New York Estate Planning & Elder Law Blog

Connecticut Man’s Challenge to Still Living Father’s Estate Fails

Published on: May 14, 2018 | by Ettinger Law Firm

A federal court in Connecticut recently dismissed a lawsuit brought by a Connecticut man who felt jilted after being excluded from his still-living father’s estate on the grounds the plaintiff had yet to suffer any actual injury. The case is a cautionary tale for both testators and heirs in situations where familial tensions can manifest themselves into lengthy and expensive court battles that may end up doing little to resolve tensions.

The petitioner in this case filed suit against his father, sisters, and PNC Bank which was acting as the trustee to the father’s living trust. The petitioner alleged his sister, who was acting as the testator’s health care proxy and using a general power of attorney to make financial decisions, asserted undue influence on the testator to exclude him from the estate.

Unfortunately for the plaintiff in the case, the federal judge ruled that his lawsuit failed to live up to the basic principles of when and why courts can hear cases. The judge determined that because the plaintiff’s father was still living and he had yet to be excluded from any expected inheritance, the testator’s last will and testament could not be invalidated as of yet.

The Law of Incapacitated Parties and Probate

Published on: May 9, 2018 | by Ettinger Law Firm

When estate planning clients require a legal guardian to perform power of attorney, the process can be complicated. This is especially true when rules of guardianship are involved in distribution of revocable trust assets for purposes of medical care or other life-sustaining care need of the trustee. In some states, like New York, state law allows for the legal guardians of incapacitated parties to withdraw life-sustaining therapies if the former deems the patient’s wishes are met with the decision. While informed consent laws provide for guardian power of attorney in meeting those medical treatment requirements, the payment for those professional services may be beyond a patient’s means without disbursement of convertible trust assets.

Guardianship and Estate Planning

The following is a checklist for representation of a trustee who is an incapacitated party in the estate planning process:

Doctrine of Revocation: Estate planning and the Rules to Spousal Inheritance Post-divorce in New York

Published on: May 7, 2018 | by Ettinger Law Firm

At the turn of the 21st century, divorce or annulment of a marriage did not automatically revoke any revocable disposition or appointment of property from an ex-spouse at time of a decedent’s death in New York. Since 2008, with the amendment of the. Existing Estates, Powers and Trusts Law, EPTL 5-1.4, estate law rules to divorce or annulment revocation of inheritance applies to any revocable disposition or appointment of property assigned a former Spouse as a designated beneficiary. New York Law EPTL 5-1.4 revokes any nomination of an ex-spouse as trust fiduciary, executor, agent, guardian, representative, trustee, or attorney-in-fact. Under the prior divorce and annulment revocation rule, the legal termination of a marriage agreement did not automatically revoke an ex-spouse’s power of attorney, or most revocable dispositions (“testamentary substitutes”), including joint tenancies (i.e. joint banking accounts), lifetime revocable trusts, or insurance policies (IN RE: The Estate of Joseph SUGG, Deceased. No. 2013–5055/B, Decided: June 29, 2015).

Amend, Restate or Execute a New Will?

When a couple divorces, changes to a will must be effectuated to an estate. Amendment, restatement, or execution of a new will is required under current New York estate law. Estate planning documents can be changed with the assistance of a licensed attorney experienced in matters of trust document modification and probate litigation. A client undergoing divorce is advised to review existing estate planning documentation at the commencement of a divorce, and at time of finalization. Estate law rules to entitlements provide that a soon to become ex-spouse will automatically lose named beneficiary status in a will or revocable trust. In matters where there is a judicial separation, annulment or final decree of divorce in process, revocation occurs only at the end of those proceedings, regardless of couple or court determined outcome.

New Medicaid work requirements could cause family caregivers to lose their coverage

Published on: May 7, 2018 | by Ettinger Law Firm

Proposed work requirements to Medicaid eligibility could result in some family caregivers losing their vital coverage, according to a recent analysis of Kentucky’s reforms by advocacy group Justice in Aging. Medicaid is vital to helping caregivers take care of their own health while caring for a loved one but depending on how states implement work requirements or defines “work,” family caregivers may end up losing their health insurance or face additional hurdles to keep it.

Caregivers are unpaid individuals like spouses, partner, family members, friends, or neighbors involved in assisting others with activities of daily living and/or medical tasks. The selfless work they do for others in need is vital to the health and wellbeing of the individual and cannot be taken for granted or impeded by barriers that would cause widespread hardship.

According to the National Alliance for Caregiving and AARP, an estimated 43.5 million caregivers have provided unpaid care to an adult or child in the last year and of that number, 34.2 million Americans have provided unpaid care to an adult age 50 or older in the same time period. The majority of caregivers care for one other adult while about one in six care for two-adults. About 15.7 million adult family caregivers care for someone who has Alzheimer’s disease or other dementia.

How ERISA Rules Protect your Estate from Attachment

Published on: May 4, 2018 | by Ettinger Law Firm

In 2018 new legal reforms were implemented that will effectively protect estate trusts from retirement benefit plan asset seizure by creditors.

Reform of the Employee Retirement Income Security Act of 1974 (ERISA) in the past year extends protections to estate trusts, and their assets. The latest ERISA rules cover managed retirement plans and welfare benefit plans held by nearly fifty-four percent of retirement benefits, and fifty-nine percent of insurance benefits associated with those plans. With the new reform, trust assets will be at a lesser risk of court ordered attachment by creditors for the collection of a decedent’s outstanding debts due to fiduciary bonding agreements to nondisclosure.

Prudential Measure, Fiduciary Reform

Healthcare Industry Warning Against Proposed Short Term Plans

Published on: May 2, 2018 | by Ettinger Law Firm

The country’s largest trade group for health insurance companies is sounding the alarm on proposals from President Trump that would expand the sale of plans that cover fewer services to people who cannot afford some of the current short term plans. America’s Health Insurance Plans (AHIP) claims the proposal would lead to more Americans becoming uninsured or underinsured, resulting in higher healthcare costs in the future.

The rule proposed by the Trump administration would lift restrictions from the previous administration that limited short term health insurance coverage to a maximum of three months and allow individuals to purchase short-term health insurance for up to one year. The administration claims the move would create an alternative for those unable to afford plans compliant with ObamaCare covering a comprehensive list of services.

Opponents of the plan say the rule changes would mean insurance companies could end up charging individuals with pre-existing conditions more for their health care coverage, a major restriction placed on companies under current statutes of the Affordable Care Act (ACA). Instead, members of the AHIP suggest the short term health insurance plans be limited to only six-months of coverage, ensure clear disclosures to consumers about what short term plans do and do not cover, and inform consumers of the potential availability of discounted coverage through the marketplace.

May is Older Americans Month

Published on: April 29, 2018 | by Ettinger Law Firm

For 55-years, Older Americans Month has been observed to recognize older Americans and their contributions to our communities. Led by the Administration for Community Living’s Administration on Aging, every May offers opportunity to hear from, support, and celebrate our nation’s elders. Ways to show your support for Older Americans Month include taking selfies and group shots while participating in activities that improve your mental and physical well-being then posting the image to social media using the hashtag #OAM18.

The 2018 theme for Older Americans Month is “Engage at Any Age” and emphasizes that that you are never too old (or young) to take part in activities that can enrich your physical, mental, and emotional well-being and celebrates the many ways in which older adults make a difference in our communities. Older Americans can get involved in the celebration by participating in activities promoting mental and physical wellness and offering their wisdom and experience to the next generation.

President Kennedy first declared May to be Senior Citizens Month in 1963 as a way to honor citizens 65-years and older and since then, every president has proclaimed May to be a month to show support for older Americans. In 1980, President Jimmy Carter changed the name to Older Americans Month and as a show of support, the National Academy of Elder Law Attorneys declares the month of May to be National Elder Law Month.

How the Uniform Disposition of Community Property Rights at Death Act Affects Spousal Maintenance

Published on: April 23, 2018 | by Ettinger Law Firm

In New York, a court will decide if spousal maintenance (“alimony”) should be extended to a former spouse’s estate. Marital property part of a decedent’s estate is only considered an asset of the former spouse if no other heir or beneficiary is designated in a written will. Division of marital property and major assets are a considerable decision in the distribution of resources during a divorce proceeding. Court award of finance and other property assets during a divorce is the result of judicial review. A range of factors are considered before a court issues an order for spousal maintenance. Rules to Special controlling conditions to division of property and spousal maintenance stipulated in New York Consolidated Statutes, Art. 13 §236. The same rule applies to award of estate assets.

New York Estate Laws and Marital Property

The adoption of the Uniform Disposition of Community Property Rights at Death Act of 1971 in New York legislation, recognizes community property rules to addressing equitable distribution at time of one ex-spouses death (Estates, Powers and Trusts Laws §§6-6.1, et seq.). The Act preserves community property ownership rights of spouses that have moved from a community property state to New York, a non-community property state.

Estate Planning to Protect Partnership Assets from Taxation

Published on: April 20, 2018 | by Ettinger Law Firm

Partnerships, or “limited partnerships” LP, established with individual member capital contributions of money and property in the interest of forming a business are potentially asset that can be a substantial factor in estate planning. The transfer of business and personal capital to legacy capital establishes a trust for grandchildren or other beneficiaries who will benefit from a decedent’s wealth long-term. One of the main challenges is protecting those former business assets from taxation.

“Pass-through” Partnership Tax Rules

The legal treatment of a LP is one of discretionary liability where partners are concerned. This bodes well for estate planning, as there is little worry of another general partner influencing the actions of an estate. All U.S. states have adopted the Revised Uniform Partnership Act (RUPA) so that all laws are consistent with federal rules to partnership. Partnerships (IRC §761) comprised of two or more members are not considered taxable entities as result.

State Regulators Take Over Dozens of Nursing Home Facilities Owned by New Jersey Company

Published on: April 18, 2018 | by Ettinger Law Firm

State regulators recently took control over dozens of nursing homes owned and operated by a New Jersey-based company that is responsible for over 100 facilities in eight states across the country, including three in New Jersey. In addition to operating homes in the Garden State, Skyline Health Care, LLC, owned by Joseph Schwartz, is the parent company for nursing homes and other facilities in Arkansas, South Dakota, Tennessee, Pennsylvania, Massachusetts, Nebraska, Kansas, and Florida.

According to reports, the company has failed to make its payroll in both Nebraska and Kansas, prompting state health department officials to take receivership of a combined 36 nursing homes, adult day cares, and assisted living facilities serving thousands of patients in those states. New Jersey Health Department officials acknowledged they are aware of the issues with Skyline Health Care facilities in Nebraska but has not received any reports of problems in New Jersey.

Nebraska health authorities placed 21-nursing homes and 10-assisted living facilities owned by Skyline in receivership in late March after determining that Skyline became unable to pay staff and ensure the future care of residents. Around the same time, Kansas state courts authorized a temporary receivership and are seeking a permanent one for 15-skilled nursing facilities with 845 patients, making it the largest takeover ever by that state’s Department for Aging and Disability Services.