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Suffolk County, NY Estate Planning and Elder Law Blog

Monday, September 19, 2016

Estate and Gift Tax Planning


It is not unusual for a client to contact me and ask to review their estate plan.  This may be precipitated by a recent diagnosis or simply by the passage of time.  I have a checklist that I use when reviewing an estate plan if they have a taxable estate.  Under Federal Law, a taxable estate in 2016 is any estate over $5.45 million and in New York State, any estate over $4,187,500.
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Friday, September 16, 2016

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.  It is also necessary that the patient require either skilled nursing or rehabilitative care on a daily basis, and that the care being provided can only be provided in a skilled nursing facility.   Coverage for rehabilitation services under Medicare Part A is limited and is intended to be short-term coverage for acute conditions with the goal of improving that condition through rehabilitation and administration of skilled nursing care.  The first 20 days in the rehabilitation facility are covered in full by Medicare.  For days 21-100, there is a co-pay of $157.50 per day.  Some Medigap/Supplemental co-insurance policies will cover all or part of the co-pay.  Note that Medicare does not always provide 100 days of rehabilitation, it will pay “up to” 100 days. 


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Monday, September 12, 2016

Preparing a Will Online

Q: My cousin told me that he and his wife used an online service to prepare their wills.    He said it was much less expensive than going to an attorney to have a will prepared. My wife and I need to prepare our estate planning documents. We are planning on disinheriting one of our children, and are hesitant to have wills prepared by an online service. Can you give me some advice?

A: In my career, I have seen some do-it-yourself estate planning blunders. One of the most memorable is an estate where the testatrix wrote her own will on a legal pad. The terms of this will gave the decedent’s entire estate to her boyfriend of over twenty years. This will was executed in the hospital in the presence of two nurses. At trial, both nurses testified that they knew that the document for which they were acting as witnesses was a will, despite the fact that the testatrix never stated that the document was her will. Both witnesses were clear in their testimony that the testator never declared the document to be her will, despite the title of the document clearly stating that the document was her will.

            After a trial on the matter, the court held that testimony of the witnesses did not support due execution. This was because there was no publication of the instrument offered for probate as the testator never declared to the witnesses that the instrument was his will.

            In New York, for a Last Will and Testament to be considered valid the following formalities must be followed in its execution: (1) The instrument must be signed at the end by the testator; (2) The testator must sign the instrument in the presence of the attesting witnesses; (3) The testator must declare to the attesting witnesses that the instrument is his or her will; and (4) There must be at least two attesting witnesses.


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Friday, September 2, 2016

Pooled Trusts

Question: My mother is widowed and living alone.  She would benefit from some assistance with her daily activities.  She rents an apartment and only has a small amount of money in savings.  I have heard that Community Medicaid will cover this type of care so long as the recipient is under the income and asset limit.  Her monthly income is $2,000.00 and uses every penny for her monthly expenses.  Does her income disqualify her for home care Medicaid benefits?

Answer: No, your mother’s high income does not automatically disqualify her from receiving Community Medicaid.  With careful planning and the use of a Pooled Income Trust many elderly persons are able to age in place, get the homecare services and preserve their monthly income for payment of household expenses.  In order for a person to be financially eligible for Community Medicaid s/he must not exceed certain income and resource thresholds.  For 2016, a Community Medicaid applicant is permitted to keep $825.00 plus a $20.00 disregard (totaling $845.00) of his/her income.  Typically, Medicaid would be entitled to any income received by an applicant in excess of this amount.  In your mother’s case, her monthly income would be over the Medicaid threshold by $1,155.00 ($2,000.00 - $845.00).  For many individuals like your mother who rely on her entire income to live, turning over this “excess” income would leave her impoverished.  The good news is that in New York, individuals who are otherwise eligible for Medicaid have another option.  New York permits an applicant to deposit his/her excess income into a trust referred to as a “pooled trust.”  These pooled trusts are created by not-for-profit agencies and are a terrific way for individuals to take advantage of the numerous services available through Community Medicaid while preserving their monthly income. 


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Monday, August 29, 2016

Revocable Trusts

Question:  My friend just created a Revocable Living Trust and I am not sure if I should be considering creating one as well.  I am in my sixties and have an estate worth approximately $800,000.00.  My current Last Will and Testament disinherits my estranged son.  Is a Revocable Trust something I should consider?

Answer:  A Revocable Living Trust is a trust that you create during your lifetime and is great tool for those who wish to avoid the probate process. A Revocable Trust is designed to give you, as the grantor (creator) great flexibility.  With a Revocable Trust, you may act as your own Trustee. This allows you to maintain complete control over your assets during your lifetime. 

With a Revocable Trust, assets can be freely transferred in and out of the Trust.  You can also change or revoke the Trust at any time and make all decisions regarding the Trust.  Assets commonly transferred into these Trusts include residences and investments such as bank accounts, certificates of deposit, stocks and bonds.  

In the event of your incapacity, a Revocable Trust can provide for a seamless transition for the management of your affairs.  The person(s) you have selected as successor or co-Trustee would simply take over the management of those assets titled in the name of the trust, possibly avoiding the need for a Property Management Guardian.   


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Monday, August 22, 2016

Gifting for Grandparents

In my practice as an Elder Law attorney, clients often inquire about the benefits of gifting to reduce taxes or to qualify for Medicaid. As a senior with the unexpected need for long term care in the future, the consequences of gifting may have unexpected results.

 It is a common myth that everyone should be gifting monies during their life to avoid taxation later. Currently, a person can give away during life or die with $5.45 million before any Federal estate tax is due. For married couples, this means that so long as your estate is less than $10.9 million, Federal estate taxes are not a problem. For New York State estate tax, the current exemption is $4.1875 million and is currently slated to reach the Federal estate tax exemption by 2019.

 While it is true that there are gifting estate plans which can reduce estate taxes, any gift that exceeds the annual gift exclusion must be reported on a gift tax return during the decedent’s life and is deducted from their lifetime exemption. In 2016, that exclusion is $14,000.00. However, while gifting may be good if the goal is to reduce estate tax, it can be detrimental if the donor needs Medicaid to cover the cost of long term care within 5 years of any gifts.

 It is important to remember that the $14,000 only refers to the annual gift tax exclusion under the Internal Revenue Code. The Medicaid rules and regulations are different. In New York, Medicaid requires that all applicants and their spouses account for transfers made in the five years prior to applying for Institutional Medicaid.  These gifts are totaled, and for each $12,633.00 that was gifted, one month of Medicaid ineligibility is imposed for Long Island applicants. It is also important to note that the ineligibility begins to run on the day that the applicant enters the nursing home and is “otherwise eligible for Medicaid” rather than on the day that the gift was made. 


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Friday, August 19, 2016

What is Probate?


Q: What is probate?   

A:    When a person dies and leaves a Will, and there are assets in the Decedent’s individual name that do not pass by operation of law, there is a legal process that takes place that is called probate.

Before the Decedent’s Will has any legal effect, it must be admitted to probate by the Surrogate’s Court located in the county in which the Decedent died.  In other words, the Surrogate’s Court must make a determination that the Decedent’s Will is valid. 

In order for a Will to be valid in New York, it must be signed in the presence of at least two witnesses and each witness must sign in the presence of the other.  The person making the Will (sometimes called the testator) must be competent to do so of his or her own free will, and not under any duress or undue influence.
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Monday, August 15, 2016

Do I Need a Health Care Proxy

Q: Do I need a health care proxy?  Could my husband make medical decisions for me if I couldn’t make them for myself?

A:  It is a good idea to have a health care proxy.  A health care proxy is a document signed by you with two witnesses that names agents to make medical decisions for you if a doctor says that you do not have the mental capacity to make those decisions for yourself.  You can only name one agent to act at a time, but you can designate successor agents who will act if the first person named becomes unavailable or unwilling to act.  It is very important that your health care proxy states that your agent knows your wishes regarding artificial nutrition and hydration so that they may make end of life decisions on your behalf. 

If you do not have a health care proxy, under New York the Family Health Care Decisions Act which states who will be your surrogate decision maker if you are in a facility, meaning a nursing home or hospital.  This means that if you are at a regular doctor’s appointment or have hospice visiting your home, there would not be any person legally authorized to make your medical decisions.  Also, what if you husband is unavailable or unwilling to act because of his own illness or death?  Assuming your parents are deceased, the default in the law is for your children to act.  What if you have more than one child and they do not agree on a course of treatment?  Signing a health care proxy makes it clear who you choose to make your decisions and it states that you have shared your wishes with your agent regarding artificial nutrition, hydration, and other end of life treatments.  It also clearly lists the addresses and phone numbers for the agents you have named, making them easy to find in an emergency. 


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Friday, August 5, 2016

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.

A Supplemental Needs Trust can be an enormous benefit to a disabled person who, as a result of their inheritance, would otherwise lose any means-based government benefits they were receiving. This includes spouses who may be receiving Medicaid to cover the cost of long term care. For instance, if assets pass through a Will directly to a surviving spouse who is in a nursing home and receiving Medicaid, that spouse will be ineligible for Medicaid because of the receipt of this inheritance from their spouse. However, if a spouse inherits assets in a Supplemental Needs Trust, they will not become ineligible as a result of that inheritance. Moreover, so long as the Supplemental Needs Trust is created through the spouse’s Will, as opposed to through a living trust, there is no five year look back on the inheritance to the surviving spouse on Medicaid.


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Friday, July 29, 2016

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.  The good news is that in New York, there are certain exemptions to the eligibility requirements where the individual requiring a nursing home has a spouse still residing in the community who depends on the joint income and assets to pay expenses.  For that reason, the Medicaid program allows certain spousal allowances.  Specifically, if there is a spouse living in the community, that spouse is entitled to keep up to $2,980.50 (2016 figure) in combined income after payments of medical premiums.  What this means is that where you have a married couple and one spouse requires Nursing Home care, the community spouse can keep his or her income and as much of the institutionalized spouses income to bring them up to $2,980.50.  In addition, although the applicant is permitted to have no more than $14,850.00 in his name at the time of application (not including certain exempt retirement accounts, and an irrevocable pre-paid burial) the community spouse is permitted to keep $119,220.00 in liquid assets plus a the primary residence with a value up to $828,000.  However, under New York Law, the community spouse also has the option of signing a “spousal refusal” and, so long as that document is timely filed with the application, the Medicaid agency will determine eligibility for the institutionalized spouse without considering the assets or income of the community spouse. 


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Thursday, July 28, 2016

Nancy Burner, Esq. Announced as 2016 Brava Award Winner


SmartCEO selected Nancy Burner, Esq. as a 2016 Brava Award winner. The Brava Awards celebrate the distinguished achievements of 40 of Long Island’s top women business leaders. The 2016 Brava Award winners collectively generate more than $10.39 billion in annual revenue and employs 8,149 individuals.
Read more . . .


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| Phone: 631-941-3434
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| Phone: 631-288-5612
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© 2016 Nancy Burner & Associates, P.C. | Copyright
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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