New York Estate Planning & Elder Law Blog

Farm Families Reminded of Need for Estate Planning to Smooth Transition to Next Generation

Published on: April 6, 2012 | by Ettinger Law Firm

Over the past few months there has been a surge in awareness efforts by agricultural publications around the need for farm families to take estate planning seriously. For example, late last week Agri-View published an article re-emphasizing the need for families to get serious about their succession planning if they would like to preserve their farm for generations to come. Our New York estate planning lawyer appreciates that the principles outlined in the article can be applied to contexts outside of farm families and are apt for all families with small businesses which may wither without proper preparation for transitioning from one generation to the next.

The article reminds readers that a succession plan is not the same thing as an estate plan. The estate plan is best viewed as one part of the process to prepare for business transitioning. The overall succession plan in not a one-time event–it is a gradual process that is completed with consultation with a variety of professionals, including estate planning lawyers. The estate planning component of the process will strategize ways to transfer assets to ensure tax savings and a smooth transition of property and responsibilities to younger generations.

Getting legal documents in place is just the beginning. In addition, the succession planning process will also involve the family elders answering questions about what they’d like their future to hold. For example, the older generation of the farm family should think seriously about what they’d like to do when their time isn’t filled with farming. The answer to this and similar question will dictate how much money will be needed to meet those goals in retirement. From there, concrete strategies can be crafted which provide the older generation with needed resources while preserving the younger generation’s ability to inherit and continue family business endeavors in the future.

Alzheimer’s Association Focuses on Providing Senior Care Assistance & Support

Published on: April 5, 2012 | by Ettinger Law Firm

There were 39.6 million individuals in the U.S. over 65 years old in 2009. In roughly twenty years that number is expected to increase to 72.1 million. At that point the senior population will constitute roughly 19% of the total American populace. The changing demographics are placing significant strain on public Medicare and Medicaid resources. That is why many observers have focused more attention on the ways that outside not-for-profit groups are working to help seniors in need. Our New York elder law attorneys realize that tremendous good work is performed by so many local groups on these issues. It remains unclear if public programs will be able to fully handle the influx of seniors, and it is likely that local nonprofit groups will continue to play a vital role in ensuring that particularly vulnerable elderly community members receive the care they need.

A new Western Edition article recently summarized some organizations that provide various types of aid to seniors. For example, the Alzheimer’s Association is the nation’s leading organization raising awareness of this cognitive disease that affects so many local residents. Beyond advocating for support in research, the organization provides patient and family services to help those dealing with the effects of the condition which causes memory, thinking, and behavior challenges. The agency has a 24-hour a day help line where families can call for information and referrals.

5.4 million Americans are currently living with Alzheimer’s and the number is expected to more than triple in the next few decades. It is currently the sixth leading cause of death in the United States. Our elder law attorneys have worked with many families whose loved ones are dealing with various stages of the disease. According to the Alzheimer’s Association, more than $210 billion worth of unpaid care is currently being supplied by family members helping loved ones with different forms of dementia.

New York Estate Planning Feud Ends for Astor Family

Published on: April 4, 2012 | by Ettinger Law Firm

The New York Times reported last week on the seeming end to one of the most high-profile New York estate planning feuds in decades. For almost five years Brooke Astor’s only son was engaged in a prolonged battle to settle his inheritance and control over other portions of the family estate. The extended legal saga was yet another reminder of the perils of trying to transfer significant assets in a straight-forward, conflict-free manner.

Mrs. Astor had a fortune estimated at roughly $100 million at the time of her death. Reports indicate that Mrs. Astor had dementia in her later years, dying in 2007 at the age of 107. Three years ago her son, Anthony D. Marshall, was convicted of stealing from her. Another man who handled Mrs. Astor’s affairs was also convicted of similar crimes. Both men were sentenced to one to three years in prison for their conduct, but they remain free pending appeal. The criminal proceedings are separate legal affairs from the probate process which resolves Mrs. Astor’s estate. However, the conduct of Mr. Marshall as revealed in the criminal matter likely affected the ultimate resolution of the New York estate plan dispute.

Mrs. Astor signed a will in 2002 that left a sizeable amount of money to charity. However, the will was amended in 2003 and then twice-again in 2004. The changes essentially gave Mr. Marshall more money as inheritance and control over her estate. The legal fight centered on whether Mrs. Astor was tricked into signing those subsequent revisions and whether she was competent at the time.

Is Medicaid Funding Getting Harder to Come By?

Published on: April 3, 2012 | by Ettinger Law Firm

A Wall Street Journal article this weekend asked some tough questions about the availability of Medicaid nationwide. Our New York Medicaid attorneys realize that many local residents are understandably concerned about the program in our state–it is an essential lifeline for many seniors. The latest WSJ article suggest that some states are making it harder for individuals to receive Medicaid help to pay for long-term care costs–however, the “crack down” on Medicaid expenditures is advancing very differently in certain states.

According to the Kaiser Family Foundation, Medicaid now accounts for about 40% of long-term care spending nationwide. The program is a joint state and federal effort that provides healthcare resources for those unable to afford it. There are federal qualification guidelines, but states are free to work within those guidelines to set specific standards about what is required before a resident is able to receive Medicaid support. As a result of this state flexibility, there can be significant differences in qualification factors in different parts of the country.

Considering that most state are experiencing budget shortfalls, many are looking into different ways to save on these costs. Of course, New York Medicaid changes and proposals are frequently in the news, as local policymakers continue to explore various ways to save money. As the article notes, some of those proposed changes include tinkering with the ways that the state can recover costs from the estates of those who used the program. Our New York elder law estate planning attorneys work closely on those issues, following along with all changes in the law so that local families are best positioned to receive the care they need while saving as many assets as allowable under the law.

Mental Capacity Issues in Estate Planning Fights

Published on: April 2, 2012 | by Ettinger Law Firm

“Lawsuit-proofing” an estate is a common goal in estate planning. Of course, this refers to use of strategies and tools to ensure the inheritance process does not lead to legal fights down the road. A benefit of having an experienced New York estate planning lawyer involved in the preparations is that the legal professional will be able to anticipate possible challenges and incorporate those risks into the work that is performed. In this way, proper planning requires strategizing and unique legal maneuvering, not simply filling out lines on legal documents.

For example, one of the most common ways that an inheritance plan in attacked is by questioning the capacity of the settlor. If one is unhappy with the way that a senior decided to manage their estate or dispose of their trust assets at death, challenging that senior’s mental capacity is a common. A Lake County News article last week discussed this possibility by highlighting real appellate cases where capacity was at issue.

In one case, an elderly settlor decided to leave most assets to his long-term romantic partner instead of his children. The senior, who was known to be forgetful, changed his trust documents to leave the majority of the assets to the partner. He also named her as beneficiary for his retirement accounts. The man’s children, with whom he had strained relationship, did not find out about these changes until the man’s death. They initiated a legal suit seeking to attack the changes to the trust and retirement plan. The argument that they made in the legal challenge was that their father did not have the requisite capacity to control his affairs at the time that he made changes to his trust documents. A key issue in that case is obvious: what level of understanding is required to make the senior’s actions legally sufficient?

Elder Law is Not Just for the Elderly

Published on: March 30, 2012 | by Ettinger Law Firm

Some mistakenly dismiss elder law issues as something with which they need not concern themselves until they personally need help getting by each day. However, our New York City elder law attorneys have worked with many local residents on these issues decades before they need care themselves. That is because many adult children are forced to deal with these concerns on behalf of their parents–many of whom have serious health concerns that arise quite quickly.

With demographic changes leading to a boom in the elderly population, the need to care for aging parents is catching more and more adult children by surprise. According to the AARP, more than 42 million individuals (usually adult children) provide caregiving for elderly friends and family. Another 61.6 million provide partial caregiving support at various times throughout the year. A story from Life Stages discussed the very serious worries faced by those who are unexpectedly forced to wade through a myriad of confusing and complex issues (including many related to elder law) when their parents can no longer get by on their own each day.

The story profiles one woman whose story is shared by many in our area. Her eighty three year old mother had a massive stroke last summer which led to her becoming paralyzed. Her father, also eighty-three years old, was unable to provide the care that she needed. The hospital recommended that the mother be moved into a nursing home. Before taking that step, the daughter wanted to learn if she had any other options.

Estate Planning Challenges For the “Asset Rich and Cash Poor”

Published on: March 29, 2012 | by Ettinger Law Firm

This week the USA Today shared a helpful story that analyzed some estate planning difficulties faced by certain families, often farmers, who have many physical assets but few liquid cash stockpiles. One obvious challenge for these families is dealing with the uncertainty of the estate tax. Estate tax considerations are of clear concern, because the family may be unable to pay the tax burden that comes with inheriting the assets without being forced to actually sell those very assets.

Currently, there is a $5 million exemption level for the estate tax. However, without federal action, that exemption level will drop to $1 million by the end of the year. All inherited assets that exceed that level will then be taxed at various rates up to 55%, with a 5% surcharge on estates over $10 million.

Our New York estate planning attorneys appreciate that these estate tax issues are of paramount importance to certain community members, like farm families or those with family-owned businesses. For example, it does not take much for farms of various sizes to cross over that $1 million threshold when taking into account land, buildings, and equipment. In addition, for many farmers, land values have risen steadily with advances in natural resource technology because of the increased profitability of available minerals. Many resources can now be extracted from land that was previously unattractive to the mineral industry. This increases the value of land but makes estate tax considerations a real concern for more families.

Money for Senior Care Services Fails to Keep Pace with Rising Need

Published on: March 28, 2012 | by Ettinger Law Firm

Surveys from the AARP suggest that more than ninety percent of seniors would prefer to stay in their own homes as they age instead of moving into a nursing home or assisted living facility. Our New York elder law estate planning attorneys work with many seniors who take preparations specifically to avoid being forced to move in the future.

Unfortunately, access to the support services that allow seniors to stay at home is getting harder and harder to come by. Transportation services, meal delivery programs, adult day care centers, and similar programs are finding it tougher to stretch stagnant resources to aid a growing number of seniors. The Times Herald-Record touched on these New York elder care concerns in a story this week.

For example, at the end of this month the Dial-A-Bus service will no longer be providing support to elderly community members in New Windsor, Cornwall, and many nearby towns. Senior care workers explain that it is hard to underestimate the value of those sorts of services. For some isolated seniors, the bus service was not simply the only way they had to get to doctors appointments, but it was often the only chance these seniors had to socialize and interact with those in the community.

Green House Project: Nursing Homes Shift Away From Institutional Settings

Published on: March 26, 2012 | by Ettinger Law Firm

Nursing homes can be intimidating places. The traditional model for these facilities is institutional, with facility designs and procedures based on mass efficiency instead of individual concern for the well-being of each resident. Our New York elder law attorneys appreciate that this “regimented” lifestyle is feared by many local residents who likely have personal stories of friends or family members who lived unhappily in one of these facilities. Some resident even put off elder law estate planning specifically because thinking about these issues is unpleasant and many would prefer to just avoid the issue altogether.

Of course, failure to plan for long-term care issues actually has the opposite effect–making it more likely that one will be forced to live in a less than ideal location. In fact, so long as resources are available, there is a growing chance that around-the-clock care can be provided for even the most ailing seniors in locations that reject the old model and prioritize individual care and personal well-being.

For example, the Democrat & Chronicle published a story on a new national movement to improve elder long-term care. The Green House Project is a program originally funded by the Robert Wood Johnson Foundation. It seeks to phase out the old nursing home model for one that focuses on more intimate settings. New homes built as part of the project have clusters of seven to ten residents who each have their own room and are given more autonomy. While projects like Green House are growing in popularity, it is undeniable that there is still a long way to go before all nursing home residents have care that places emphasis on their individual quality of life.

Increase in Blended Families Cited For Causing “Uglier” Estate Fights

Published on: March 19, 2012 | by Ettinger Law Firm

The world is a different place today than it was in 1950. Several decades ago the vast majority of families were of similar make-up: father, mother, kids, dog, house, and car. Inheritance planning in those situations often followed very predictable patterns. A spouse received the assets after a death, and the children split the remaining assets when the second parent moved on. However, our New York estate planning lawyers know that there is much more complexity these days.

That is true for several reasons. On one hand, the law has changed, with different tax situations, legal tools, long-term care concerns and other realities forcing estate plans to take more into account. In addition, families are much more diverse these days than in the past.

Blended families are quite common, necessitating families take special care to account for their inheritance wishes. “Default” statutory inheritance rules may have been a bit less off-putting several decades ago. However, considering the unique make-up of most families these days, it is incumbent upon local residents not to risk their estate being split via default intestacy rules. As a new USA Today story explains, it is no longer a luxury to have the help of an estate planning lawyer–it is a necessity.