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Suffolk County, NY Estate Planning and Elder Law Blog

Wednesday, April 15, 2015

Spousal Refusal

Question: My husband may soon need a Nursing Home.  I have been told that if he needs to go to a Nursing Home, we will have to spend down all of our assets before he can be eligible for Medicaid benefits, is this true?

Answer:  No, you will not have to spend all of your assets.  Because Medicaid is a need based program, certain income and asset requirements must be met in order to be eligible.  Generally speaking, an applicant for Nursing Home care in New York may have non-retirement liquid assets in the amount of $14,850.00, retirement assets in any amount so long as he is taking a monthly distribution as calculated by the local Medicaid agency and an irrevocable prepaid burial account in any amount.  Moreover, any income received in excess of $50.00 per month must be contributed to the cost of care.


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Wednesday, April 08, 2015

Taxation of a Decedent

Question:  I want to know what taxes will be owed on my mother’s Estate.  I am her Executor and she died on April 2, 2015.  She left an IRA worth $100,000.00 and a house worth $250,000.00 that was purchased many years ago for $20,000.00.  I am so confused with regard to income taxes, estate taxes and capital gains tax. Can you explain this to me?  

Answer:  Let me begin my explaining the three types of taxes that you mention. 

As Executor, you will be responsible for filing an income tax return for the period beginning January 1, 2015 until the date of your mother’s death.  That will be her final income tax return.  It is due April 15, 2016 and you must pay the tax due, if any, for the income she received until her date of death.


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Wednesday, April 08, 2015

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.

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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:


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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?


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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. 



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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.  


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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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