Question: I have three sons and one is disabled. Should my Will leave everything to my other two sons so that my disabled son does not lose his government benefits when he receives an inheritance? I am sure my other two sons will always take care of him.
Answer: There is no reason to disinherit your disabled child. Chances are that your disabled son will certainly need the inheritance when you die. You should provide for that son in your Will. Even if your non-disabled children have good intentions, many circumstances may arise in their lives that could directly affect their ability to provide for your disabled child. For example, if either son gets divorced, predeceases you, or has creditor issues, the disabled child’s share would be at risk. Even worse, what if your other sons predecease your disabled son?Read more . . .
Friday, March 13, 2015
What is a Pooled Trust and Why Should I Care?
Most clients have heard about Revocable Trusts, Irrevocable Trusts, Living Trusts and even Credit Shelter Trusts, but a pooled trust? Pooled trusts make it possible for people to live at home, pay their own living expenses and receive long term care services through the Medicaid program. Read more . . .
Wednesday, February 25, 2015
Do I Lose Everything If I Apply for Medicaid?
Question: My husband may require care in a Nursing facility. I was considering applying for Medicaid but I have heard that we could lose everything if we accept assistance through the Medicaid program. Is this correct?
Answer: No, however this is a common misconception. As you are likely aware, Medicaid is a means tested program and accordingly applicants must meet certain income and asset requirements. Rest assured, despite these requirements, there are protections for spouses who remain in the community. In 2015, applicants for Chronic Medicaid (this is the program which will assist in paying for Nursing Home Care) may have up to $14,850.00 in resources in order to be eligible. In addition, the applicant may have qualified (retirement) accounts in any amount assuming distributions are being taken on a monthly basis.Read more . . .
Thursday, February 12, 2015
IRA Beneficiary Designations
Q: I have recently rolled over my employer sponsored 401(k) plan into an existing IRA. I am not sure if I need to update the beneficiary designation forms on file; can you give me some advice?
A: Some of the most costly estate planning mistakes I see involve retirement accounts. The mistakes are usually made in the beneficiary designation forms. These forms are typically completed when the account is opened, but it can be amended at any time. The start of the New Year is a good time to make sure all your beneficiary forms are in order. This is especially true if you opened the account years ago. Check the designation on file, to make sure it’s what you intend. If you have had a major change in your family situation, for example, if you or a family member got married or divorced, a loved one has passed away, or if you have had children or grandchildren, be sure your beneficiary designation forms are up to date. Read more . . .
Thursday, February 12, 2015
Question: My father is a World World II Veteran. He is 89 years old and lives alone. Unfortunately, his health is declining and he needs some assistance with his activities of daily living. What benefits might be available to him? What estate planning would he need to complete in order to be eligible for these benefits?
Answer: The first benefit your father may be eligible to receive is the VA pension. In order to receive this monthly stipend, your father must have at least 90 days of active duty service, with at least one day during a wartime period. The Veterans Administration considers the following dates as “wartime:Read more . . .
Thursday, February 05, 2015
Release of Medical Records
Q: My mom recently came to live with me, can I get a copy of her medical records?
A: The Healthcare Insurance Portability and Accountability Act (“HIPAA”) is meant to protect your mom’s confidentiality and privacy regarding her health information.
You may only have access to your mom’s medical information if she gives you authorization. While this can be done orally, most of the time the institution holding the information will want it in writing, a HIPAA waiver or release. If your mom signs this waiver, she can list who the persons are that she authorizes to receive information regarding her medical records. This document will include your mom’s date of birth and the name and address of anyone that she wants to have access to her medical records. The waiver will be addressed to the institution from whom you want to receive the medical records. This could be a hospital, doctor, insurance company, etc.Read more . . .
Friday, January 30, 2015
Joint Accounts and Medicaid
Question: My mother is 85 years old and in good health. She has $75,000 in a joint bank account. If she becomes ill and needs Medicaid, will they consider one-half of that account to be mine? Is there any way she can gift those monies to me and still be eligible for Medicaid if she requires care in a Nursing Home?
Answer: First, to answers your questions, monies held in a joint bank account are presumed to be 100% the property of the applicant unless she can prove that the money was not hers. Any transfer of that money will create a penalty period during which time your mother will be ineligible for coverage for Nursing Home care through the Medicaid program. It is important to note that there is no look-back when applying for Community Medicaid and therefore a transfer in that instance would not create a penalty. When, and if, your mother applies for Medicaid, she is only permitted to have $14,550.00 in liquid assets. She is also permitted to have qualified or “retirement” funds in any amount so long as she is taking a monthly distribution and an irrevocable pre-paid burial account in any amount. The money in the joint bank account will be deemed 100% belonging to her despite the fact that the account is held jointly with you. You can overcome that presumption if you are able to prove that you deposited those monies into the account and that they belonged to you prior to the deposit. As is in most cases, assuming that these funds belong to your mother and your name exists on the account for convenience purpose, the entire account will be considered hers. If on the other hand, you put $25,000 in the account, you can overcome the presumption by providing the agency with documentation showing that you took $25,000 from your account and transferred it to your mother’s account. Read more . . .
Wednesday, January 21, 2015
Transferring Property into a Trust
Question: My aunt has a home that she purchased in 1980. It is now worth $300,000.00 and she wants give it to me to protect it from the cost of nursing home care. Can she just deed it to me? My lawyer is suggesting a trust. What is the difference?
Answer: This is a good question. If you aunt wants to protect her house, why not just transfer it to you? The problem is that there may be adverse tax consequences if the real property is transferred to you outright. First, you would take the property at your aunt’s cost basis. Given that she purchased it in 1980, her basis is probably quite low. That means that you would owe capital gains when you eventually sold the property. In addition, she would no longer be entitled to her capital gains exemption if she sold the property before her death. Presently, the capital gains exemption is $250,000. Read more . . .
Thursday, January 15, 2015
FIDA: You Must Opt Out
Beginning in March 2015, if you are Medicare and Medicaid eligible (dual eligible) in Suffolk County, you will receive a notice alerting you of the option to enroll in a FIDA plan. FIDA stands for Fully Integrated Duals Advantage. This is a new health coverage program which will allow you to throw away all your health insurance cards and replace them with one FIDA card. FIDA will cover doctor and hospital visits, medicines, and long term care, including home care and nursing home care and will replace Medicare Parts A, B and D and Medicaid. Read more . . .
Monday, January 05, 2015
Taxation of a Decedent
Q: My brother passed away in September 2014, and I was recently appointed Executor of his estate. I have started to get 1099s for his various financial accounts. I know that tax season is right around the corner and I have to file tax returns, but am not sure what returns need to be filed and when they are due. Could you explain it to me?
A: You are correct that tax returns will have to be filed; the types of returns and when they are required to be filed are explained in greater detail below:Read more . . .
Nancy Burner & Associates, P.C. has offices in Setauket, Westhampton Beach, and Manhattan New York.