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Sunday, March 29, 2015

The battle for the estate of an elderly heiress and the wrong lessons for estate planning

A book (and soon to be a movie) Empty Mansions tells a story about Huguette Clark, a reclusive heiress to a copper mining fortune. Ms. Clark’s father, W.A. Clark, was the founder of Las Vegas and the copper king. His daughter spent the last 20 years of her life in a hospital, even though she was healthy.

During the last years of her life, she made large gifts to the people who were taking care of her – nurses, doctors, lawyers, accountants, etc. After her death, even though she wrote a Will and made it abundantly clear that she did not want her relatives to inherit any of her money, a long estate battle ensued. A lot of her charitable wishes cannot be carried out now because of the millions of dollars that went to lawyers, the unanticipated money that went to relatives, and the millions that had to be paid to the IRS.

There are many lessons from her (botched) estate planning that any good estate planning attorney will explain to a client:

  1. Consider creating a trust and place assets in it during the creator’s life. Trusts are harder to challenge and the information in them is private.

  2. Do not leave bequests to your accountant and your attorney in the will.

  3. Get an independent doctor’s opinion about the competency of the person making the bequest.

  4. Hire a competent accountant and a lawyer who understand the complexities and interplay of estate taxes, basis step up rules and charitable bequests. Estate planning is a very specialized area. A generalist attorney is unlikely to understand all the implications of one’s actions.

 

The information in this blog was adapted from

http://www.foxbusiness.com/personal-finance/2015/02/19/how-elderly-heiress-lost-her-300-million-fortune/

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Thursday, March 26, 2015

Asset Protection Planning for the Home

Medicaid Eligibility:

What is homestead: A “homestead” is the primary residence occupied by the Medicaid recipient or his spouse, minor or disabled child. A homestead is an exempt resource for the purpose of Medicaid eligibility.

Penalty Period: All transfers, including the transfer of your home, are subject to a ‘look back period’ from the time of the application for Medicaid nursing home benefits. Currently the ‘look back period” is 5 years. The period of ineligibility for nursing home services is calculated by dividing (i) the uncompensated value of the transferred resource by (ii) the average regional monthly cost of a nursing home to a private pay patient. The period of ineligibility begins only when the Medicaid recipient is in a nursing home and “otherwise eligible”. The maximum penalty period is 60 months.

There is currently no look back period and no penalty for uncompensated transfers for Medicaid home care benefits.

Exempt transfers: Some transfers are exempt and do not incur a penalty period. Those are transfers to a spouse, transfers to a minor or disabled child, transfers to an adult child who has resided with the parent for at least 2 years prior to the transfer and became a primary caregiver, and transfers to a brother or sister of the owner who has lived with the owner for at least one year prior to the transfer and who already owns an ‘equity interest’ in the home.

Why should the home be transferred if it is an exempt resource? Even though it is an exempt resource, Medicaid has a right to put a lien on the home for the services provided to the Medicaid recipient. Therefore, even though one will have a right to receive Medicaid and a right to live in one’s home, after the Medicaid recipient’s death, the heirs will likely have to sell the home to pay off the Medicaid lien.

Furthermore, if the Medicaid recipient has to go into a nursing home and there is no spouse or minor / disabled child living in the home, the homestead becomes an available resource. At that point, it will likely have to be sold and the proceeds will be used to pay for nursing home.

Various Types of Transfers That Need to be Considered When Protecting the Home

  1. Outright transfer to a spouse

  2. Outright transfer to children / relatives

  3. Outright transfer with a retained life estate

  4. Transfer to a revocable trust

  5. Transfer to an irrevocable trust with a retained life estate

  6. Transfer to an irrevocable trust

Each type of a transfer has its own Medicaid, legal, asset protection and tax implications. The effect on the Medicaid recipient during his lifetime, the effect on the beneficiaries during the Medicaid recipient’s lifetime, and the effect on the beneficiaries after the Medicaid recipient’s lifetime should be considered.

There is no one correct solution that applies to everyone. Each situation is unique, and the client’s health, family status, resources and goals must be considered. It helps to talk to an elder law attorney, to evaluate the different options, and to understand the implications of your actions.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Monday, March 23, 2015

Consumers are buying less long term care coverage, most likely based on high premiums and uncertainty. However, different options with various benefits are available.

Less Policies Bought: The recent trend is for consumers to buy fewer long term care insurance policies. For those that are still buying them, the policies cover fewer years, provide less coverage, and do not have inflation riders.

Reason: Higher Premium and Uncertain Need. The reason for this decline is most likely the steep increase in premiums for long term care insurance policies. Premiums on existing policies may be rising as much as 25-50% per annum. Premiums for new policies may range anywhere between $2,000 - $6,000 per year. Since a lot of people are unsure that they will ever need long term care coverage, they are reluctant to pay these high premiums for uncertain benefits.

Different Options Available: There are policies available that combine the benefits of a regular life insurance policy with the benefits of long term care polices. In these policies, the money can be used EITHER for long term care, or, if long term care is not needed, the policy will pay out a death benefit to the beneficiaries.  This way, the insured should not feel that he is throwing out good money for something that he may never need, yet he can feels protected that he will have available long term care coverage.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Thursday, March 19, 2015

What is Probate?

Probate is a process that proves to the court that a decedent’s will satisfies all the statutory formalities and reflects the decedent’s wishes. Only after the court is satisfied that the Will is valid, will it grant probate, allow fiduciaries to be appointed and let the directions of the Will be carried out.

Freedom to dispose of assets: In New York, a testator of a Will has almost complete freedom to distribute his assets as he wants. There are, however, a few prohibitions. First, one cannot disinherit a Spouse (unless there was a valid prenuptial agreement or some extraordinary circumstances). One can, however, disinherit some or all of his children, siblings, and parents. Second, one cannot violate public policy through one’s bequests (such as promoting terrorism, encouraging divorce, encouraging racism, etc). Third, one cannot dispose of assets that pass through operation of law (such as jointly owned property).

Reasons for court to deny a will probate: The court can deny probate on the grounds of lack of testamentary capacity, failure of proper execution, fraud, and undue influence.

Finding the Will: If the proponent of a decedent’s will cannot locate it, there may have to be some preliminary steps. Sometimes the draftsman attorney keeps the Will in his office and executor has to contact the attorney. Sometimes, the Will is filed with the Surrogate’s Court. Sometimes the Will is kept in a Safe Deposit box: then a petition to search the deposit box must be filed with the cour, and the safe deposit box must be examined in the presence of a bank office. Sometimes, the Will is kept in the home of the decedent; then a petition to search the apartment must be obtained from the court and the apartment will be searched in the presence of a police officer.

Who can offer the Will for Probate? The proponent of a Will is most often the Executor listed in the Will. However, any person having an interest in the estate, including a legatee or a creditor, may offer the Will for probate.

What must the probate petition include?  

  1. The petition must describe the Will (give the date of the instrument and names of attesting witnesses)

  2. The petition must include the names of all the people who are entitled to receive money under the terms of the will and the names of all the people who would be entitled to receive money from the decedent under the law (if there was no will).  All these necessary parties must either consent to the probate petition, or they must be served with a citation.

  3. The petition must state the size of the estate.

  4. The petition must identify any extraordinary issues.

  5. The petition must prove that the decedent is dead (by attaching a death certificate).

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

Monday, March 16, 2015

Does a lawyer use ‘cookie cutter’ documents when dealing with elder clients? What issues must be considered when formulating a plan of actions?

Someone asked me recently whether or not I use ‘boiler plate’ documents. Another person said “I need a trust”, without a real understanding of what a trust is and why it would be useful. There are many misconceptions about a work of an elder law lawyer, but under no circumstances should a lawyer use a ‘standard’ set of documents (even if such a thing existed). Below are only some of the issues that one must consider when formulating a plan of action:

  1. Is the elder law client married or single?

  2. Health circumstances of the client, and the spouse, if applicable.

  3. Is there an immediate need for a nursing home?

  4. Is the current living arrangement appropriate?

  5. All sources of income of the client and spouse.

  6. All resources of the client and spouse.

  7. Family dynamics. Are there children? Do any of the children or grandchildren have Special Needs? Do any of the children receive government programs? Do any of the children have creditor problems? Do any of the children contemplate a divorce in the near future?

  8. Is the client comfortable with relinquishing control in return for achieving tax or long term care savings?

  9. Veteran status.

  10. Does a client have long term care insurance?

There is no perfect solution that would be appropriate for everyone. That’s why I often do not recommend setting up trusts for my clients, if I do not see a necessity for having this unnecessary complication and if planning can be achieved through other means. On the other hand, a trust may be an absolute necessity in some circumstances. It helps to talk to an elder law attorney, to evaluate the different options, and to understand the implications of your actions.

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Friday, March 13, 2015

Self-settled trusts may not provide asset protection.

Another warning for anyone thinking of using self-settled trusts. A Utah court recently decided that Utah state law should apply to an asset protection trust, even though the stated choice of law in the trust was Nevada.

If the same logic will apply in New York, any local creators of self-settled trusts will be doomed, because New York has a strong policy against self-settled trusts. As a result, any transfer to such a trust my be considered void, and the money may be available for creditors!    As I wrote earlier, there are multiple considerations when choosing a type of asset protection trust to use. Talk to an experienced attorney if you are thinking about asset protection.

http://law.justia.com/cases/utah/supreme-court/2015/20100683.html


Wednesday, March 11, 2015

Planning for Minor Children

Do you have minor children? Planning for the children involves multiple considerations.

1. Who do you want to raise your children if you are gone?

You need to name a “guardian” who will take care of your children in the event of your demise. You should name an alternate guardian, in case your first choice (usually your spouse) is unable to become one. This designation can only be done through a will.

You don’t want your children or your family to go through a custody battle. Stating your wishes clearly in a Will eliminates the courtroom drama.

2. Who do you want to manage the children’s assets while they are minor?

You need to name someone who will take care of the child’s assets while they are minor and potentially afterwards. It can be the same person as the “guardian” but it can also be a different person.  It will be either a “custodian” or a “trustee”, depending on the method used to leave the money.

You can decide whether or not there will be only one custodian or several (depending on how much control you want one person to have). You should not name your spouse as the sole custodian of the minor children’s money.

3. How do you want to split the money between your spouse and your children?

A very common misconception is that when a spouse dies, 100% of his money goes to the surviving spouse. In New York State, this is simply not correct, if there are children involved. Without a will expressing wishes to the contrary, the first $50,000 belong to the surviving spouse, and the remaining assets are split 50 /50 between the spouse and the children.

Do you like this default distribution? If you do not, then you need to write a will, expressing your desires about the percentage of your assets going to the spouse and the percentage going to your children.

4. When do you want your children to receive the money?

Without a will expressing wishes to the contrary, the children will receive all of their money at the time they turn 18 years old. Do you like this default distribution? Some people think that 18 is too young to receive a large inheritance. If you agree, then you need to decide when they children should receive the money and who will manage their assets in the meantime.

You can create a trust for the benefit of your children. The trust will specify at what age and under what circumstances the money will be distributed. You can decide who will manage the money and determine the distribution. You can decide in what proportion the money will be distributed. This trust can be created either during your life or written into a Will, to come into effect only after your demise.

Do not think that you need to have to be rich to have a trust. A $100,000 inheritance placed into the hands of an 18 year old without any limitations or control may spell disaster. With proper estate planning, the same money managed by a responsible friend or a relative can be used to pay for college education or vocational training, establishing a child’s future.  

5. Will the children have sufficient money to live on if something happens to you?

Even if you establish a guardian for your children, consider whether or not that guardian will have sufficient funds to raise your family. Will there be sufficient money for college, summer camps, and extracurricular activities?

If you are unsure of the answer, consider buying life insurance. The proceeds will ensure that your children are provided for until they are old enough to support themselves.

6. Do you have a child with Special Needs? There are many steps you should take when planning for this child’s future.

  • If the child has capacity to execute legal documents, then as soon as he turns 18, he should execute advance directives.  
  • If the child does not have capacity, then prior to the child turning 18, you will need to initiate a guardianship proceeding.
  • Depending on the disability, either an Article 17A or an Article 81 guardianship may be appropriate.
  • Prior to the child turning 18, you need to register with OPWDD (New York State Office for People with Developmental Disabilities), in order to obtain continuing services, assistance with living and additional education after high school.
  • You should consider establishing either a First Party Special Needs Trust or a Third Party Special Needs Trust, depending on your individual situation, in order not to jeopardize the child’s ability to receive government programs.

 

This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Monday, March 9, 2015

Facebook now permits a "legacy contact".

Facebook now allows you to designate a "legacy contact". This is a person who will be able to take over the account in a limited capacity if the user dies.

  • If you do not designate a legacy contact, but name a digital heir in a legal will, Facebook will honor your wish.
  • If you do not do anything, your Facebook account will simply freeze.

http://www.wsj.com/articles/facebook-heir-time-to-choose-who-manages-your-account-when-you-die-1423738802?mod=e2fb


Friday, March 6, 2015

Role of Insurance in Estate Planning

Failure to plan can mean unnecessary hardship for loved ones. The hardship can be financial (not having sufficient money to live on) or emotional (a feeling that the parent treated the children unequally).

Life Insurance

Reasons to have one:

  • For heirs: Immediate cash for payment of debts and burial. Elimination of the possibility of a forced sale of assets that would be needed to generate cash to live on.

  • For businesses: Funds for surviving partners to buy the partnership interest of the deceased partner from heirs.

  • For fairness: if a parent wants to pass on a business (or a real estate investment) intact to one child, the other child may feel left out. In order to prevent one heir from having to buy out interests of the other heirs, a life insurance policy left to the other children may equalize the inheritance.

  • For creation of a larger estate: if there are few assets to leave to heirs, or if the parent wants to increase the money she leaves, a life insurance policy is an easy method of doing so.

  • For funding of a Supplemental Needs Trust. Many parents are worried about what will happen to their special needs children after the parent passes. While the parent is alive, he is caring for and supporting the child. But after the parent's passing, life insurance proceeds placed into a Supplemental Needs Trust for the benefit of a special needs child can assist the child for the rest of his life. The money in this trust can help pay for the child's needs beyond those provided by government programs, including a private care giver, better medication, better living facility, etc.

  • For avoidance of estate tax: COMPLEX STRATEGY: an individual can pay high premiums for a large life insurance policy on his own life. The policy should be owned by an irrevocable trust, preferably with a lot of beneficiaries (to take advantage of the annual gift tax exclusion). By paying high premiums and utilizing the annual gift tax exclusion, an individual gets money out of his estate without having to pay gift taxes. Once the individual dies, the life insurance policy proceeds are out of his estate, no estate taxes are due, and the heirs receive a large inheritance.

Types of Life Insurance:

  • Term Insurance provides financial protection for a limited specified period of time. The policy provides a constant amount of insurance, the annual premiums are fixed, the term of the agreement is predetermined (usually 10 or 20 years). If the premium is not paid, the policy usually lapses. This is the cheapest type of life insurance.

  • Whole Life policy provides a death benefit for the entire life of the insured. There is also a tax-deferred build up of cash values. Premiums can be paid either for a specific period of time or for the life of the insured. You can borrow an amount from the insurance company up to the current cash value of the insured.

  • Universal Life offer flexible premium payments, an adjustable death benefit and cash values that are often tied to current interest rates. There may be beneficial tax treatments.

  • Variable Life builds cash value that can be invested in a variety of separate accounts. Policyholders assume the risk of negative investment performance.

  • Survivorship Life policy insures two lives simultaneously. Policy provides benefits to heirs only after the last surviving spouse dies.

 

There are other common types of insurance that you should consider as part of your comprehensive plan.

  1. Disability insurance. For people between the ages of 25 and 65, the chances of becoming permanently disabled may be higher than chances of dying. If you live in a one income household, you may not want to rely on the employer’s policy, since it may be inadequate or may only apply if you are still working there.

  2. Long Term Care Insurance. This type of policy is expensive. However, given that over 70% of seniors can expect to need long term care (home care or nursing home care) at some point in their life, a long term care insurance policy may be a basic necessity. Without one, the alternative options are Medicaid Planning or using all of your savings to pay for your care.  A long term care rider may now be attached to a whole life policy.

A team of an estate planning lawyer and a financial advisor can give you comprehensive advice for a plan and a policy that is appropriate for you.

This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney client relationship.


Monday, March 2, 2015

What happens with government benefits if one gets an unexpected windfall?

There are many government programs: SSI, Medicaid, food stamps, etc. Most of these programs have thresholds for recipient’s income and assets. What happens when recipients receive an unexpected windfall – inheritance, personal injury award, etc? Can one retain both the money and the benefits? Can one decline the award? The answer depends on the type of benefit in question: 

SSI

Qualification: In order to qualify for SSI, one’s assets cannot exceed $2,000 (if single) and $3,000 (if married). Any uncompensated transfers of assets done within 3 years of SSI receipt will incur a penalty.

Effect of a windfall: if the SSI recipient receives a windfall, it is considered income in the month of receipt, and asset if retained until the next month. Any transfer of the asset will incur a penalty and a disqualification from the benefit. The only exception to this rule is for people who are below 65 and disabled; they are permitted to transfer the windfall to a Special Needs Trust for the benefit of themselves without losing their SSI benefit.

What to do: consider the amount of money received. If the amount is small, you may consider spending the money on yourself in the month of receipt. There are many things that one can do – house improvements, payment of debts, food, clothing, vacation, etc. As long as the money is spent within 1 month, the recipient will retain his eligibility for future months. 

If, on the other hand, the amount is large, you may consider transferring the money to a trust / relatives and then losing the benefit for the next 3 years. The maximum amount of SSI benefit in New York for 3 years is approximately $29,000. If the personal injury is $500,000, the loss of $29,000 is not that significant.

 

Medicaid

Qualification: depends on the age of the recipient and the type of Medicaid care that one is receiving.

If below age 65, not an SSI recipient and no disabilities, Medicaid considers only one’s income. Assets are not considered. Income thresholds depend on the number of people in the family and whether or not there are children.

If after age 65, Medicaid considers both income and assets. An individual’s assets cannot exceed $14,750 and income cannot exceed $825 per month.

Asset transfers: If one receives only home care or medical care, then Medicaid does not impose a penalty on asset transfers. On the other hand, if one is in a nursing home or will apply for nursing home care in the next 5 years, Medicaid imposes a penalty of up to 5 years. 

Effect of a windfall: If a Medicaid recipient receives a windfall, it is considered income in the month of receipt, and asset if retained until the next month. If one is below 65, one may either retain the asset or transfer it, and retain his eligibility for the future months.

What to do: If a Medicaid recipient is above 65, consider the amount of money and the type of care that is needed. Generally, seniors depend on Medicaid as their medical insurance, therefore retaining the assets and losing the benefit may not be an optimal solution. Consider first spending the money on your immediate needs (paying down debt, house repairs, etc). Then consider transferring the remaining money. Remember that if nursing home is needed in the 5 years after the transfer, Medicaid may impose a penalty and deny the benefits.

This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney client relationship.


Saturday, February 28, 2015

Poder notarial - un documento importante que cada adulto debe firmar

 ¿Qué es? Un poder notarial es un documento que da a otra persona ( su agente ) la autoridad para tomar decisiones legales y transacciones en su nombre.

¿Por qué es necesario? Si una persona pierde la capacidad de actuar en su propio nombre, a continuación, el agente puede actuar en su nombre . Si no hay un poder firmado, tendrá que ser iniciado por un Tribunal Testamentario para obtener un tutor legal designado a un procedimiento de tutela - algo que consume mucho tiempo, es muy intrusivo, y también un procedimiento costoso.

¿Quién debe ser nombrado como mi agente ? A menudo, los cónyuges se nombran como sus principales agentes . Si usted tiene hijos mayores de edad , uno de ellos puede ser nombrado como agentes sucesores. Si no hay hijos mayores de edad , un padre competente , un pariente o un amigo puede ser nombrado como el agente . Usted puede nombrar a más de una persona para actuar como agentes simultáneos , y especificar si desea que actúen juntos o separados . Lo más importante es nombrar a alguien a quien usted pueda confiar.

¿Cuándo se hace efectivo? Un poder notarial duradero se hace efectivo de inmediato al firmar el documento . A menudo , ya que el documento se hace como parte de la planificación general, el documento firmado se mantiene en posesión del autor , junto con otro documento de planificación de sucesión . De esta forma , sólo si el autor pierde capacidad, su agente podrá obtener el documento y utilizarlo.

¿Qué tipo de poderes tiene mi agente sobre mis asuntos ? Usted tiene la capacidad de controlar la situación. La forma legal tiene una lista de los poderes que un agente pueda tener. Un abogado competente tendrá una forma que tendrá poderes adicionales que se pueden conceder . El poder más eficaz del abogado es el que otorga las más amplias facultades , porque no se puede anticipar el futuro. Sin embargo, si usted se siente incómodo con la concesión de su agente de todos los poderes , puede especificar cuáles desea ceder. Este es un documento muy importante , uno que le da a otra persona el control sobre su vida financiera , y es por eso que es muy importante que lo firme delante de un abogado competente que pueda explicar las implicaciones de las diversas disposiciones .

¿Qué puede el poder no se utiliza? El poder no se puede utilizar para tomar decisiones de atención médica en su nombre . Con el fin de designar a un representante de atención médica , debe firmar un Poder para la Atención de la Salud, un documento completamente separado.

¿Cuándo se vence el Poder? Hay 2 maneras en que el documento se expira . Primero, usted puede revocar su poder de abogado en cualquier momento de su vida , con tal que usted tenga la capacidad mental para hacerlo. Segundo , el poder legal se expira inmediatamente después de que uno muere. Al igual que uno no puede hacer negocios jurídicos después de la muerte , su agente también pierde toda su autoridad para actuar en su nombre después de que usted muera.

Es el documento objeto de abusos ? Absolutamente . Con la firma del documento , le está dando a otra persona el acceso a sus cuentas financieras y de sus propiedades . Es por eso que su agente debe ser alguien de confianza para actuar en su mejor interés.

Este artículo sólo se ofrece información general. Cada situación es única . Siempre es útil hablar con un abogado especializado, para averiguar sus diferentes opciones y consecuencias de las acciones . Como cada caso tiene diferencias sutiles , por favor no utilice este artículo para obtener asesoría legal. Sólo una carta de compromiso firmada creará una relación de abogado-cliente.


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