New York Estate Planning & Elder Law Blog

Myths About Estate Planning

Published on: November 21, 2024 | by Ettinger Law Firm

The first myth to explore about estate planning is that you can do it yourself over the internet. This supposes that a trust is a generic legal document where you plug in names, addresses and amounts you want to give and then off you go! However, experienced estate planning lawyers will tell you the job is ninety percent social work and only ten percent legal.

Most of the time we spend with clients involves going over the social aspects of the estate plan. First, who should be in charge of your legal and financial decision-making in the event of death or disability? One person or more than one? Should they be required to act together or may they be permitted to act separately? How are the other family members going to feel about these choices? Who gets along with whom? What are my options and what do other people do and why? You need to be in a position to evaluate pros and cons and there’s no counselling on the internet.

Getting an estate plan from out-of-state is fraught with other pitfalls. Take the New York form of power of attorney, for example. In our experience, even trained lawyers often make major errors in drafting and executing the complex New York form of power of attorney. What chance does a lay person have to get it right?

Planning for Single Relative Living Alone

Published on: November 8, 2024 | by Ettinger Law Firm

If you have a son, daughter, sister, brother or parent living alone for whom you are responsible, and they unfortunately become incapacitated or die, apart from the emotional and medical burdens, you may have significant legal and financial troubles. A little planning in advance for these contingencies will go a long way in making any such dire situation much easier to handle.

If they rent, then make sure they notify their landlord, in writing, that you have their permission to access the apartment. Also get a key to their apartment or home or at least know where you can get one (such as from a neighbor).

A power of attorney will allow you to handle their legal and financial affairs during any period of disability. However, a power of attorney automatically ceases on death. Once someone dies, only the executor under the will may handle legal and financial affairs and it may take months and sometimes years to become appointed executor by the Surrogate’s Court. A properly created and funded living trust, on the other hand, gives you immediate control of their affairs upon death.

Home Care with Community Medicaid

Published on: October 30, 2024 | by Ettinger Law Firm

To qualify for community based Medicaid, meaning receiving medical care in the home, an individual cannot make more than $1,752 per month and a married couple cannot make more than $3,853.50 per month. Obviously, these minimal income standards make it very difficult to qualify for community Medicaid. However, applicants can “spend down” excess income to meet the Medicaid income requirement.

Also, an individual cannot own more than $31,175 in assets and a married couple cannot own more than $74,820 in assets. There are two ways to spend down income. First, the applicant can reduce the income by paying for caregiving and other medical expenses. Second, the income can be reduced through the use of a “pooled income trust” where participants deposit their funds in a general trust, each with their own sub-account within the pooled trust.

A pooled trust, which is available in all states, must be run by a non-profit organization, and exists for elderly and disabled individuals for the purpose of supplementing the participants’ needs beyond government benefits. In the case of people who may not qualify for community Medicaid because of excess income, the pooled trust can allow them to stay at home, also known as “aging in place.”

Leaving an IRA to a Trust

Published on: October 10, 2024 | by Ettinger Law Firm

An IRA may not be transferred to a trust without causing the whole IRA to be taxed. The “I” in IRA stands for “individual” — it must be owned by a single person. In practice, there is no need to transfer an IRA to a trust since IRA’s avoid probate by having a “designated beneficiary” and the principal of an IRA is exempt from being “spent down” for your long-term care needs. However, an IRA may be left to a trust. In other words you may name a trust as a designated beneficiary of an IRA.

There are many reasons why one would want to leave an IRA to a trust. The beneficiary may be a minor, they may be irresponsible, have substance or alcohol abuse issues, learning disabled, special needs, dominated by a spouse, facing divorce or bankruptcy, or you may simply want to control where the IRA money goes if your designated beneficiary dies before the IRA is completely distributed. Similarly an IRA is often left to the Inheritance Protection Trust to protect it from your child’s divorces or creditors and to keep the asset in the bloodline.

There are two types of trusts that may be named a beneficiary of an IRA — “conduit” trusts and “accumulation” trusts. A conduit trust simply acts as a conduit of the ten year payout under the SECURE Act. In other words, whatever is taken from the IRA must be distributed immediately to the trust beneficiary, the trust acting as a conduit only.

Elder Law Estate Planning Misconceptions

Published on: September 27, 2024 | by Ettinger Law Firm

One of the most common and devastating misconceptions about elder law estate planning is that it is too late to save money from nursing home costs. On the contrary, there are crisis planning tools that may save substantial assets from being spent on nursing home costs, even after the client has already entered the nursing home. Almost always, if there are assets left, much can be saved.

There are only three ways to pay for nursing home costs – your own assets, long-term care insurance (owned by less than five percent of the population), or Medicaid provided by the government.

Many people know about the “five-year look-back period” and assume nothing can be done without advance planning. The five-year look-back rule means that if you gave any gifts away within the last five years, when asking for Medicaid to pay for nursing home costs, the gift amount creates a penalty period, which results in a period of ineligibility for Medicaid coverage.

Taking Back Control with a Living Trust

Published on: August 23, 2024 | by Ettinger Law Firm

In the fall of 1990, some thirty-four years ago, your writer first heard of the proposition that if you set up a living trust your estate doesn’t have to go to court to settle – the so-called probate court proceeding for wills. Having spent the previous eleven years as a litigation attorney, and having faced numerous problems probating wills, this sounded too good to be true.

At the time, some of the best estate planning lawyers were in Florida. Perhaps you can guess why. In any event, off I went to Florida to train as an estate planning lawyer and, upon returning, closed the litigation practice and founded Ettinger Law Firm in April 1991, to keep people just like you, dear reader, out of probate court.

The reason I was so excited about the living trust, and continue to be so to this day, is the concept of taking back control from the courts and government and giving it back to you and your family. After all, who doesn’t want control over their affairs?

Protecting Your Future

Published on: August 9, 2024 | by Ettinger Law Firm

“Protecting Your Future” has been Ettinger Law Firm’s slogan since we began in 1991. These words have deep meaning to us and our clients. Following are the eight ways an Ettinger Elder Law Estate Plan protects your future:

Makes sure your assets go to whom you want, when you want and the way you want. This can be all at once, at stated ages, managed by someone re responsible, leaving someone out and preventing them from challenging, protecting heirs from themselves, etc.

Takes a social approach to estate planning by fleshing out potential sources of conflict ahead of time and taking steps to prevent discord and preserve family harmony.

Second Marriage Planning

Published on: July 12, 2024 | by Ettinger Law Firm

In second marriage planning, a co-trustee is sometimes recommended on the death of the first spouse. While both spouses are living and competent they run their trust or trusts together. But when one spouse dies, what prevents the other spouse from diverting all of the assets to their own children? Nothing at all, if they alone are in charge. While most people are honorable, and many are certain their spouse would never do such a thing, strange things often happen later in life. A spouse may become forgetful, delusional or senile or may be influenced by other parties. Not only that, but the children of the deceased spouse tend to feel very insecure when they find out their stepparent is in charge of all of the couple’s assets.

If you choose one of the deceased spouse’s children to act as co-trustee with the surviving spouse there is a conflict that exists whereby the stepchild may be reluctant to spend assets for the surviving spouse, because whatever is spent on that spouse comes out of the child’s inheritance. Then what if stepparent gets remarried? How will the stepchild trustee react to that event? What if it turns out the stepchild liked the stepparent when his parent was living, but not so much afterwards?

Here is where the lawyer as co-trustee may provide an ideal solution. When one parent dies, the lawyer steps in as co-trustee with the surviving spouse. The lawyer helps the stepparent to invest for their own benefit as well as making sure the principal grows to offset inflation, for the benefit of the deceased spouse’s heirs. The stepparent in this case takes care of all their business privately with their lawyer. The trusts cannot be raided. These protections may also be extended for IRA and 401(k) money passing to the spouse through the use of the “IRA Contract”. Surviving spouse agrees ahead of time that they will make an irrevocable designation of the deceased spouse’s children as beneficiaries when the IRA is left to the surviving spouse, and further agrees that any withdrawals in excess of the required minimum distribution (RMD) may only be made on consent of the lawyer.

Book Review: “SuperAging” by David Cravit and LarryWolf

Published on: June 26, 2024 | by Ettinger Law Firm

Subtitled “Getting Older Without Getting Old” this new book starts with the premise “…imagine bringing a whole lifetime of knowledge, experience, skills, talent, relationships, wisdom (and, let’s face it, money) to two or three more decades ahead of you in which to leverage all those assets into an ongoing wonderful experience.” With the Baby Boomer generation far outliving and “outhealthing” any prior generation, we are in the era of the “superager”, founded upon seven pillars.

Attitude: Believing in exciting new possibilities, optimism is a major life extender. Purposes and goals are a result of an active curiosity about the potential for the gift of these years. Practice a positive thinking booster program everyday. Search for “positivity apps” and get daily positive quotes. They work!

Awareness: Whereas older adults previously accepted the advice of professionals as gospel, today’s superagers are avid consumers of information. The challenge today is the approach to information gathering and the curating of the “informational torrent”. Tips and techniques for searching and filing your information are provided.

Medicaid Asset Protection Trust (MAPT) v. Life Estate Deed

Published on: May 3, 2024 | by Ettinger Law Firm

Clients often ask whether the home should be deeded to the client’s adult children, while retaining a life estate in the parent or whether the Medicaid Asset Protection Trust should be used to protect the asset.

While the deed with a life estate will be less costly to the client, in most cases it offers significant disadvantages when compared to the trust. First, if the home is sold prior to the death of the Medicaid recipient, the life estate value of the home will be required to be paid towards their care. If the house is rented, the net rents are payable to the nursing facility since they belong to the life tenant. Finally, the client loses a significant portion of their capital gains tax exclusion for the sale of their primary residence as they will only be entitled to a pro rata share based on the value of the life estate to the home as a whole.

All of the foregoing may lead to a situation where the family finds they must maintain a vacant home for many years. Conversely, a properly drafted MAPT preserves the full capital gains tax exclusion on the sale of the primary residence and the home may be sold by the trust without obligation to make payment of any of the principal towards the client’s care, assuming we have passed the look-back period for facility care of five years.