Office Locations: Albany; Fishkill; Huntington; Islandia; Lake Success; Melville; Middletown; New City; Rhinebeck; Rockville Centre; Staten Island; White Plains

Schedule an in-office, Zoom or phone consultation Here.

New York Estate Planning & Elder Law Blog

Common Estate Planning Mistakes (And How to Avoid Them)

Published on: January 7, 2019 | by Ettinger Law Firm

Planning your estate is an extremely important process and should be taken very seriously in order to avoid hassles or any extra delay that could come with passing your estate through probate or otherwise transferring assets to loved ones and friends. With proper planning and attention to detail, most folks can avoid some of the most common estate planning mistakes and avoid any costly and prolonged probate process.

One of the most common estate planning mistakes is adding a friend or younger family member’s name to a joint account as a matter of practicality to make accessing the deceased’s bank account after passing away to pay for funeral costs and other bills. While this may seem like a good idea to some, the reality is that this can create confusion over the deceased’s intentions and may complicate probate. A better alternative is to give a trusted individual power of attorney to make financial decisions if incapacitated and a prepay for funeral expenses.

Instead of leaving assets to heirs in a will outright, individuals should consider setting up a trust for these assets to pass onto upon the grantor’s death. This way the heir does not take on unwanted wealth to his or her name and complicate tax considerations or Medicaid planning. This can also shield the assets from creditors who may go after the wealth to recoup debts incurred by the heir.

Tips for Managing a Family Pot Trust in New York

Published on: January 4, 2019 | by Ettinger Law Firm

Family post trusts are a special type of trust that allow a trustee to allocate distributions among a class of beneficiaries and are often implemented because of the increased flexibility they offer regarding distributions. Unfortunately for trustees, administering these trusts is hardly straightforward and he or she will often have to manage delicate family situations and competing interests between beneficiaries. In situations where animosity exists among family members, these dynamics can create discordant expectations so clear guidance in the trust becomes a critical aspect.

While managing a family pot trust, the trustee (the individual tasked with administering the trust on behalf of beneficiaries) must keep in mind his or her fiduciary duty to the beneficiaries required under the law. This includes acting an impartial manner in order to treat beneficiaries in an equitable and equal manner in accordance with the conditions laid out in the terms of the trust. Essentially, the trustee of a family pot trust cannot favor one individual or class of beneficiary over another, unless specifically authorized by the trust.

To help make managing the trust easier, trustees should consider keeping a running total of all the distributions made to various beneficiaries, thus enabling him or her to know if all the beneficiaries are receiving benefits equal with the grantor’s wishes. Additionally, trustees should proactively communicate with beneficiaries in a direct manner to manage personalities and needs as well as financial duties under the trust. Such communications should also be documented as a hedge against any possible legal action taken by a beneficiaries who may feel slighted in some way.

Study Suggests Older Adults are Not Taking their Prescribed Antidepressants

Published on: January 1, 2019 | by Ettinger Law Firm

A recent report by Reuters suggests that many older adults are abstaining from taking their prescribed antidepressants or continuing to use them as directed by their doctors, that according to a Dutch study examined by the news outlet. If true, the study highlights mental health challenges facing millions of people around the world who may otherwise be willing to continue medication issued by a psychiatrist but balk at treatment from primary care doctors.

The study examined roughly 1,500 people who were at least 60 years old and diagnosed with depression in 2012 by primary care providers finding about 14 percent of patients with depression failed to take their antidepressants within two-weeks. For those patients who did take their medication on time, 15 percent missed taking doses 20 percent of the time and 37 percent overall ceased taking their antidepressants altogether within one year.

The study also found that many patients in the study tended to be more consistent with taking medication when these individuals were already used to taking daily medications for a variety of other chronic health issues. Those patients already on other medications were 11 percent less likely to fail at beginning antidepressant regimens and 13 percent less likely to take these same drugs on an inconsistent basis.

Authorities Warn about New Social Security Scam Calls Targeting the Elderly

Published on: December 28, 2018 | by Ettinger Law Firm

Authorities across the country are warning of new scams targeting elderly Social Security over the phone, where individuals claiming to be government representatives try to collect sensitive information under the guise of a computer glitch causing issues with benefits. The Social Security Administration has made it very clear that under no circumstances will it call or send emails to beneficiaries asking for personal information, such as Social Security numbers, dates of birth or other private information, and advises people to not respond to such messages.

Other scams include callers asserting that beneficiaries need to pay a fee to unlock their Social Security number because of criminal activity and will also need to confirm their Social Security number. The Federal Trade Commission recently confirmed an increase in this type of scam and beneficiaries should be on the lookout for this type of illicit activity.

The AARP Fraud Watch Network recently announced it has had more complaints to its helpline in the past few months from consumers targeted by Social Security impostors than the older IRS scams that harassed thousands, if not millions, of Americans since 2013. According to the office of the Treasury Inspector General for Tax Administration, those IRS scams stole more than $73.6 million from almost 15,000 victims over the past five years.

Consumer Financial Protection Bureau Guide on Managing Elder Financial Affairs

Published on: December 24, 2018 | by Ettinger Law Firm

The Consumer Financial Protection Bureau (CFPB) recently released a set of helpful guides to help individuals manage the financial affairs of loved ones or others who are unable to do so and require a fiduciary to take of such matters. The guides cover multiple topics to help fiduciaries, including how to spot financial exploitation and avoid scams as well as a “Where to go for help” section with a list of relevant resources for more information.

One of the guides included is “Help for agents under a power of attorney” which lists the four basic duties that fiduciaries with a power of attorney need to keep in mind when managing the affairs of another. Those include to act only in the beneficiary’s interest, manage the beneficiary’s property and money carefully, keep the money and property of the beneficiary and fiduciary separate, and to keep good records of all transactions.

Another helpful guide included in the series is “Help for court-appointed guardians of property and conservators” which someone the court names to manage money and property for someone else whom the court has found cannot manage it alone. This can also apply to instances where a fiduciary is named to act in the interest of another person as a guardian, managing that person’s healthcare and other personal decisions. Other times, a court may be appointed to manage the governmental benefits of an individual and the CFPB also provides outlines for these responsibilities too.

Combined Financial, Estate, and Legacy Planning

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

When an elderly family member is diagnosed with Alzheimer’s related dementia, it is time to discuss the details of legacy, financial, and estate planning. While connecting a loved one with support services is the priority when their memory is beginning to fade from age, formation or modification of financial and estate planning to meet their needs during their last years is often a key family decision. No matter how well an elderly family member has planned for financial and estate distributions, review of those plans to accommodate the expense of residential treatment or other medically related support costs will ensure that an elder is taken care properly while alive; as well as cover memorial and funeral costs at time of death. A licensed attorney can assist with the formation of a combined financial, estate, and legacy plan to suit an elder’s needs.

Law of Diminished Capacity

Within U.S. federal law, the definition of “diminished capacity” applies to incapacitated parties no longer exhibiting full mental ability. If an elder lacks the ability to make routine decisions about complex matters, they may be suffering from memory loss or dementia related to the onset of Alzheimer’s disease. Patients diagnosed with dementia still have legal rights to their property and assets. Spouses of incapacitated parties are the primary decision makers under law. According to New York rules of intestate succession EPTL 4-1.1, If no living spouse or will exists, and another family member has not already been given power-of-attorney, rights to legacy, financial and estate planning on behalf of an incapacitated party may be assigned to court appointed trustee.

Major Insurance Company Pulls Gym Membership Program

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

As of January 1, 2019, approximately 1.2 million seniors across will lose their SilverSneakers coverage on Medicare Advantage plans that give them access to gyms and health centers without any additional membership costs. The controversial business decision will affects plan holders in California, Connecticut, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, Nevada, North Carolina, and Utah who have Medicare Advantage plans with UnitedHealthcare.

An additional 1.3 million seniors across nine states with Medicare Advantage plans with Medicare supplemental (Medigap) insurance will also lose their access to the SilverSneakers program. States affected by this move include Arizona, California, Connecticut, Illinois, Indiana, North Carolina, Ohio, Utah and Wisconsin. Although the benefits were optional with UnitedHealthcare, millions of seniors nonetheless took advantage of the option to visit gyms and fitness centers for exercise.

Beginning next year, UnitedHealthcare will instead offer seniors with Medicare Advantage supplemental policies will get 50 percent off memberships at thousands of gyms across the country, telephone access to wellness coaches and access to various online communities and health-related resources. Seniors with UnitedHealthcare Medicare Advantage plans can join Renew Active, the company’s health and fitness program which offers a network of over 7,000 locations members can visit for no additional cost and even qualify for evaluations from personal trainers and online brain-training programs.

Dead Man Walking or Dead Man’s Statute?

Published on: December 16, 2018 | by Ettinger Law Firm

In October 2018, new statutory legislation recommended by the Irish Law Reform Commission of the country’s cabinet considered a rule that would block those found guilty of killing their domestic partner or spouse from unjust enrichment attached to financial or estate proceeds. In the United States, spousal property is customarily subject to rules of intestate succession in a probate court proceeding, when one spouse is found to have been unlawfully killed by another. If not other legitimate heirs or beneficiaries are present, spousal property part of estate assets is escheat to state coffers. In states with Dead Man Statute provision, heirs or beneficiaries may contest the last will and testament of a decedent. New York Dead Man Statute protects a decedent from a spouse making false claims in court.

Irish Estate Law and Spousal Protections

The proposal comes at a time when an Irish citizen, Eamonn Lillis received distribution of a near 1.3m euros (£1.16m) from his spouse’s estate, despite being found connected to her manslaughter. Jailed for six years between 2010 and 2015 for assault and battery of Celine Cawley, his wife, Lillis maintains the responsible party was a trespasser on their property, who had broken into the home. The proposed legislation seeks additional protections for spouses harmed by their partners; prohibiting guilty parties from any financial benefit flowing from spousal property. The Irish government is also considering statutory provision concerning cases where a spouse has aided or abetted in the murder or manslaughter of their partner. To present, Irish law has not prohibited claimants who have commissioned unlawful killings of their spouse from inheriting joint assets (i.e. co-owed property); as seen in the High Court decision in favor of Lillis’ claim.

New York DTF Investigation into the Trump Estate

Published on: December 12, 2018 | by Ettinger Law Firm

New York State Department of Taxation and Finance (“DTF”) announcement that it will investigate President Donald Trump’s estate comes at a time when the federal Internal Revenue Service (“IRS”) is pursuant of accurate reporting information about the presidential family’s wealth. Trump’s lawyers cite the 3-year federal and New York state statute-of-limitations in response to recent allegations that the estate aggressively undervalued properties on state and federal tax record. Properties reported on a gift or estate tax return form to the IRS and the state, however, make it unlikely additional disclosure will be required, and not after the statute runs out.

The Presidential Audit

A New York Times report suggests Donald Trump gave Fred Trump a $15.5 million stake in a Trump Palace development in exchange for forgiveness of loans to his son – an amount subject the federal 55% gift tax rate. Fred Trump apparently never reported the gift at the individual-level, nor is it reflected on the estate tax return, and this has the potential to involve Donald Trump an investigation due to his role as an executor of the estate. In 2000, the Fred and Mary Trump estate was audited. The audit included gift tax returns that had been audited in the 1990s, making any further investigation impossible as those records could not be reopened.

Trump Tax Conundrum Will Likely Lead to Estate Rule Reform

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

The news that the First Family protected their assets from additional taxation is now the subject of Congressional debate over potential reforms to federal estate tax law. Following the announcement that the New York Department of Taxation and Finance (“DTF”) is looking into near future audit of the Trump family estate, similar Internal Revenue Service {“IRS”) code was called into question. If existing federal and state tax statute is allowing taxpayers estate tax loopholes, what are the consequences for government finance? Tax dodgers usually seen as a limited segment of the American population, may in fact represent a far greater proportion of taxpayers than thought. Allegations that President Donald Trump’s father’s estate had applied fraudulent accounting methods to avoid higher estate taxation, apparently has saved the family millions that would have otherwise been owed to the government.

Congressional review of tax loopholes in FY18Q4.

With democrats keenly focused on review of what might be federal IRC loopholes present within Part 4. Examining Process, Chapter 25. Estate and Gift Tax, Section 1. Estate and Gift Tax Examinations, future reform is likely. The current rules lower the valuation of estates based on minority ownership of assets, and the result is a lower tax bill. As tax experts point out, controlling shares are more valuable than minority shares. Distribution rules to shares of an estate allow for families to report split shares. Violation of current law occurs when an estate reports transfer of minority shares, exclusively; reducing the reported valuation of an asset. Congressional attention is now being given to IRS and New York DTF enforcement of existing federal and state laws. The IRS budget reportedly dropped more than $800 billion between 2010 and 2017 during the Obama Administration.