Estate Planning and Elder Law Blog

Can Spouses Disinherit Each Other?

When a couple marries later in life, after they both had children of their own, their estate plans need to take their blended family into account. For example, there are estate planning techniques such as a Qtip Trusts that allow income to the surviving spouse for life, with property passing to children upon the surviving…

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Spousal Refusal

*updated February 5, 2021 If the spouse living in the community executes a Spousal refusal form, the community spouse’s assets are not used in calculating the asset eligibility of the medicaid applicant.  If one spouse requires nursing home care, the community spouse does not need to spend down all his or her assets and become…

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Charitable Remainder Trust as Beneficiary of IRA

The Setting Every Community Up for Retirement Enhancement (“SECURE”) Act became effective on January 1, 2020. While the Act was aimed at improving retirement savings, there is a negative change which effects those who inherit retirement accounts from the original participant. Prior to SECURE, designated beneficiaries of retirement accounts could take required minimum distributions from…

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Don’t Fall over the Estate Tax Cliff

New York State has an estate tax “cliff”, which means that if an estate exceeds 105% of the New York estate tax exemption then the estate will receive absolutely no exemption from New York estate taxes and the entire value of the estate is subject to New York’s estate tax. Since the 2021 NYS exemption…

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Does a Biden-Harris Presidency Affect My Estate Plan?

Certain Biden-Harris proposals may, if enacted, have a significant effect on your estate plan. 2020 was a monumental year with many changes and 2021 may bring changes that affect your estate plan.  There was a political shift in Washington, changes to the New York State Medicaid program, a world-wide pandemic, and amendments to state and…

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What is a Medicaid Asset Protection Trust?

Medicaid Asset Protection Trusts, sometimes called Irrevocable “Income Only” Trusts or Medicaid Trusts,  are used to protect assets and allow people to qualify for Medicaid long-term care. In order to protect the assets, the trust must be created 2.5 years before home care Medicaid is needed or 5 years before nursing home care is needed….

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What You Need to Know about New York’s New Power of Attorney

There is a new simplified power of attorney coming to New York State. A power of attorney is a legal document which appoints an Agent to act on behalf of the Principal with regards to the Principal’s financial and legal matters. On December 15, 2020, Governor Cuomo signed Assembly Bill A5630A to help simplify the…

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Do Bank Accounts Go Through Probate?

Whether a bank account must go through probate depends on how the account was held – jointly or in the decedent’s sole name. Like real property, bank accounts can be owned in many ways. If a bank account is held jointly between two or more parties, there is usually a right of survivorship. This means…

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Article 81 Guardianship Proceeding Explained

A guardianship proceeding is commenced under Article 81 of New York State Mental Hygiene Law. The purpose of the proceeding is to have a guardian appointed for a person who is deemed incapacitated and unable to make decisions with respect to personal and/or financial matters. The Court must find that the alleged incapacitated person (or…

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Gifting Techniques for 2021

The 2017 Tax Cuts and Jobs Act (TCJA)  doubled the estate tax exemption, which in 2021 is $11.7 million dollars. This exemption is set sunset in 2026, but due to the economy, it may substantially decrease as early as 2021 or 2022 to pre-2017 levels, adjusted for inflation. Some gifting techniques you may want to…

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