New York Estate Planning & Elder Law Blog

NAELA Journal Article on Future of Medicaid

Published on: April 18, 2013 | by Ettinger Law Firm

It can can a confusing, scary, and stressful time for all New Yorkers who use the Medicaid system for necessary health care or for those who suspect they may need it down the road. Not a day goes by that news does not break at either the state or national level regarding payment cuts, service trimming, changes to qualifications, and more.

Considering the complex political dynamics involved in any major decision regarding the New York Medicaid system, it is next to impossible to make predictions with certainty. But many experts in the field are more than eager to share their ideas about what the program might look like in the future.

For example, some may be interested in a recent article a the journal published by the National Association of Elder Law Attorneys (NAELA). Entitled “Whither Medicaid,” the comprehensive article takes a look at all of the major notions about how Medicaid might disappear in coming years and how it may be saved via different alternative arrangements. The article can be read for free online in it’s entirety here.

New Case: Inheritance Rights of “Adopted Out” Children in New York

Published on: April 17, 2013 | by Ettinger Law Firm

A case recently came before a New York court that delved into a very unique inheritance issue. The case, Matter of Svenningsen involved the inheritance rights of “rejected” adopted children. “Rejected” is a harsh word, but refers to children who were adopted and whose adopted parents terminate parental rights. It is a rare occurrence, but various health issues or circumstantial factors may make such change in parental rights necessary in some cases.

The circumstances in the Svenningsen case are somewhat complex. Essentially, a New York family adopted a child, Emily, from China in 1996. The family had executed a trust in 1995 the had specifically included adopted children. A second trust was executed in 1996 that specifically named Emily. Sadly, the patriarch of the family died the following year, in 1997.

Eventually, Emily began attending a boarding school for children with special needs. Apparently Emily developed a close bond with those working at the school. As such, several years later, in 2003, Emily’s adopted mother agreed to terminate her parental rights under the assumption that Emily would be adopted by one of the director’s of her boarding school. No mention of Emily’s trust was provided during that second adoption hearing.

Federal Estate Tax — Back on the Agenda?

Published on: April 12, 2013 | by Ettinger Law Firm

Earlier this week we touched on the fact that estate tax issues need to be on all New Yorkers’ radar, because the state tax kicks in at a far lower level than the federal tax. The federal rate was seemingly fixed as part of the compromise legislation that averted the “fiscal cliff” earlier this year. While any law can be changed, the passage of this legislation was assumed by most to signal some level of finality on the matter. Debate had raged for months (even years) about the exemption level and rate. The uncertainty was a challenge for estate planners, because it is more difficult to craft complex protection plans when the tax rules are a moving target

In that vein, regardless of one’s own opinion of the estate tax, passage of the compromise bill was a welcome relief–offering stability. But that stability may be short lived, as proposals about changing the federal estate tax have are already making their way back into national political discussions.

Here We Go Again

Don’t Forget: There is a New York Estate Tax on Top of Federal Tax

Published on: April 10, 2013 | by Ettinger Law Firm

Much discussion at the end of last year dealt with the estate tax. As federal officials groped for a compromise to avoid the so-called “fiscal cliff,” details about the federal estate tax were one part of the negotiations. Democrats wanted it returned to levels during the Clinton Administration while Republicans wanted it eliminated altogether.

Just before the deadline, a law was passed which apparently settled some of the matters of contention. In so doing, it seemed to finally provide some permanence to the federal estate tax. The tax rate now tops off at 40% (a jump from the previous 35%) and begins on parts of the estate over $5.25 million. The exemption level is pegged to inflation, and so it will rise slightly each year.

With news of this new estate tax compromise (and its relatively high exemption level), many have pointed out that the federal tax is now only a concern to a small slice of the population. After all, the majority of residents will not die with assets over $5.25 million, and so estate planning to avoid that federal tax is unwarranted.

Washington Post Article on Family Struggles in Dividing Up Assets

Published on: April 5, 2013 | by Ettinger Law Firm

A recent Washington Post article discussed the lethal combination of family and finances. The author recounts how even the most close-knit families can be torn apart by disagreements about money matters. The article included one reader to wrote a letter offering an example of how his parent’s will is causing tension and turmoil.

The letter was written by an adult son who was asked by his parents to assist with their estate planning. He was named executor and helped with locating financial documents. The son saw a copy of the will after it was completed, noting that it left assets to a few charities and then split the remaining estate between himself and his one sibling–a sister. This represents a pretty common situation, with families assuming that such a simple estate plan and division will not come with any disagreement.

But then a few years later the parents updated their will. Instead of splitting the assets between their two children, they decided to split it in thirds. Their two teenage grandchildren (from their daughter) will receive a third, and the two adult children will each receive a third. The son noted with shock that his share suddenly went from one half to one third.

Find the Right New York Assisted Living Facility

Published on: April 2, 2013 | by Ettinger Law Firm

If stereotypes are to be believed, all living arrangements outside of the home are mired in neglect, confusion, and unhappiness. Virtually no one claims that they want to move into a nursing home or assisted living facility, and many assume that leaving one’s house is only done at the last possible minute and often under duress.

This sort of generalizing about the “horrors” of senior care facilities is often misplaced. There are certainly many low-quality homes and individual residents who despise their living situation. But that is not at all to say that every facility–or even a majority–are like that. The truth is that there are many homes that allow residents to thrive, providing support so that their daily lives are more fulfilled than before, when they lived in their own home (often alone) and without necessary assistance with day to day tasks.

On that topic, a recent New York Times “New Old Age” blog post provides some interesting first-person discussion with one of the nation’s “foremost advocate for people living in assisted living,” Martin Bayne.

Effect of Presidential Budget on Estate Planning

Published on: March 29, 2013 | by Ettinger Law Firm

Nothing about the law is every entirely static. Obviously legal rules and principles change over time. However, some practice areas are far more stable than others. For example, the general process to recover for personal injuries in a car accident are roughly the same now as in the past. At the other end of the spectrum, certain estate planning processes can change virtually every year. That is because much of this planning is centered on tax savings. In that way, it mirrors applicable tax rules, and any change in those rules requires changes in estate planning details.

Possible Changes

For example, consider the estate planning changes that may need to be made if the latest presidential budget proposals are enacted. Financial One recently shared information on those possible alterations. The President’s proposed 2013 budget includes some so-called “tax loophole” closings which may alter what planners do for future clients.

Long Term Care Insurance: A Battle of Money & Emotions

Published on: March 28, 2013 | by Ettinger Law Firm

This week the New York Times published a story that will likely ring true to all those who have gone through the process of helping a loved one figure out how to secure the ideal long-term care. It is one of those issues that is easy to talk about in the abstract but that comes packed with intense emotion when one is actually thrust into it and forced to help those closest to them.

One of the scariest aspects to this situation is that it can arise virtually overnight. The NYT story shares the example of one man whose 81-year old parents seemed to go from swimming and playing sports to both becoming frail the next day. Their ailments struck at the same time. His mother developed dementia and passed away within a year of first falling ill. This left the family in a very tough spot. In the midst of grief, they had to make tough choices about how to ensure their father had proper care. Fortunately, the family was in a much better position than many, because the patriarch had purchased a long-term care insurance policy nearly three decades before. That insurance has been able to provide at-home caregivers for the last two years.

That is a key reason why the NY elder law attorneys at our firm encourage families to use long-term care insurance when possible while crafting long-term care plans.

Family Feuding Over High-Profile East Coast Cavern Dynasty

Published on: March 25, 2013 | by Ettinger Law Firm

Infighting over control of family assets is far from uncommon no matter the value of the holdings. History is replete with examples of siblings, step-relatives, and other engaged in estate battles over property that has little to no value. Of course, that is not to say that the possibility a disagreement increases with the value of the property. Things can get especially sticky when things like family businesses, land holdings, and other tangible and valuable items are at issue. Many of these assets may have been within a family for decades (or generations) and fighting over control is quite predictable, especially when estate planning is inadequate.

For example, the Wealth Strategist Journal reported recently on the battled over control of supposedly the largest underground series of caves in the eastern United States–Luray Caverns. The caverns are incredibly popular, and it is reportedly the third most visited cave in the country. Considering its popularity, the location has grown into a significant business for the family which owns it. A Washington Post story notes how the cave has been open to the public for nearly 130 years. At $24 for a one-hour tour, the business of showing the cave is estimated to bring in about $30 million annually.

Unfortunately, control over the caverns is apparently is disarray as the family in charge seems perpetually mired in controversy. The Post story explains how two of the family siblings recently sued two others in an attempt to disqualify them for participating in a family trust. In total, control of the caverns rests with six children bore of a family patriarch who died in 2010 at the age of 87.

Audit Raises Questions About New York Medicaid Financial Situation

Published on: March 22, 2013 | by Ettinger Law Firm

Reuters published a story this week on the latest audit of the New York Medicaid system which has given leverage to those hoping to use financial worry to trim the system and the state budget overall.

We have previously discussed the audit by the Centers for Medicare and Medicaid Services which found that the federal government overpaid the state by billions of dollars in recent years. The actual audit is still not yet complete, but federal officials are set to conclude by the end of this month. It is only then that the full scope of the situation will be known and the effect considered. The story notes how the overpayment may ultimately wreck havoc on the state’s financial health just as some were hoping things were finally settling down.

All of this has placed a pall over the current work in Albany where legislators are working to approve the state’s next budget–around $140 billion.