Elder law estate planning

The Importance of a Will: The Differences in the Estates of David Bowie and Prince

Published on: November 19, 2016 | by Ettinger Law Firm

David Bowie’s Estate

This year, we lost two music icons. While the death of Prince came as a surprise to the music community, David Bowie lost his battle with cancer. It was not surprising that David Bowie’s estate was left with almost $100 million dollars, a very large sum of money that was all properly distributed according to the terms of his will. Bowie outlined his wishes in his will, that was made over a decade ago, which even stating how he wanted to be cremated. The star died on January 10th, 2016, and in accordance with the terms of his will, his last wishes to be cremated were followed, on January, 12th. The will not only outlined how to distribute the estate, but also how and when funds set aside in trusts were to be distributed to his wife and children.

Additionally, the making of this will has provided a straightforward method to determine how future earnings from his music, past as well as unreleased, will be distributed. Bowie recorded a final few songs which are set for release at specific times in the future.

How to Disclaim Inheritance

Published on: October 4, 2016 | by Ettinger Law Firm

Claiming inheritance upon its distribution is something that many individuals welcome and conversely is the source of many family disputes. There are many reasons why someone may want to refuse their bequest however, in a process in estate planning referred to as disclaiming inheritance. Some beneficiaries seek to disclaim their inheritance due to their personal wealth, whether wealthy or poor, for tax reasons, or to pass the gift on. In estate planning, if you decide to disclaim your gift or bequest, you will be treated as if you died before the grantor did, and your share is redistributed according to the terms of the will.

Examples of Why You May Consider Disclaiming

Estate taxes can be particularly hefty and if disclaimed, the gift or bequest would pass to the next of kin, who may be more willing to take on the potential tax burden. In years past, disclaimers have been used a stopgap measure after the estate tax expired in which the first million in assets valued from an estate is exempt and assets thereafter is levied at 55%. Once the tax expires, there are sometimes unintended consequences which end up negatively impacting the estate of the beneficiaries.

Back to the Basics – Do Not Resuscitate Orders

Published on: July 28, 2016 | by Ettinger Law Firm

Advance Directives

When determining the type of health care you wish to receive in the event that you are no longer able to make medical decisions, advance directives give you the ability to determine when you will continue or cease to receive medical care, the kinds of care or treatment that are acceptable, as well as who has the power to make health care decisions on your behalf as your health care power of attorney/health care proxy. There are a few different types of advance directives, we have previously discussed the health care proxy roles in medical decisionmaking as well as the importance of living wills. Although the names and regulations vary by state law, there are also Medical Orders for Life Sustaining Treatment forms, as well as Do Not Resuscitate Orders that patients can fill out in order to refuse or request medical care.

DNR Orders

Two Wills, Two Different Countries

Published on: June 25, 2016 | by Ettinger Law Firm

International Will Issues

As our world continues to grow and technology allows us to move places once never thought imagined, many individuals have the opportunity to live abroad throughout the course of their lives. After spending time in a specific area, whether it is for the majority of your life or for a shorter time, you may acquire property in that new place. However, when it comes to estate planning, issues may arise for a citizen who has acquired property in another country and has executed multiple wills for their multiple properties.

If you have property in another country, having a will in that jurisdiction disposing of that property generally will make it easier than if the property’s disposition is listed in a will in a different country, since it will increase the efficiency of estate administration for the property in that jurisdiction. However, if the testator has multiple wills in multiple countries, covering multiple pieces of land, he must write the most recent will in a way as to not revoke the previous foreign wills and subject the land to differing dispositions.

SPECIAL NEEDS TRUSTS AND GOVERNMENTAL BENEFITS

Published on: May 12, 2016 | by Ettinger Law Firm

CERTAIN LIMITATIONS ON SPECIAL NEEDS TRUSTS

Last year a case out of the Western District of Massachusetts Federal District Court dealt with the interplay of a special needs trust and eligibility for certain governmental benefits that the special needs trust was supposed to address. The case of DeCambre v. Brookline Housing Authority dealt with the beneficiary of a valid special needs trust who applied for a section eight housing voucher but was denied because of income that she received from a third party special needs trust, established by a Court. Ms. DeCambre was involved in a catastrophic accident which resulted in a series of settlements, with the proceeds directly deposited into the special needs trust. She received a total of $330,000.

The trust did not earn any income of it’s own, the truste only distributed the income in line with the terms of the trust and charged the normal and typical trustee fees. Ms. DeCambre did not have any control over the distribution of the income or money in the trust. The Court noted that the special needs trust was indeed valid and in conformity with the special needs trust enabling statute, found at 42 U.S.C. § 1396p(d)(4)(A) and (C). Indeed, the Court noted that Ms. DeCambre benefited from this trust insofar as she received Supplemental Security Income of approximately $850 per month and validly received Medicaid. These programs, the Court noted, specifically excluded the income from the a valid special needs trust. Ms. DeCambre applied for a section eight housing voucher through the Department of Housing and Urban Development (HUD) in 2005. The voucher was approved and provided from 2005 through to 2012, when HUD reduced it by approximately $1,000 per month, based on her income from the special needs trust. Ms. DeCambre sued HUD in Federal Court on several statutory grounds, based on HUD’s decision to reduce the amount of her housing voucher.

LONG TERM CARE THROUGH LIFE INSURANCE POLICY

Published on: March 10, 2016 | by Ettinger Law Firm

CONVERSION OF LIFE INSURANCE DURING LIFE OF COVERED INDIVIDUAL

As this blog discussed in the past, long term planning insurance is something that many consumers are reluctant to purchase for a number of reasons One of the main reasons for this reluctance is the long term cost may not financially justify its utilization. Life insurance companies recognized this problem and started to allow for a hybrid financial product in their life insurance policies. The life insurance company allows for the conversion of a life insurance policy to pay for the long term care services.

The animating philosophy is that there will be a pay out regardless of whether or not it happens during the insured’s lifetime, so the life insurance company could just as easily pay out on the policy during the insured’s life. Every day over 10,000 baby boomers turn 65, so the population base that could potentially utilize such as a product is growing larger every day. It is estimated that at least 70 percent of the baby boomer population will need some sort of long term care during their lifetime, with 40 percent in need of nursing home treatment.

TOOLKIT TO HELP PREVENT SENIORS FROM FALLING

Published on: March 8, 2016 | by Ettinger Law Firm

SIMPLE GUIDELINES, EASY TO UNDERSTAND AND FOLLOW

The Center for Disease Control (CDC) released guidelines to help prevent and mitigate falls among senior citizens in 2012. The CDC program is called STEADI, an acronym coming from the full title Stopping Elderly Accidents, Deaths and Injuries. Research shows that falls are the leading cause of injuries, death and emergency room visits for trauma. If a senior citizen falls it can literally be a traumatic, life altering event or even a deadly one. The silver lining is that many falls are preventable. Last year the Obama Administration announced that that the White House Conference on Aging, the Administration on Aging awarded $4 million in various grants to help expand STEADI. It is estimated that the increased funding will help reach an additional 18,000 at risk senior citizens. It is further hoped that the funding will increase participation in evidence based community programs and improve the overall programs long term viability. The CDC developed these guidelines in conjunction with British and American Geriatric Societies.

The American and British Geriatric Societies already had clinical practice guidelines in place to better define the various risk factors in falls by senior citizens. The CDC guidelines contain basic information about falls, methods to begin conversations with seniors, balance assessment tests, gait assessment tests along with instructional videos for the gait and balance tests and even case studies of the the fall risks for different senior citizens. The program and recommendations are all inclusive in that the STEADI program at the CDC website has a testing protocol for professional medical care providers, to information about webinars and other instructional videos, material for senior citizens themselves, important facts about falls, referral forms, posters for professional establishments, with posters also available in Spanish and Chinese and most importantly, it has a toolkit for medical professionals.

PERSONAL INJURY AND MEDICAID: WHY WOULD STATE GET INVOLVED IN PERSONAL INJURY SETTLEMENT?

Published on: March 1, 2016 | by Ettinger Law Firm

It is a fortunate state of affairs that it is happening less and less, with the requirement for every American obtain health insurance under the Affordable Care Act (often called Obamacare), that some people do not have proper health insurance coverage for a catastrophic injury. It is still unfortunate that is happens often enough. As such, either a loved one or when you are well enough retain an attorney in a personal injury suit against the offending party or entity for your past pain and suffering, future anticipated pain and suffering and future medical bills.

Most personal injury attorneys know that any settlement or jury (or even judge if the matter proceeded to trial without a jury) award should earmark or indicate the amount of the award or settlement for your future medical expenses because the government will get involved and assert a lien over any financial award for medical expenses. This overall schema enables you to effectuate a meaningful change in your life, by satisfying the state’s obligation to recoup its medical costs and leaves some money to you to live at a level above the basic minimum that medicaid insures.

It must be asked, however, what of the cases where there is no designation of the settlement or verdict that speaks to the amount awarded for medical expenses and what is pain and suffering or other line awards. Both Congress and the Federal Supreme Court dealt with these issues. Congress enacted 42 U.S.C. § 1396p(a)(1) as part of the Social Security Act that prohibits the government from asserting a medicaid lien against the property of a medicaid recipient, except under certain clearly delineated circumstances. One of those delineated circumstances is when the state may seek recovery for “any medical assistance correctly paid”. The Supreme Court dealt with this issue in 2013, in the case of Wos v. E.M.A. when it ruled that a state may only asset a medicaid lien against that portion of a personal injury settlement or verdict that is specifically designated for medical expenses.

SPECIAL NEEDS, THIRD PARTY AND SELF SETTLED TRUSTS – WHATS WITH ALL THE NAMES?

Published on: February 17, 2016 | by Ettinger Law Firm

LEGAL DISTINCTIONS THAT MATTER

When a person applies for Medicaid eligibility there are many pitfalls that an unsuspecting or unsophisticated applicant can run afoul of. To help them retain the benefit of certain monies that they would normally have access to third parties or the applicant themselves can create a special needs trust to help keep the public benefits and still benefit from the money in the trust. The various different trusts have different legal requirements that must be met to qualify as that type of trusts.

Moreover, different trusts accomplish different goals and yet other types of trusts exist that have nothing to do with Medicaid or other public entitlement program eligibility but help to reduce tax liability. Some trusts accomplish two tasks, such as a third party special needs trusts, which allow seniors to live a relatively modest and respectable life and qualify for Medicaid at the same time. While other types of trusts only satisfy just one legal goal, such as a grantor retained annuity trust, which allows a person to make a gift of an asset that will likely appreciate rather quickly, but incur no gift tax liability. Finally, there are other types of trusts that outlive their utility, such as pooled trusts.

PLANNING FOR YOUR SPECIAL NEEDS LOVED ONES

Published on: February 15, 2016 | by Ettinger Law Firm

CREATE A GLOBAL PLAN TO GO INTO EFFECT TODAY

If you are a parent, stepparent, grandparent or caretaker of a special needs child you need to prepare for the day when you are no longer able to physically and financially care for your special needs loved one. While it is not suggested that you stop caring for the special needs loved one today, there is no better time than to start your planning than now and to actually try it out, so as to cure any unanticipated issues now while you still have the mental, emotional and financial wherewithal. First on the list of priorities is to find a standby guardian who can step in and care for your loved one without complication, so as to insure a seamless transition. Better still is to have two caretakers who can assume responsibility for the day to day needs of your special needs loved one. This blog has discussed the wisdom and utility of a standby guardian.

While it is essential for you to discuss these plans with any standby guardian and alternate standby guardian, as any legal responsibility to assume guardianship requires the consent of the standby guardian, it is always best to discuss these decisions with your loved one. Many autistic children do not deal with change very well. As such, having the standby guardian come in to run the show and do what you do on a daily basis is best. The same applies for any alternate standby guardian. It would also be best to discreetly disclose your financial planning, income and expenses with the standby guardian as well as any alternate. Any monies coming in from public agencies or even benevolent societies as well as a review of key service providers would be necessary for the standby guardian to understand if you become incapacitated, disabled or otherwise unable to provide the same level of care that you currently provide for your special needs loved one.