New York Estate Planning & Elder Law Blog

Half of retirees and older Americans will need long term care

Published on: November 24, 2017 | by Ettinger Law Firm

A recent article by Time Magazine covered the financial struggles millions of aging Americans face trying to figure out how to pay for the long term in the future. Unfortunately, our nation’s health care system does not seem to have an effective way for our elders to pay for long-term health care, including residency in a nursing home or hiring an in-home health aid worker.

Although we all expect to live long, happy, and healthy lives, the truth is that most of us will eventually end up needing specialized long term health care that neither private insurance nor Medicare will cover. The average cost of a year’s stay in a nursing home can be upwards of $80,000, a figure that leaves only the very wealthy and the very poor (thanks to Medicaid) able to afford.

All tolled, an estimated 47% of men and 58% of women who are retirement age or older will experience a need for long-term care in the future, according to a February 2016 study by the Department of Health and Human Services. As if the financial burden of paying for necessary medical care was not enough, the county’s healthcare system is simply not equipped to handle the coming wave of tens of millions of Baby Boomers approaching old age.

Accessing Safe Deposit Boxes

Published on: November 20, 2017 | by Ettinger Law Firm

Needing access to a deceased family member’s safe deposit box is a common issue many families face as they prepare to pass a last will and testament through probate in New York Surrogate’s Court. While many assume they can simply bring their loved one’s death certificate and box key to the bank and explain the situation to the bank manager, the truth is that most bank officials will turn down these requests without proper paperwork from the Surrogate Court.

When faced with the impasse, many individuals look at the situation as a catch 22. On the one hand, access to the safe deposit box is needed to probate the will and on the other hand, the safe deposit box cannot be accessed until the estate is probated. Fortunately, New York’s estates and trust laws are prepared for such scenarios and offer a somewhat streamlined process for gaining access to a safe deposit box where a will and other important documents may be stored.

New York Surrogate’s Court Procedure Act, Section 2003 gives interested parties, those with claims to an estate, the right to request access to the deceased’s safe deposit box for the purpose of uncovering the last will and testament. To gain an “Order to Open Safe Deposit Box,” the interested party will need to file the necessary paperwork with a copy of the death certificate and applicable fee.

Drugmaker Under Investigation for Going Off-label with Anti-psychotic Drug

Published on: November 17, 2017 | by Ettinger Law Firm

A recent report by CNN revealed the lengths to which one California drug maker may be going to push sales of Nuedexta, a little red pill developed to treat certain behavioral problems but has been increasingly used in nursing homes to control residents. The story by CNN was so compelling that the City Attorney for Los Angeles even opened an investigation into the drug maker’s targeting of nursing home residents.

The Food and Drug Administration (FDA) approved Nuedexta to treat a disorder marked by sudden and uncontrollable laughing or crying, known as pseudobulbar affect (PBA). According to maker Avanir Pharmaceuticals’ own data, less than 1 percent of American’s suffer from the condition and is most commonly associated with patients suffering from multiple sclerosis (MS) or ALS (Lou Gehrig’s disease).

Unfortunately, Avanir appears to paying doctors to push the medication onto nursing home workers as a way to control the behavior of unruly residents, something the drug is not approved for nor studied enough to warrant such applications. CNN reports suggest some doctors even took in tens of thousands of dollars in exchange for speaking engagements and other talks on the benefits of using the drug for “off label” applications.

Kinship Law in New York

Published on: November 17, 2017 | by Ettinger Law Firm

In New York, if someone passes away without a surviving close family member to inherit the estate, it becomes what is known as a kinship case. While most of us take the time to plan our estate by creating a last living will and testament or a trust to leave our assets to family members and close friends, not everyone is blessed to leave behind a loving family or close associates to pass on an estate.

Chapter 17(B) of the N.Y.S. Consolidated Laws codifies who is entitled to receive the deceased’s estate if he or she passes away without leaving a will. Typically, the surviving spouse is entitled to all of the deceased’s estate if the couple leaves behind no surviving children or grandchildren. If there are children, the surviving spouse receives the first $50,000 of the estate and then half or the remainder which will be split with the surviving children.

When children lose both their parents, the estate will be divided equally between the surviving children. But what if the deceased leave no wife or children? How far will courts and interested parties need to go to figure out who gets what? The answer depends on a variety of factors, including who the deceased leaves behind and whether any interested parties have passed away.

Increased Medicare B Costs May Consume More of Social Security Adjustments

Published on: November 15, 2017 | by Ettinger Law Firm

Millions of senior citizens will soon find out just how high their Medicare Part B premiums will be in 2018 and whether or not their cost of living increases from Social Security will be able to help offset those adjustments. Unfortunately, many low income seniors may be due for some especially bad news as the board of trustees of Medicare are likely to ask for a premium increase consistent with the expected cost of living adjustment from Social Security, leaving may struggling to better their current situation.

According to reports, the Social Security Administration is poised to increase monthly benefits by 2.2 percent, a raise from an average monthly allowance from $1,360 to $1,390. Although the increase is not dramatic, it is much higher than the miniscule 0.3 cost of living adjustment given last year. Those cost of living increases from the Social Security Administration are important because they have a direct impact on whether or not Medicare can increase premiums.

Under the law, Medicare’s board of trustees cannot allow any premium increases that would effectively decrease the amount of benefits individuals would receive from Social Security. While seniors did not see any increases in their Medicare Part B premiums over the past few years, this was because there was no corresponding increase in Social Security benefits.

Estate Planning for Young Families

Published on: November 13, 2017 | by Ettinger Law Firm

Starting a family is one of the most exciting times in our lives. With marriage and children comes responsibility to plan for our futures and ensure our loved ones are taken care of in the event of tragedy. While many young families may feel as though they can put off planning their estate, the truth is that it is never too early to start or too late to revise.

One of the first things new families will need to consider is appointing guardianship for children in the event both parents pass away. Although it is difficult to think about, children need to be entrusted to a reliable person to raise them to adulthood. The difficulty often lies in both parents coming to agreement on who should raise the children in a scenario like this.

Another important step is naming an executor to your estate to ensure your children receive all that is due to them should both you and your spouse pass away. Choosing who will manage your estate can have a tremendous impact on the situation and should be someone trustworthy and willing to go the distance until the children are grown and able to take responsibility.

Registering your Will with a Probate Court in New York

Published on: November 12, 2017 | by Ettinger Law Firm

After taking the time to plan and execute a will, many people wonder what to do with the actual document to ensure it stays safe and can be found by the executor when the time comes. Without the original, executed copy of the last will and testament, the executor may be unable to pass the estate through probate and the court will consider the estate to be in intestacy.

Some of the most common places people keep their wills can include the office of the attorney who may have helped draft the will and advise the client, a safe deposit box in a bank, or in a fireproof safe at the individual’s home. Each of these scenarios have strengths and weaknesses and what may be the right fit for one person may not be the best for another. In any case, the executor’s access to the original copy of the last will and testament is crucial to the estate passing through probate.

Another less well known option is the register the original copy of the will with the appropriate Surrogate’s Court while the testator is still alive. Filing the will with your local probate court is a good plan in case the executor to your estate cannot find the original copy of the will or if you believe the document may be subject to tampering.

The Importance of Digital Assets in Estate Plans

Published on: November 9, 2017 | by Ettinger Law Firm

Laws that address how a person’s estate should be divided after their death were created at a time when no one had anticipated the onset of the electronic era. Today, however, there are many important elements of a person’s life that involve digital files. Some of the most common examples include electronic bills that are not printed in paper form and profiles created through social media accounts that contain personal information.

It is critical that individuals who have important information that exists in digital form take proper steps to prepare their account in case of their unexpected demise. If these preparatory steps are not taken, individuals are at risk of having their assets or estate being divided in a manner that they might not have desires. This article will review some of the most crucial tips that should be followed during estate planning by individuals with digital assets.

Tip #1 – Adequately Record Account Names and Passwords

Common Myths About Estate Planning

Published on: November 7, 2017 | by Ettinger Law Firm

A large number of individuals are confused about some of the complicated issues involved in estate planning. It is critical, however, that individuals understand all of the details about estate planning. Failure to properly understand the estate planning process can result in individuals facing some substantial difficulties including improper administration of assets.

Myth 1 – A Last Will and Testament Avoid Probate

In actuality, in the state of Florida, even if a person writes a Will and Last Testament, the individual is still required to make sure that a decedent’s assets are passed to the proper heirs and beneficiaries.

Joint Ownership in New York

Published on: November 4, 2017 | by Ettinger Law Firm

Many of the assets we own are held in joint ownership with another person, typically a spouse or other family members. Types of assets commonly held in joint ownership with others include homes, real estate, bank accounts, and other investments. When it comes time to writing a will and engaging in estate planning, asset holder need to understand the different types of joint ownership under New York law and how it can affect the outcome of passing an estate through probate.

One of the most familiar forms of joint ownership in New York is known as joint tenancy with rights of survivorship and is very common between married couples for joint checking accounts, homes, and other property. Under this type of arrangement, assets do not need to pass through probate since the surviving spouse or person automatically receives the deceased’s property rights.

Under joint tenancy with rights of survivorship, each person has an equal and undivided share of the assets and is entitled to sell his or her share to another party. If a sale occurs, the joint ownership agreement becomes a tenancy in common and the assets lose some of the protections they otherwise would have enjoyed under a joint tenancy with rights of survivorship.