Suffolk County, NY Estate Planning and Elder Law Blog
Monday, July 27, 2015
Q: My friends used an online service to prepare their Wills. They signed them at in the presence of their neighbors. They said it was much less expensive than going to an attorney to have a Will prepared. I am planning to disinherit one of my children but I am hesitant to have my Will prepared by an online service. Can you give me some advice?
A: In my career, I have seen some do-it-yourself at home estate planning blunders. One of the most memorable is an estate where the testator signed her will at the bottom of every page, but not on the clearly marked signature line on the last page. This made the entire Will invalid. I have also had circumstances where the person asked witnesses to sign the document but never told them that it was a Will they were witnessing. Read more . . .
Monday, July 27, 2015
Aging in Place
For most of us, if a time ever came that we needed assistance, the preferred option would be to remain at home and receive whatever care services we needed in our familiar setting surrounded by family. For many, the Community Based Long Term Care Program, commonly referred to as Community Medicaid makes that an affordable and therefore viable option. Read more . . .
Tuesday, July 21, 2015
Does Medicare Cover Nursing Home Care?
Question: My mom fell in her home and is being discharge from the hospital tomorrow. A friend told me that Medicare will pay for Nursing Home Care, is this true?
Answer: Long Term Nursing Home care is not part of the Medicare program. However, where a person, like your Mom is being discharged from the hospital to a skilled nursing facility for the purpose of receiving skilled or rehabilitative services, the stay will be covered under Medicare Part A so long as certain pre-requisites are met. The prior hospitalization must be for at least three consecutive days, excluding the day of discharge, and the admission to the facility must be within thirty days of the date of the hospital discharge. It is important to inquire from hospital staff whether the patient was admitted to the hospital or was merely under “observation” because observation status days do not count towards the three day minimum. Read more . . .
Monday, July 13, 2015
Home Transfer When On Community Medicaid
Question: My mother is receiving Community Based Medicaid. She owns a house in her sole name. She has received advice on what to do with the house such as transfer it to her children or to a trust. Are these options advisable?
Answer: The house should be transferred out of your Mom’s name. Individuals who have received benefits under the New York State Medicaid program are subject to estate recovery for assets passing through their probate estate. Where a Medicaid recipient passes away with assets in their sole name, a probate proceeding must be commenced in Surrogate’s Court. Once this occurs, the Department of Social Services will seek to recover monies they paid for services on behalf of the Medicaid recipient. Read more . . .
Wednesday, July 08, 2015
The Look-Back Period
Question: What does the phrase “five year look-back” refer to in the context of Medicaid planning?
Answer: The look-back period refers to the five-year period immediately prior to the submission of application for Chronic Medicaid. The Department of Social Services, the Agency tasked with reviewing and either approving or denying Medicaid applications, requires that full financial disclosure be provided for this five year time period for all applicants and their spouses. Medicaid requires complete copies of all financial statements as well as verification of the source of all deposits. Read more . . .
Wednesday, July 01, 2015
Failure to Maximize an IRA
Question: My mother applied for Chronic Care Medicaid to cover her stay in a nursing home facility. At the time of her application she had an individual retirement account (IRA) in the amount of $11,000.00 and $2,000.00 in her bank account. I was informed that the resource allowance for Medicaid is $14,850.00. However, my mother was denied Medicaid for failure to “maximize” her IRA. What does this mean and was the Department of Social Services correct in its determination to deny Medicaid?
Answer: The general rule with retirement accounts with regard to Medicaid eligibility is that the Department of Social Services will not consider the value of an IRA, or any other qualified fund, if the applicant is taking monthly distributions from same according to Department of Social Services’ life expectancy chart. Department of Social Services refers to taking distributions as “maximizing” the IRA. It is important to note that maximizing the IRA is not the same as taking minimum required distributions. For instance, the applicant must take distributions regardless of their age. Typically the IRS does not require IRA holders to start taking distributions until they reach the age of 70 and ½. The distributions must be taken monthly, not in one lump sum. Most notably, the Department of Social Services may not use the same life expectancy chart as the IRS which means that the distribution will be larger than normally required.Read more . . .
Wednesday, July 01, 2015
Protecting Your Home
Clients often ask how they can ensure the home in which they live or their vacation home can be protected against the cost of long term care. These assets are often worth much more to our clients than the cash value; they represent hard work to pay off the mortgage and are wrapped in memories.
Prior to the sophistication of Trust law, many individuals would pass a residence to their beneficiaries by executing a deed with a life estate. For the owner, this would mean retaining the right to live in the home until death, but upon their demise, the property would be fully owned by the beneficiaries. Because they retained a lifetime interest in the property, they would still be able to claim any exemptions with respect to the property. Moreover, when the owner died, the beneficiaries would get a “step-up” in basis which eliminates or lessens capital gains tax due if they did sell the property.Read more . . .
Friday, June 19, 2015
Question: My mother is very ill and has specific wishes with regard to end of life decisions. She executed a living will and a DNR during her last hospital stay; however, she is concerned that her wishes may not be followed. Is there any other document that would ensure her wishes are carried out?
Answer: In addition to traditional healthcare advance directives, such as a Healthcare Proxy and Living Will, the MOLST form is another directive one can execute to ensure their end-of-life wishes are followed.Read more . . .
Wednesday, June 17, 2015
Consenting to the Probate of a Will
Q: My aunt 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 form mean?
A: You received this document because the nominated Executor is trying to “probate” your aunt’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. Read more . . .
Monday, June 08, 2015
Question: My mother was recently diagnosed with Alzheimer’s. She never executed a health care proxy or power of attorney so no one has been appointed to handle her finances or make medical decisions on her behalf. Is it too late now to execute these documents? What will happen if she never executes them?
Answer: Having a diagnosis of Alzheimer’s Disease does not necessarily mean it is too late for your mom to executed advance directives (i.e., Power of Attorney, Health Care Proxy and/or Living Will). In order to execute these documents, you mother will need to have the capacity to sign them and also to understand what she is signing. Read more . . .
Wednesday, June 03, 2015
New York State Estate Tax Update
The New York State Estate Tax exclusion amount has increased again as of April 1, 2015 to $3,125,000.00. This is an increase from the $2,062,500 exclusion amount which was in effect from April 1, 2014 to March 31, 2015. The exclusion will continue to increase each April 1st in the years 2016 and 2017. On January 1, 2019, the basic exclusion amount will be indexed for inflation annually and will be equal to the federal exclusion amount. The New York State and federal exclusion amount is estimated to be $5,900,000.00 in 2019.Read more . . .
Nancy Burner & Associates, P.C. has offices in Setauket, Westhampton Beach, and Manhattan New York.