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Suffolk County, NY Estate Planning and Elder Law Blog

Friday, August 29, 2014

Spousal Improverishment

Question:  My husband is currently receiving services through the Community Medicaid program.   He is using a Pooled Income Trust to preserve his excess income.  I heard that there are changes that may affect his ability to use the Pooled Income Trust in the future, is this correct?

 

Answer:  Yes.  On August 5, 2014, the Department of Health issued a directive advising local Departments of Social Services (the Agency that administers the Community Medicaid program) of a new regulation regarding the income budgeting rules for married individuals enrolled in Community Medicaid through a Managed Long Term Care Plan.


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Wednesday, August 27, 2014

Why College Age Young Adults Need a Health Care Proxy and Durable Power of Attorney

Q: My son just turned 18 and is heading off to college in about two weeks. The college is located upstate.  Are there any legal documents he should execute before he leaves?

A: Yes, your child should execute a Health Care Proxy and Durable Power of Attorney. These two estate planning documents are essential for young adults. Without these documents, parents do not have the authority to make health care decisions or manage money for their children once they turn 18. Even though parents are paying the tuition, cover their children on their health insurance plans and claim them as dependents on their tax returns. That means if a young adult is in an accident and becomes disabled, even temporarily; a parent might need court intervention and approval through a guardianship proceeding to act on his or her behalf.


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Monday, August 18, 2014

Appointing a Guardian for Minors

Question:   My wife and I are in our mid-forties.  We have two children ages 10 and 13.  Should anything happen to my wife and I, how can I ensure that my sister is given legal custody of my children?

Answer:   No matter how young you are, if you have minor children, it is a good idea to establish an Estate Plan which includes a designation of a guardian for them in the event that both you and your spouse pass away.


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Monday, August 11, 2014

Planning for a Family Member with Special Needs
Caring for a loved one with special needs during your life may be one of the most important jobs you have, but many do not realize the importance of planning for that same person for after you are gone. Since so many disabled individuals receive some kind of government benefits, it is imperative to ensure that these benefits continue, even if they receive an inheritance. This protection can be ensured by creating a Supplemental Needs Trust or Special Needs Trust (“SNT”) for the benefit of the disabled beneficiary.
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Monday, August 11, 2014

Probate Estate v. Gross Estate

Question:  Someone told me that assets with named beneficiaries are not subject to estate tax, is that correct?

Answer: No, that is not correct.  Your “gross taxable estate”, meaning the assets that are subject to estate tax, consists of all of the assets which you have an interest in at death, even if those assets do not pass to your beneficiaries through the probate of your Will.  However, if your gross taxable estate is less than the state and federal exemption amounts, there will be no estate taxes due at your death.  In 2014, those who die as residents of New York State with less than $2,062,500 will not owe state estate taxes, and those with less than $5,340,000 will not owe federal estate taxes.  The New York State exemption amount will increase over the next several years to meet the federal exemption amount in 2019.


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Wednesday, August 06, 2014

Inherited IRAs
In a recent United States Supreme Court decision, the Court unanimously found that IRAs that are inherited are not protected from creditors in a bankruptcy proceeding because they are not considered “retirement funds” as interpreted by the Bankruptcy Code.
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Wednesday, August 06, 2014

Using Pooled Income Trusts in Homecare Medicaid Planning (UPDATED)

Question:  My parents are in their eighties.  Both are beginning to need assistance with their daily activities.  Even so, neither one is ready to move to assisted living or into a nursing facility.  Mom and Dad own their home and each receive social security and a pension.  Other than that, they do not have much in savings.  I have heard that Medicaid will cover this type of care so long as the recipient is under the income and asset limit set by Medicaid.  Is there a way to preserve Dad’s income for Mom and secure services for him at the same time?

 Answer: Yes. The situation that you have described is a situation in which many elderly couples find themselves.  The good news is that an elderly person’s high income does not automatically disqualify them from receiving Medicaid Homecare Benefits.  With careful planning and the use of a Not-for-Profit Pooled Income Trust, many elderly persons are able to age in place, get the homecare services that they need, and preserve their monthly income for payment of household bills. 


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Friday, August 01, 2014

Article 17A Guardianship

Question:  My daughter is 18 years old and is developmentally disabled.  She is unable to make medical decisions for herself and cannot handle her own finances.  A social worker suggested that I apply for an Article 17A Guardianship.  What is an Article 17A Guardianship and is this advisable?

  

Answer: When your daughter turned 18, she reached the “age of majority”. Once an individual reaches the age of majority, they are both legally permitted and solely responsible for making their own decisions regardless of their disability. 


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Friday, July 25, 2014

Bonding of an Estate Fiduciary

Q: I was recently appointed Administrator of my uncle’s estate, but the Decree from the Surrogate’s Court said that I must post a bond. What does that mean?

A:  It is fairly common that the fiduciary of an estate may receive notice that the he or she must be bonded in order to complete the appointment by the Surrogate's Court. The bonding requirement of an Executor (when a Will is probated) or an Administrator (when there is no Will) is not as strange or as intimidating as it may sound.


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Friday, July 18, 2014

Gifting in 2014

Question:  My mother is widowed and is beginning to decline in health.  I have four siblings.  We know that in order to qualify for Medicaid, Mom cannot have more than a certain amount of assets in her name.  She rents a house, but has approximately $150,000.00 in various CD accounts.  A friend of hers told her that she can give up to $14,000.00 to each of us annually without penalty and still qualify for Medicaid if she needs it in the future, she would like to give these gifts before the year end so that she can gift again in 2014, is this advisable?

 Answer: NO!  We often see clients who believed this to be true, and thinking that they were doing the prudent thing did exactly this sort of gifting, resulting in long periods of ineligibility when the time came to apply for Medicaid.


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Wednesday, July 16, 2014

Supreme Court Finds that Inherited IRAs Are Not Protected

In a recent United States Supreme Court decision, the Court unanimously found that IRAs that are inherited, are not protected from creditors in a bankruptcy proceeding because they are not considered “retirement funds” as interpreted by the Bankruptcy Code.

In the case, CLARK V. RAMEKER, an individual inherited an IRA from her mother and later filed for bankruptcy. At the time she filed for bankruptcy, the IRA had roughly $300,000.00 remaining. Typically, when filing for bankruptcy, certain assets are considered exempt, including retirement funds. However, until this case was decided it was unclear whether an IRA which is inherited receives the same protection as an IRA as an IRA that is still held by the original contributor.


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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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