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Suffolk County, NY Estate Planning and Elder Law Blog

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.


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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.


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Thursday, February 12, 2015

VA Benefits

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:


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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.


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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.   


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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. 


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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. 
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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:


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Friday, January 02, 2015

Update Your Simple Will

Question: My parents are currently in their 80s and still have their Last Will and Testaments which were prepared 40 years ago. The Wills say that everything goes to the surviving spouse and then to their children if the spouse is deceased. Are these Wills still valid? Are there any updates which should be made?

 Answer: Your parents’ Wills are still valid, however, they should consider updating them to take advantage of some new planning techniques. One of the most important provisions which all Wills should incorporate is a trigger “Supplemental Needs Trust.” This is a trust for the benefit of beneficiary who is disabled in order to preserve the inheritance so that the disabled beneficiary can continue to receive their Medicaid or SSI benefits.  The trustee can use the trust assets to provide for the needs of the beneficiary which will supplement, but not supplant, their government benefits. We use the term “trigger” because Wills can be drafted so that the trust only becomes effective if, after the testator’s demise, a beneficiary is disabled and in need of this type of trust. If no beneficiary is disabled, the trust will not be triggered.


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Wednesday, December 24, 2014

Can We Avoid Capital Gains

Question: I am considering creating an Irrevocable Trust to protect my house and other assets, but I am concerned about creating a situation where my children will have to pay Capital Gains tax.

Answer: An "Irrevocable Trust' can offer the creator, often referred to as the  “grantor,” lifetime control over his or her assets, without creating a capital gains issue so long as the trust is a Grantor Trust for income tax purposes.  Certain provisions within the trust create grantor trust status allowing the grantor to maintain his or her tax exclusion if the house is sold during their lifetime and also providing the beneficiaries with a fully stepped up basis and therefore no capital gains tax due at the time of sale.


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Tuesday, December 16, 2014

Consenting to a Probate of a Will

Q: My mother recently passed away and I received something in the mail from an attorney’s office called a “Waiver of Process; Consent to Probate”, what does this document mean?

A: You received this document because the nominated Executor is trying to “probate” your mother’s Will.  Probating a Will means that the nominated Executor is submitting a petition to Surrogate’s Court and asking that the Court issue “letters testamentary” which basically validates the Will and allows the Executor to act.  Most people think that upon death, the Executor is automatically empowered to act.  However, the Executor must first be appointed by the Court.  The Will must be probated in the Surrogate’s Court before the Executor can act for the estate.  The law requires that every person that has an interest in the estate be given notice and an opportunity to object to the Will.  If your mother died without a Will, her spouse and all of her children are “interested parties” and “natural distributees” which means that those parties would inherit from her estate if she died without a Will.


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Nancy Burner & Associates, P.C. has offices in Setauket, Westhampton Beach, and Manhattan New York.
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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: 631-941-3434

Attorney Website Design by
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