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Suffolk County, NY Estate Planning and Elder Law Blog

Tuesday, June 21, 2016

Britt Burner, Esq. named as one of Star Network's Stars Under 40!

The Star Network has honored 40 young professionals in Brooklyn under 40 years old who exemplify outstanding leadership skills, not only in their chosen fields, but also in their community. The awardees were honored on Thursday, June 16, 2016 at the Grand Prospect Hall. 

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Monday, June 20, 2016

Chronic v. Community Medicaid

Question: My dad will need care soon, I am not sure if he can be safely cared for at home or if he will need a nursing home.  I am also concerned about the cost, can you tell me the eligibility requirements should we decide to apply for Medicaid to help cover the cost of his care?

Answer: In New York, Medicaid can be a pay source whether you require care in your home or care in a Nursing Facility.  The program which can help cover the cost of care in the home is referred to as Community Medicaid and the program which can pay for all or part of the cost of a Nursing Home is called Chronic Medicaid.  Because Medicaid is a needs based program, certain income and asset requirements apply. 

In order to be financially eligible for Community Medicaid the applicant can have no more than $14,850.00 in liquid, non-qualified (non-retirement) assets in his name.  He may have retirement assets in an unlimited amount so long as he is taking a monthly required distribution as determined by the local department of social services.  The primary residence is an exempt asset; however, it is important to consider asset planning if the applicant own a home.  Although the home is exempt for eligibility purposes, there is a potential for estate recovery after the applicant passes away if proper planning is not undertaken.  Finally, the applicant may pre-arrange and pay for his funeral expenses so long as the pre-payment is irrevocable.  Personal property is exempt as is one car.  With respect to income, a single applicant may have no more than $845.00 in monthly income; however, any income earned in excess of the $845.00 can be preserved for the applicant’s use by creating and funding a Pooled Income Trust.  One important thing to take note of is that the Community Medicaid program in New York has no look back.  What this means for an individual living in the community is that he can undertake planning in one month and is immediately eligible for services the following month.  This allows many of our clients to remain in the community, receive the care that they need while still managing to preserve their assets. 


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Wednesday, June 15, 2016

Descendants Trusts

With tax planning becoming less of an issue for the average client, the focus in estate planning has shifted to asset protection for intended beneficiaries. As attorneys, we often hear our clients tell us that they plan to leave everything equally to their children, but that they are concerned that one (or more than one!) has creditor issues or are going through a divorce. How can they ensure that whatever they leave to this child will not have to be spent on his or her debts or given to his or her soon-to-be ex-spouse? The answer is with the use of Descendants Trusts.

Whether an estate plan includes a traditional last will and testament or a trust, planners should direct that any asset left to a child with potential creditors or divorces be left in a Descendants Trust, also commonly referred to as an Inheritor’s Trust. This is a trust written into the last will and testament or trust document that does not come into effect until after the death of the creator, which will protect the child’s inheritance from outside invaders, including creditors or divorcing spouses. To the extent that assets are left in the trust, creditors do not have access and the assets are considered separate and apart from the marital estate.

Typically, the Descendants Trust provides that any income generated from an asset in the trust shall be paid to the beneficiary at least annually and principal distributions can be made for health, education, maintenance and support if the child is his or her own Trustee, or for any reason if there is an independent trustee.  An independent trustee is a person not related by blood or marriage to the beneficiary and is not subordinate to the beneficiary, i.e. does not work for the beneficiary.  However, your lawyer can customize the language to provide for you and your beneficiaries’ specific circumstances.


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Monday, June 13, 2016

STAR Exemption

Question: I heard that there were changes to the STAR property tax relief program.  Will I be affected?  Does it matter that my house has been transferred into an Irrevocable Trust?

Answer:  It depends.  The Basic STAR program is available for primary residences where the resident owners’ and spouses’ annual income is less than $500,000.00.  Enhanced STAR provides an increased benefit for the primary residences of senior citizens (aged 65 and older) with annual income less than $84,550.00.  The STAR program provides a tax break for those who qualify.  Typically, if you qualify for the STAR program, you will see the discount indicated on your tax bill.  The Department of Taxation and Finance has released changes in how certain homeowners will apply for STAR and how they will receive their STAR benefit. 

For homeowners that purchased their home between May 1, 2015 and August 1, 2015, the homeowner may need to register to receive the STAR credit if the home was purchased after the 2015 STAR application deadline (March 1, 2015 in Suffolk County) or the homeowner did not apply for the STAR exemption.  For homeowners that purchase their home after August 1, 2015, the homeowner will need to register for the STAR credit.  For anyone else, no action is required and the homeowner will continue to receive the STAR exemption.  If the homeowner falls into either category where they need to apply for the STAR credit, the way the homeowner receives the benefit will change.  Instead of seeing a deduction on their tax bill, the homeowner will pay the tax bill in full and then receive a refund check in the mail.


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Friday, June 03, 2016

DNR Orders

Q: My dad signed a DNR when he was recently admitted to the hospital.  Will this be effective when he is discharged back to his home?

A: No, a hospital Do Not Resuscitate Order (“DNR”) will not be honored in a non-hospital setting.  DNR orders refer only to the use of cardiopulmonary resuscitation, commonly known as CPR, to regain a heartbeat or assist in breathing.  Any other types of interventions are not governed by the DNR order.  The patient can sign the DNR order with the doctor or, if the patient does not have capacity as determined by two doctors, a surrogate decision maker can give the order.  There is a hierarchy to determine who is a person eligible to be the surrogate.  In order, the list is as follows: a guardian, spouse, children, parent, adult sibling, or close friend.  A surrogate signing the DNR order needs one adult witness.  If giving oral consent, the surrogate must give consent to two adult witnesses, one of whom is a doctor at the hospital.  The doctor issuing the DNR order must use the New York State Department of Health form in order for the DNR to be valid. 

However, there is a Non-Hospital DNR order that your father can sign.  This order is also issued by a doctor on a New York State Department of Health form.  Consent from the patient to the doctor can be spoken, including by phone, or done in writing with two witnesses.  If your father has signed a living will in the past that states he does not wish to have extraordinary measures taken on his behalf, this can serve as his consent. After the DNR order is written by the doctor, your father will wear a bracelet that shows that he has signed such an order; this will be the indication to emergency medical personnel that CPR should not be administered.  The non-hospital DNR will be in effect if your father is taken to a hospital unless the doctor cancels the order for some reason, such as by direction of the patient. 


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Friday, May 27, 2016

Powerless Power of Attorney

Question: My father executed a Power of Attorney and named me as the Agent.  I was recently told by his bank that they would not accept my Power of Attorney, what are my options?

Attorney:  A Durable Power of Attorney is an integral part of any estate plan.  A validly executed Power of Attorney will allow you, the Principal, to designate an Agent to act on your behalf and virtually step into your shoes with respect to all of your business and financial matters.  The purpose of a Durable Power of Attorney is to have one comprehensive document that will allow an agent to transact business on all accounts regardless of the financial institution. Where an individual becomes incapacitated without having these documents in place, the family may find themselves petitioning the Guardianship Court in order to have the authority to do the very same thing that a valid and comprehensive Power of Attorney can provide.


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Friday, May 20, 2016

Revocable Trusts v. Irrevocable Trusts

Question: My wife and I recently executed a Revocable Trust and re-titled our home and some bank accounts into the name of the trust, thinking that we had taken the first steps toward protecting our assets should one or both of us need Nursing Home care in the future.  I just heard from a friend of mine that a Revocable Trust does not protect my assets and that what I should have considered was an Irrevocable Medicaid Trust, could you explain the difference?

Answer: Although a Revocable Trust can be extremely beneficial for the creator of the trust, unfortunately, one benefit which can not be realized from a properly created and funded Revocable Trust is asset protection.  Revocable Trusts have become increasingly popular planning tools for individuals who are interested in avoiding probate, and who are concerned with the orderly and private administration of their assets at the time of their death.  Because the grantor (creator) of a Revocable Trust maintains complete control over the assets in the trust during their lifetime, and in most cases, acts as trustee of their own trust, assets held in the trust are considered completely available to the creator, sometimes referred to the grantor or settlor. Accordingly, these assets will also be considered completely available should the creator need long term Nursing Home care. 


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Wednesday, May 18, 2016

Nancy Burner, Esq., 2016 Big Apple Entrepreneur Award Winner

The Big Apple Entrepreneur Network & Manhattan magazine announce Nancy Burner, Esq. as one of the inaugural winners of the 2016 BIG APPLE ENTREPRENEUR AWARDS.

Starting in 2015, Manhattan magazine and the Big Apple Entrepreneur Network collaborated to research and develop a list of the most innovative and noteworthy companies. 

Nancy Burner, Esq. along with the official list of the 2016 Big Apple Entrepreneur Award winners and their respective nomination categories are highlighted in a Special Section of the May/June issue of Manhattan magazine which can be viewed Read more . . .


Monday, May 16, 2016

Who Inherits My Estate If I Die Without a Will

Q: I am unmarried and have no children. My parents are deceased and I have one sibling, a sister.  I currently have no will.  Who would inherit from my estate if I died without a will?

A: Passing away without a will is known as dying “intestate.”  Administration is the process in which a person receives authorization from the Court to collect the deceased person’s assets, pays the debts, and then distributes the remaining assets to the entitled family members.

                In an administration proceeding, it must be determined who are the next of kin of the deceased person, these are known as the “distributees.” New York State law defines a distributee as a "person entitled to take or share in the property of a decedent under the statutes governing descent and distribution."  The law determines who falls into this category based upon which members of your family are living at the time of your death.  Priority is given to spouses and children, then to grandchildren.  If you do not have any of these relations, then priority shifts to your parents, then to your siblings.  The law follows your family tree until a living person is found in a certain category. 

                The spouse has priority to serve as administrator over the children. If there is no spouse, the children have equal rights to serve. Similarly, if you do not have children, all of your siblings have equal rights to act as administrator.  Any person that is not acting will sign a document waiving their right to serve.


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Monday, May 09, 2016

Should I Be Putting Property in My Children’s Names?

Question: Should I Be Putting Property in My Children’s Names?

Answer: Elder Law attorneys hear this question constantly. Typically, once people reach a certain age there is an invisible pressure to transfer assets out of one’s name and into that of their children. Some people feel that if they do not do this, the “State” will take their money either in taxes or for the costs of long term care. Along with the real issues that seniors should be considering regarding transferring their property, there are also many myths.

The first issue that seniors worry about is that they should give away assets before they pass away to avoid taxes. Currently, the Federal Estate Tax exemption is $5,450,000.00 per person, indexed for inflation. That means that each person can leave $5,450,000.00 to anyone without a tax consequence. Married couples can leave $10,900,000.00 together, and the surviving spouse can use any unused portion of the first spouse’s federal exemption. The New York State Estate Tax exemption is currently $4,187,500.00 per person, and is set to increase by about $1,000,000.00 each year until it matches the Federal Estate Tax exemption amount in 2019. For the average person, taxes are not an issue.

With the Federal and State exemptions being so high, the primary concern for the average person is asset protection for the cost of long term care. The Medicaid program in New York will pay for the cost of long term care in a nursing home facility or for care in the home. For nursing home care, Medicaid requires the applicant to have no more than $14,850.00 in assets and there is a five year lookback. This means that a penalty period will be assessed for any assets transferred for less than fair market value within five years of the submission of an application for Medicaid. While it is true that the five year lookback applies whether or not you transfer assets directly to your children or to a trust, the negatives of an outright transfer far outweigh the convenience and low cost.


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Monday, May 02, 2016

Agent Responsibilities under a Durable Power of Attorney

Question: I was recently named as an agent on my mother’s Durable Power of Attorney which included a “statutory gift rider.” What is this document and what responsibilities will I have?

Answer:  A Durable Power of Attorney is a document by which a principal, in this case your mother, can designate an agent to act on her behalf with respect to financial, business or legal matters.  In New York State, the agent is limited to the powers enumerated in the document and can only act pursuant to that authority. A Durable Power of Attorney is effective when signed and, contrary to popular belief, there is no requirement that your mother be incapacitated or unable to handle her own finances in order for the agent to have the power to act. In fact, the Durable Power of Attorney survives an individual’s incapacity, meaning that you will still be able to act for your mother even if she became incapacitated.

New York State amended its power of attorney statue in 2009 and 2010 and now includes a “statutory gift rider.” The “statutory gift rider” expands the traditional power of attorney by allowing you to make gifts on your mother’s behalf. A gift is defined as any transfer for less than fair consideration.  This is a vital tool should an emergent situation arise which requires Medicaid planning for your mother because it allows you as the agent to strategically move money out of your mother’s name in order to qualify for Medicaid. A well drafted Durable Power of Attorney will avoid the necessity of a guardianship proceeding in court later, should the principal become incapacitated.


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Nancy Burner & Associates, P.C. has offices in Setauket, Westhampton Beach, and Manhattan New York.
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© 2016 Nancy Burner & Associates, P.C.
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| Phone: 631-941-3434
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| Phone: 631-288-5612
1115 Broadway , Suite 1100, New York, NY 10010
| Phone: 212-867-3520

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© 2014 Nancy Burner & Associates, P.C.
12 Research Way, East Setauket, NY 11733 | Phone:631-941-3434
82 Main St., Westhampton Beach, NY 11978 | Phone: 631-288-5612
1115 Broadway , Suite 1100, New York, NY 10010 | Phone: 212-867-3520

Attorney Website Design by
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