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New York Estate Planning & Elder Law Blog

Daughters Disproportionately Assume Elder Caregiver Role For Aging Parents

Published on: October 18, 2011 | by Ettinger Law Firm

An article yesterday at Forbes explored an issue that has been dubbed “the ticking time bomb of eldercare.” It is well known that many families are forced to adapt their lifestyle once they start having children to make concessions for childcare. However, our New York elder law attorneys know that many families are also forced to make similarly tough decisions to account for eldercare when aging parents are in need of day-to-day assistance. Many local residents still fail to appreciate the demands placed upon adult children and other loved ones when a senior reaches the point where they cannot live on their own without help. The challenges are particularly harsh for local residents when no elder care planning has been conducted ahead of time to ensure that resources are available to provide the needed aid.

Yesterday’s article explains how eldercare expectations are very much rooted in old cultural norms. Specifically, in many families it is assumed that daughters will take care of parents as they age. Decades ago this was more logical as women were far less likely to be in the workforce and were more often available in their homes to assist parents throughout the day. However, those old realities are less and less true. Many more women have careers just as demanding as men. It is no longer easier for many adult daughters fit the care of their elderly parents into their lifestyle. Yet, cultural expectations persist, often making daughters disproportionately more responsible than sons for ensuring the well-being of their elders.

This cultural pressure may affect some women more than others. In particular, women with family backgrounds rooted in certain cultures–including Russia, India, China, and others–often face immense pressure to provide eldercare. For some that means ending a career that has taken a lifetime to build. As the authors of one study on the topic noted, “Eldercare is a serious issue…because its obligations and attendant guilt derail woman who are just hitting the peak of their careers.”

New York Estate Plans Tailored for Those with Multiple Sclerosis

Published on: October 17, 2011 | by Ettinger Law Firm

No two New York estate plans are exactly the same. Proper long-term planning demands that each unique life circumstance and family issue be considered and incorporated into the legal preparations. For example, our New York estate planning attorneys have helped many families over the years make special arrangements to provide assistance for family members who suffer from a wide range of disabilities. For nearly two decade residents in our state have been able to set up special trusts so that a disabled loved one could receive an inheritance without disqualifying them from government benefits. Unlike in the past, there is no need for parents to disinherit disabled children or other family members out of fear of losing access to Social Security and Medicaid.

This weekend Forbes published an article reiterating the value of estate planning for all area residents. It was noted that a professional estate planning lawyer should always be consulted so that these plans can be tailored to one’s unique needs. As explained, this is particularly important for those living with disabilities or chronic illnesses. Families dealing with these issues are often forced to live day-to-day, because their medical problems come with a large amount of uncertainty. Ensuring that proper estate and financial plans are in place is one of the few ways that many of these families can provide some degree of certainty to their future.

For example, many New York families have loved ones living with multiple sclerosis (MS). It is a problem that flies under the radar, because as experts at the National Multiple Sclerosis Society explain, “some people do not understand that 96% of the symptoms of chronic illnesses are invisible.” For those with MS one of the most common systems is referred to as “exacerbations.” These are sudden attacks of fatigue. This fatigue is unlike normal tiredness, and instead it constitutes a complete exhaustion which makes it impossible for many suffers to function normally. It remains the number one reason why people with MS leave the workforce.

Steve Jobs Likely Paid No Estate Taxes By Using Trusts in Estate Plans

Published on: October 12, 2011 | by Ettinger Law Firm

News spread quickly last week of the death of Steve Jobs, the popular technology guru who pioneered so many technological marvels with Apple and the animation company Pixar. While Mr. Jobs was a billionaire, those familiar with his estate planning affairs explain that even middle class families have much to gain by following his lead in planning for their long-term financial affairs. For one thing, no one knows exactly what Jobs decided to do with his affairs, because by using trusts he was able to keep his business out of the public eye. As reported in The Trust Advisor, one man familiar with the situation explains, “Privacy was such a big part of his life and his career. And if everything passed through one or more trusts, there would have been no probate fee…and no will to be read (publically).” You do not have to be a billionaire to achieve this privacy by utilizing alternatives to a will. Our New York estate planning lawyers have helped many local families in our area do just that over the years.

On top of the ability to make decisions privately, Mr. Jobs plan also highlights the way that preparation can help avoid taxes. Most believe that his roughly $6 billion estate will likely pay no estate taxes. Estate taxes continue to make news nationwide as lawmakers debate over changes in the rate and the levels at which the tax kicks in. However, steps can be taken to essentially eliminate the assets that are counted toward those taxes, making it possible to avoid these taxes altogether. The New York estate planning attorneys at our firm can explain what specific steps should be done in your individual case to ensure as much wealth as possible passes on to those who you’d like to receive it.

Mr. Jobs estate planning is also a good example of how each plan is entirely individualized to account for the unique goals, desires, and perspectives of the one from whom it is crafted. No one yet knows how his fortune will be divided down the road. All that is known is that before his death Mr. Jobs’ attorneys moved 5.5 million shares of Apple, 138 million shares of Disney, and various real estate holdings into trusts. It is unknown who the trustee is now that Mr. Jobs has passed. Those familiar with the situation explain that Mr. Jobs had indicated distaste for dynastic plans that would have kept the fortune entirely locked up down the ages. Instead, most suspect that a philanthropic enterprise may be created with much of the assets, perhaps to assist other technology start-ups. No matter what, it is assured that Mr. Jobs plan was a reflection of his own values, something that he shares with every other community members who takes the time to craft their estate plan and consider their long-term legacy.

National Estate Planning Awareness Week is Shares Importance of Long-Term Planning

Published on: October 10, 2011 | by Ettinger Law Firm

Any time is a good time to consider your family’s financial future and to plan for inheritances. Our New York estate planning attorneys continue to help clients save money and gain the peace of mind that comes with knowing that a plan is in place to guarantee that one’s wishes will be carried out down the road. However, there remain many local residents who are still unsure if they need to craft a New York estate plan. Discussions about death and asset transfers are naturally an uncomfortable topic, but it is hard to overestimate the benefit that a family can gain by handling these issues ahead of time.

Sharing information about the importance of the task is one of the main goals behind the National Estate Planning Awareness Week. As discussed this week in the Review Journal, the yearly program is sponsored by the National Association of Estate Planners & Councils (NAEPC) and is slated this year for October 17th to the 23rd. Besides sharing basic information about the value of estate planning, the NAEPC also hopes to use the week to educate the public on the best ways to develop productive relationships with their planning professionals. For one thing, it is always very helpful to gather personal and financial information together in one place before meeting with the professional. That information includes a list of assets and liabilities, retirement plan information, life insurance policies, property deeds, income tax returns, business agreements, and similar materials.

On top of these records, all community members should also do some thinking about their goals and concerns before beginning the process. On the most basic level, one should consider who they would like to receive an inheritance and what specific items they would like to pass along. A large part of that process includes consideration of the unique situations of certain family members that make it reasonable for them to receive more or less of an inheritance. In addition, thought should be given to who should be named guardians for minors and who would make a good executor for a will or trustee for a trust. However, a community member need not have every single detail figured out ahead of time. Experienced planners are often able to provide advice on these issues and share thoughts about how certain family dynamics may influenced by the process.

New York Inheritance Issues in Second Marriages

Published on: October 3, 2011 | by Ettinger Law Firm

Proper Inheritance planning requires much more than simply filing in the blanks on standardized forms. That is why experienced New York estate planning attorneys are essential advisors when local community members are evaluating their long-term financial preparations. Proper planning of these affairs requires consideration of unique family dynamics and an ability to anticipate potential issues before they actually arise. Anticipating possible conflict and accounting for it ahead of time is one of the main benefits that local residents can derive from creating and updating their New York estate plan.

For example, local families often have concerns about the effect that a second marriage will have on their inheritance plans. Many emotions are at play when a parent remarries after a divorce or the death of a spouse. As a CNN story this weekend explained, adult children commonly express apprehension when a parent re-enters the dating pool or indicates a wish to get remarried. Financial concerns are occasionally the cause of that trepidation. One woman who lost her father several years ago explained, “I want my mom to be happy, but how do I know that her suitors don’t have ulterior motives? I’m concerned that she’ll jump into another marriage and her second husband will take advantage of her financially.”

Conversations between loved ones about these issues are frequently thorny and often result in strained family relationships. On one hand, as the article author notes, a parent is free to use their finances as they see fit. After all, an inheritance is not an entitlement but a gift. However, adult children need not stand by if a parent is genuinely making damaging financial decisions or is legitimately being taken advantage of–elder financial exploitation is a common problem. Therefore, in these situations an experienced, trained professional can often provide a crucial perspective to balance the competing concerns.

Careful Consideration Required Before Selecting a Successor Trustee in Estate Plan

Published on: September 28, 2011 | by Ettinger Law Firm

Local residents usually take the time to craft a New York estate plan because they wish to prepare for disability, save estate taxes, and avoid the probate process. In most cases these goals are best met through the use of a living trust. The trend over the past several decades is for middle class families to craft trusts instead of wills for their inheritance planning. As our New York elder law estate planning attorney Bonnie Kraham explained in an article published this week in the Times Herald-Record, unlike wills, trusts are private documents that do not need to be filed with the Surrogate’s Court. No costly, stressful, time-consuming probate process needs to be undertaken upon one’s death when a trust is used.

Instead of court involvement, a trust is usually administered by a successor trustee. Upon the death of the original trustee (the individual who created the trust), the successor trustee must inform the beneficiaries of the situation, gather and invest the grantor’s assets, notify creditors, pay taxes, and distribute assets per the trust provisions.

Attorney Kraham notes that the trustee who administers the trust has a variety of other obligations. They must remain loyal to all beneficiaries, including the contingent beneficiaries–acting impartially between them at all times. Also, the trustee must ensure that trust property produces income. Therefore it is incumbent upon the trustee not to keep large amounts in non-interest bearing accounts or allow a home to sit vacant. At the same time, all investments must be prudent, and a sound overall investment strategy must be employed. This typically requires diversification which balances both income production and investment safety. Other trustee duties include the filing of tax returns, distribution of trust income, handling of expenses, and the maintenance of proper records.

Advocates Call for Tighter New York Medicaid Rule Enforcement

Published on: September 27, 2011 | by Ettinger Law Firm

Last week state legislators proposed New York Medicaid changes which would eliminate the financial involvement of local county governments–a state take-over of the program. However, this change would do nothing to curb the overall costs of the program. Lawmakers explain that reigning in Medicaid costs remains a top priority, and so additional alterations to the program are likely. Many observers are calling for tighter enforcement rules to root out fraud. Stricter enforcement of the program will likely target medical care providers who seek to collect money, but these changes may also affect individual residents who are working through the New York Medicaid application process.

An editorial in last Friday’s Albany Times Union called upon the legislature not to go “soft” on Medicaid users. Recent problems of fraud in institutions serving those with developmental disabilities were used to highlight the current problem with the program. Some observers believe that homes for those who are unable to live independently because of age or disability are the site of the clearest patterns of excessive Medicaid utilization. Several years ago the New York Commission on Quality of Care and Advocacy for the Mentally Disabled noted that Medicaid billing for these services were “costly, fragmented, sometimes unnecessary, and often appeared to be revenue-driven, rather than based on medical necessity.”

Senior care advocates believe that many disabled seniors find themselves in need of dental care, hearing aids, and similar basic services only to be shuffled to alternative medical appointments not of their choosing or tailored to their need. These advocates claim that Medicaid changes are necessary to correct the disconnect between needed services and the ones actually provided. On top of the programmatic problems, the state’s Long Term Care Coalition noted that the Health Department lacks the resources to oversee these adult homes properly. The state body struggles to ensure that nursing homes and senior living facilities are abiding by state rules and regulations. The quality of elder care suffers as a result.

Family Disagreement Over Special Needs Trust Leads to Court Battle

Published on: September 26, 2011 | by Ettinger Law Firm

A New York special needs trust is usually the premier method for local residents to provide a disabled child with financial assistance without disqualifying them from receiving government benefits like SSI and Medicaid. Our New York estate planning lawyers know that providing adequate resources for children with special needs is particularly important today because of the increasing life expectancy of disabled youth. The resources needed by these individuals are often substantial, necessitating very careful planning. All families in this situation must ensure that they seek out professional assistance to learn what legal arrangements are best for their unique situation. No two families are identical, and so specialized help is essential.

Failure to seek out experienced legal aid when dealing with these trusts often results in government benefit penalties, negative tax consequences, and damaging family turmoil. Earlier this month Special Needs Answers reported on developments in a complex legal case related to family disagreement over a special needs trust. The case stems from a trust that was set up in 2002 for an 18 year old high school student who suffered severe brain damage after suffering a heart attack. A lawsuit was filed and settled on his behalf against school officials who failed to take action which would have limited the brain damage. The settlement funds were placed in a special needs trust.

The young man died five years later without a will. Per the rules of intestate succession in the state, the trust funds–valued at $8 million at the time of the young man’s death–were supposed to be split between his parents. The child had been estranged from his father for most of his life, but the victim’s mother did not discuss her specific family situation when the trust was created. In order to avoid having her ex-husband share in the fund assets, the mother had a disclaimer drafted and convinced her ex-husband to sign it by claiming it was a document related to burial. The former spouse initiated a legal challenge when he eventually learned that he had signed away his share of $8 million. The ensuing legal battle lasted several years. It was only this year that a local court ruled that the mother acted wrongly in trying to deceive her ex-husband into signing the disclaimer. The estranged father will be allowed to collect half of the funds left in the trust.

Many Challenges Face Estate Executors

Published on: September 20, 2011 | by Ettinger Law Firm

For decades our New York estate planning lawyers have helped local residents use living trusts instead of wills to plan their affairs. For many clients a will simply creates more problems than it solves. For example, yesterday the Wall Street Journal published a story exploring the myriad of issues faced by a will executor–the person named to manage the estate of a deceased individual in a will. It was explained how a wide variety of complex tasks are required of the executor, there are legal repercussions when mistakes are made, and many relationships are ruined in the process of settling the estate.

Executors are often siblings or other family members of the deceased. It is the executor’s job to administer a will through the probate process by accounting for assets, paying debts, and distributing property. Red tape, complexity, tedium, and relationship conflicts are inherent in the process. Many professionals in the field report that there has been a steady increase in the number of “executorships gone bad.” Some believe that recent economic troubles have led to more inheritance fights as of late, complicating the executor’s job even further. When a will is challenged by an heir (a frequent occurrence), the executor is usually thrown into the middle of depositions, court appearances, and other legal situations that most would prefer to avoid.

Observers admit that the role of executor is generally not suited for amateurs. Often the individual is required to be aware of taxation rules, potential conflicts of interest, and even investment strategies like picking stocks and bonds. All of this comes with little pay, because state guidelines set the amount of money that an executor can receive.

Medicaid Asset Protection Trust Is Important Tool for New York Seniors

Published on: September 19, 2011 | by Ettinger Law Firm

A Medicaid Asset Protection Trust (MAPT) is one of the best tools available for seniors who do not have long-term care insurance to protect their assets from the staggering cost of nursing home care. This weekend our New York elder law attorney, Bonnie Kraham Esq., had a story published in the Times Herald-Record where she explained the value of this trust for local residents. The article highlighted the specific ways that a MAPT can help local seniors save assets for their family and dispelled misconceptions that some have about creating the trust.

A MAPT is a legal entity that a resident creates with the help of a professional to protect assets from being consumed in order to pay for long-term caregiving costs in the future–usually nursing home care. To create the trust, a resident transfers assets (such as the family home) into the separate legal entity and names someone other than themselves or their spouse as trustee to manage the assets in the trust. The senior may then be able to keep those assets down the road while still qualifying for Medicaid assistance if needed to pay for nursing home care.

Contrary to some misperceptions, local seniors who create a New York Medicaid Asset Protection Trust do not forever “lock up” all of their assets or lose the power to alter what happens to their property. The lifestyle of the senior who creates the trust is usually unaffected, because they still receive pension checks and Social Security checks directly, and they retain the exclusive right to use their home just as before while keeping their home tax exemptions. These trusts are irrevocable, but New York law actually allows the trust to be revoked with written consent of all involved parties. In addition, the individual who creates the trust can amend it to change the beneficiaries at any time.