Blog Post Archives - Page 4 of 4

Giving to the Right Charity at the Funeral: Using Your “DORA”

Posted on June 26, 2015

I attended the wake of my friend Michael on Monday. He was a funny, likable, handsome man of 29 years of age and died unexpectedly. Like so many other people, I will miss Michael’s good humor and positive attitude. At the wake I noticed that his family had requested that any people who were so inclined could make a charitable donation to the Asthma and Allergy Foundation of America. Here was a young man who had no idea his passing was imminent, and his family had decided to ask for donations for a cause that was relevant to him, but he may never have voiced an opinion for or significantly donated to himself. And it suddenly hit me: I have

Commercial Annuities: Medicaid Giant Killers

Posted on June 19, 2015

In a brief past career I was an annuity marketing specialist at an independent brokerage firm. I consistently reviewed and explained over 800 different brands of annuities to financial planners. Most annuities may offer income for life or a set period of time, some have guaranteed living benefits or guaranteed death benefits, some have up-front bonuses or stock market indexing. I bring this up to show that I am well aware of many of the features and benefits of annuities. However, for Medicaid planning there is nothing more potentially ruinous than owning an annuity outside of a retirement plan. Remember that Medicaid planning is an “asset game”: While we can do little to influence our beneficiary’s income, we can

Tell Your Estate Attorney About All of Your Assets

Posted on June 8, 2015

Some people are naturally secretive about their finances. People either feel judge by the level of their assets if they believe they don’t have enough, or they don’t trust anyone enough to say where all of their assets are. And so stock certificates are held in file cabinets, cash is stuffed in loose books, funds are held overseas, and random banks and passbooks hold small account balances. My message to you: Secrecy may cost you dearly when you pass away. Whenever you earn interest, the IRS receives a 1099 from the financial institution. When I have a recently deceased client whom I suspect has withheld account information (despite my urgings to let me know during her lifetime) I ask the

You Are Not Entitled to Medicaid

Posted on June 1, 2015

I meet a lot of procrastinators. People who wait too long to deal with a serious issue, then figure they can fix it just by coming to an attorney. The best example is Medicaid Planning: Maybe a person wants to preserve their assets, but does not want to give up control and does not trust their children to have control. Or he wants to see what the future holds and then…and…and….. …And then “the event” that finally requires wealth preservation happens and no steps have been taken. The client has held onto their assets for too long and then has a stroke, or quick onset of dementia, maybe Parkinson’s develops, and the client is now in a rush to become

Give It Back! New York Turnover Proceedings

Posted on May 20, 2015

When a person passes away many people have a tendency of ransacking the decedent’s home and absconding with property. Co-Signers run to the bank to empty the safe deposit box (which they are NOT allowed to do in New York), people with access to the house take all types of personal belongings (so you know, the door locks should be changed immediately), and some people illegally use the decedent’s credit cards. Other people will accumulate mail containing financial information, then act as they see fit. Other times people will have an incapacitated person sign a Power of Attorney or blank checks, or even forge the signature. When that person dies the property that was supposed to go to one person goes to

Wills Only Deal With a Deceased Person’s Money

Posted on May 13, 2015

The title of this blog seems clear: A will only deals with a deceased person’s money. But what exactly does this mean? Is a retirement plan such as an IRA a deceased person’s money? How about a life insurance policy owned by the deceased individual? The term “estate” means many things, though the term essentially means “property”. Real estate is often referred to as real property by attorneys. The “gross estate” means all property owned by the deceased person for taxation purposes, meaning everything they have control over (including life insurance, some joint property, and retirement plans). However, the “Probate Estate” is only property that passes through probate. Probate proceedings do not distribute funds paid outside of probate. Life insurance

Asking Your Attorney About “Wise” Investments

Posted on May 5, 2015

Attorneys have a reputation for “killing” more deals than they enable. In my experience this is a true statement: Several clients make haphazard investment decisions, such as signing contracts with “silent partners,” getting involved with high risk investments (my least-favorite: forwarding money for an independent film), or getting their feet wet with a new sure-thing-get-rich-quick scheme (i.e. flipping a home or entry into the rental real estate market). Several attorneys can share horror stories of clients break their backs and banks on these ventures. But the question that should arise is often overlooked by the client: Does the attorney actually have any qualifications or experience to condone or dismiss the investment cost? By their nature, most lawyers are good with

GUEST BLOG – Sheila O’Brien, R.N., B.S.N., C.M.C. of O’Brien Care Management: Benefits of Hiring a Nurse Care Manager

Posted on May 4, 2015

A call comes in saying that mom has been hospitalized and you feel lost. Your loved one is showing signs of forgetfulness or neglect and you feel lost. You are concerned that a parent is at risk for falls or medication noncompliance and you feel lost. These are all too common scenarios in our busy lives. A Nurse Care Manager provides the answers to the difficult and all too common question, “what do I do next”. A Nurse Care Manager provides comprehensive oversight to a variety of individuals in need of help. Care Managers rely on their healthcare experience when managing home staff, and coordinating all aspects of care within an interdisciplinary approach. These services are tailored to the

GUEST BLOG – Alix Purcell of Alix LLC Brand & Marketing Strategy: How Will You Be Remembered?

Posted on April 24, 2015

The thought of dying is an unimaginable event to most people. As a result it takes a lot to sit down and anticipate the outcome you’d like for your heirs upon your passing. Going through the legal process of pulling together a will and testament is difficult enough, but rarely do people go beyond this to consider the emotional impact of the content they leave behind upon passing. I encourage you to reconsider the attention you give to this important topic. In my marketing consultancy work in content creation, I see the impact that carefully chosen language can have in completely transforming a message and connecting with a market in business, but imagine this impact in your personal life. .

Dealing With the Unthinkable: Handling Affairs After the Death of an Adult Child

Posted on April 24, 2015

I was 4 years old when my father passed away. This obviously caused me a great deal of childhood trauma, and the associated financial and emotional cost to my family to “rehabilitate” me was substantial. Only as I have aged and entered this profession have I become aware that his death seriously affected many other people in the family, not least of which was my mother. But instead of choosing the more obvious individuals, let’s discuss the strain that affected his parents, my grandparents. Depending on the family’s financial dynamic, the loss of an adult child can be absolutely devastating: Some parents have placed an enormous amount of resources on raising that child, and may have sacrificed to the point

PROBATE: Beware the Court Clerk!

Posted on April 13, 2015

For those of you that missed it, my March 26th blog post spoke of the importance of being exceedingly nice to court clerks while initiating the Probate process. The clerk is (a) extremely knowledgeable as to how Probate works, (b) the gatekeeper and only individual who can begin the proceeding, and (c) a human being with feelings. As such, treat them with respect. That is not what this blog post shall cover. Clerks, like all people, are human beings and human beings are fallible. You have to understand and accept this fact, or your visits to the Surrogate’s Court will end in you wanting to drown your bad mood at the nearest Happy Hour. I have had clerks tell me

GUEST BLOG – Chet Davis: How Home Buyers Can Obtain the Best Home Mortgage

Posted on April 7, 2015

Obtaining a home mortgage is one of the most substantial financial transactions that most families will ever negotiate. The mortgage loan process can take 60-90 days from the signing of a Contract of Sale on a purchase through closing. The loan application and related paperwork can be hopelessly confusing. So, how do you obtain the expertise for the one, two or maybe three times in your life that you’ll buy or refinance your home? Options for finding a mortgage include: Calling your local retail bank Going on a website like Bankrate.com or www.lendingtree.com Asking friends and family for recommendations Consulting with a residential mortgage banker Regardless of your approach, every home buyer needs to know the following before looking for

GUEST BLOG – Philip Swift: Falls Prevention Awareness

Posted on April 6, 2015

Falls, the majority of which occur at home, are the leading cause of injuries or death for those over aged 65, according to the Centers for Disease Control and Prevention (CDC). BAYADA Home Health Care – a leading national provider of home health care services – offers important suggestions to help people remain safe at home and reduce their risk of falling. “It’s important for seniors to accept that sometimes they need help to remain safe at home,” said Sharon L. Driscoll, RN, CRRN, director in the nursing office at BAYADA. “We found that the number one reason for falls in the home is lack of supervision or assistance. Not surprisingly, people want to be independent, even as they age,

GUEST BLOG – Cari B. Rincker, Esq: Farm Estate and Succession Planning

Posted on March 28, 2015

In the words of Ben Franklin, “[f]ailing to plan is planning to fail.” About 90% of farming operations do not survive the transition to the next generation. There are many possible reasons why a family farm does not succeed to a future generation; however, poor estate and succession planning is a prominent concern among the agricultural industry. After all, the average age of the American farmer is approximately 65 years old with very little (if any) estate or succession planning. In way of background, the term “estate planning” involves how the farm assets will be distributed to the heirs while “succession planning” delves into how the agri-business will continue to the next generation. Your objectives will help guide the entire

PROBATE: Be Nice to the Court Clerk!

Posted on March 26, 2015

When a person passes away, New York requires the Will and other paperwork be filed with a law clerk, in the Surrogate’s Court in the County in which the Probate Proceeding will be held. And while the Surrogate’s Court Procedures Act explains how such legal matters are supposed to proceed, each county is somewhat different as to how these requirements should be met. While these differences may frustrate an attorney unfamiliar with a certain county’s requirements, it tends to drive “Pro Se” participants (I.e. the “Do It Yourselfers” who are not attorneys) to the brink of insanity. And when people act irrationally, the administering clerk will likely transform from helpful to defensive. I was in one of these courts today

Handling the Empty Nest: Securing the Recently Departed Loved One’s House

Posted on March 24, 2015

When a person passes away there are several matters to take care of, the FIRST of which is securing the premises. One of my biggest concerns is the possible “Dash and Grab” that dishonest (needy?) family members perform when they hear of the recently departed family member and run to strip the house of assets with financial or sentimental value. And, as much as I hate to use stale idioms, “Possession IS 9/10ths of the law.” Here are steps you can take to secure a family member’s personal belongings upon their passing: CHANGE THE LOCKS: If the house was owned by the decedent, consider doing this to protect the property inside. CANCEL CREDIT CARDS / FREEZE BANK ACCOUNTS: Supplying a

“There’s No Place Like (the Nursing) Home…” Avoiding the Trip from Kansas to Oz

Posted on March 24, 2015

Many of us remember Dorothy in the Wizard of Oz saying “There’s no place like home.” And it’s true. Whether we own or rent the premises in which we reside, the one place we hold as sacred is the one we relax and sleep in: Home. No client wants to be swept away in the tornado that is a Nursing Home. Elder Law attorneys try to smooth over the term by calling it an “institution”, a chilling word which is (shockingly) not that much more comforting. Either term instantly invokes the thoughts of bad smells, confused or infirmed individuals, bad food, hospital beds, and misery before death. Truth be told, the “best” nursing homes I have seen are not places

ESTATE PITFALLS: Simple Things that Will Save Your Estate Money

Posted on March 24, 2015

I will not belabor the point: It costs far less time and money to fix things while you are alive than after your passing. I cannot tell you the number of estate cases I have personally fielded that simultaneously frustrated and burdened beneficiaries and padded my own wallet with no real necessity to do this from the beneficiary side. Here are some things you can do to pass more money to your beneficiaries and less to the attorney administering to your estate: STOCK CERTIFICATES: Yes, these still exist. Some stocks may have split, some may have been merged into another company, some certificates may be lost or not in a convenient place for your beneficiaries to find them. Transfer these

SIBLING RIVALRIES: The Funeral: Who is in Charge?

Posted on March 24, 2015

The first sibling rivalry goes back to the “first” siblings, Cain and Able. It was not the last (though the outcome was a little more dramatic than the average sibling rivalry). Of the many rivalries that have taken place since, one that is too often overlooked is over the parent’s disposition of their remains upon their passing. I have seen situations where one sibling [we’ll call him “brother”] was the local child living with his mother, and the more distant child [“sister”] lived a few thousand miles away. Brother and sister had not liked each other for decades. When mom passed away, brother did not tell sister, and decided to hold a small funeral where mom’s funeral service was highly

GUEST BLOG – Jennifer DiClemente of the American Cancer Society, Inc.: Charitable Planned Giving

Posted on March 16, 2015

Leaving a “planned gift” to charity is not always the first thing that comes to mind when you begin considering your estate plans. But utilizing this tool can be a powerful option for individuals, families and charities alike. These special gift arrangements often provide significant financial benefits such as increased income, lower income tax, bypass of capital gains, elimination of potential estate taxes, diversification of assets, and more—all while helping to support a cause you believe in. Anyone can take part in a planned giving program by remembering a charity in their estate plans. When you hear the expression “planned giving,” you can consider the face of a youthful female, busy raising three children. This is the way one of

GUEST BLOG – Dr. Jomarie Zeleznik: An Elder Attorney is Holding the Umbrella

Posted on March 4, 2015

Doris is 97 years old and has lived in the same cozy apartment in the Bronx for 38 years. Every night she takes an elevator ride to her daughter’s apartment for dinner. Three other children live within driving distance and only her oldest son lives far away. In this family give and accept are done without the words “obligation” or “burden.” Doris saved for a rainy day in old age, and like many middle class people of her generation she also saved to leave something for each of her five children. I am told she reads her financial reports weekly and is still earning from wise investment choices. Many years ago, Doris set up five separate accounts in her own

Medicaid Planning: Don’t Be Too Eager to Take Mom & Dad’s Money

Posted on February 24, 2015

When a parent gets to the point where they consider enlisting personal care, such as home cleaning, cooking, or even more advanced issues such as help bathing or toileting, their children have been considering it for a while. Oh, and the children not only don’t wish to pay for mom and dad’s care: The kids want mom and dad’s money, and want Medicaid to pay for the care. Children feel entitled to their parent’s money. Believe me, they do, even “perfect children.” And several parents agree with the philosophy of “I’ve worked hard, and I don’t want the government to take my money, so I’ll leave it to my kids instead.” Let me be clear: When your parents are in

Medicaid Planning for the Single Non-Parent: Huh?

Posted on February 24, 2015

The heading of this posting says it all: I see very little reason for a single individual with no children to do Medicaid planning. Now let me explain why: First, Medicaid is designed to transfer family wealth. And yes, a niece, nephew, brother or sister are all considered family. But it is very rare that siblings or aunt / uncles share the same bond and sense of responsibility that are indicative of the parent / child relationship. Parents will sacrifice a great deal for their children, but most aunts and uncles have much more limited boundaries. I do see exceptions, but they are rare. Now for the real heart of the topic, and don’t be surprised when you read this:

Smart Ideas for Making Your Agents Known (When Needed)

Posted on February 24, 2015

Too many attorneys fail to inform a person’s Power of Attorney, Health Care Agent, or Executor that he/she has been named as a person’s agent or, even worse, fail to tell their clients to inform these people of their responsibilities. These practitioners appear to have the attitude of “I’ve been paid, you have your legal documents, let’s both move onto the next thing in our lives.” While this does not rise to the level of legal malpractice, it certainly is inconsiderate and potentially dangerous, for the following reasons: These documents are not public record. If there is an emergency, how is a Health Care Agent going to be identified by the admitting health care facility? The documents may be hard

Requiem for ILITs (Irrevocable Life Insurance Trusts)

Posted on February 24, 2015

My study group of like-minded Trusts and estates attorneys recently got together to discuss the ins-and-outs of ILITs. After a somewhat half-hearted review of the features and benefits of these trusts, we slowly realized the sad truth: It was time to bury these time-honored tax-saving mechanisms. An Irrevocable Life Insurance Trust (“ILIT”) is—surprise—an irrevocable trust that both owns and is the beneficiary of a life insurance policy. When estate tax exemptions were much lower several years ago, meaning that more people were paying a “death tax,” these trusts were ideal because, at death, the life insurance policy was paid to the trust and, when done correctly, transferred the proceeds free from estate taxes. This, coupled with the absence of income

2015 Medicaid Series: Beware of Transferring Too Much Too Early

Posted on January 13, 2015

My next several posts will be centered on Medicaid planning. This will cover topics affecting people who are planning for future transfers to their children, people with ailing parents, as well as those who have neither living parents nor natural beneficiaries. Let’s start from the top. People preparing precautionary Medicaid planning for themselves are typically (hopefully) planning several years in advance: They have reached their mid-late seventies and are starting to enjoy a less frenetic lifestyle, or may have long-term health concerns that are just starting to manifest. They have worked hard for their money, have a possible surplus of assets, and have no desire to use these asset to pay for what they perceive Medicaid will cover in the

2014 IN REVIEW

Posted on December 23, 2014

Happy Holidays and New Year! I hope this letter finds you in good spirits. 2014 was a very busy year in the Trusts & Estates and Elder Law field. Most of my predictions were wrong (again). I tend to err on the side of caution, however, so when I am wrong my clients typically win. Please allow me to share some legal highlights of this past year with you, and some professional insights as to how 2015 may look in the Trusts & Estates and Elder Law arena: THE BAD NEWS: INHERITED IRA CHANGE: BENEFICIARIES NO LONGER PROTECTED Issue: In the past, your IRA and other retirement plans were protected from creditors, with the exception of a spouse whom you

2015: The Year Trusts and Estates Goes Elder

Posted on December 23, 2014

A new year is upon us, and for those of us in the estate planning world it is time to define who we are and what we shall do in the coming months. The modern concept of the American attorney who specializes in tax, trusts and estates dates back to 1913, the year the Sixteenth Amendment of our Constitution was ratified, allowing the federal government to tax people’s income. This was followed by the Revenue Act of 1916, allowing a “death tax” on people’s estates. For one hundred years the profession has concerned itself with using exemptions, loopholes and other transfer mechanisms focused primarily on maintaining intergenerational wealth by saving money on taxes. For the umpteenth year in a row

Testamentary Trusts: The Good and the Bad

Posted on December 9, 2014

A testamentary trust is not applicable until (1) you pass away, (2) your will is successfully admitted to probate, and (3) the trustee establishes a trust account with funds delivered by the will’s executor. But what kind of property should you have distributed via these trusts? The advice of many estate planning attorneys is to transfer as little as possible by will: Probate requires: a good deal of paperwork notice to a potentially large number of familial and beneficial parties, a court clerk approval of submission of the will, the court’s over-all approval, etc. Probate also has a sliding scale for court filing fees, is a public affair, and takes a good deal of time to administer. Meanwhile, transferring property

Doing Separate Finances Right

Posted on November 17, 2014

Today, more spouses and unmarried cohabitants maintain separate finances. This is probably due to a number of factors, including increased salaries for women and an increase in second marriages and relationships with children from a previous relationship. While these arrangements may work amongst couples during life, they present significant estate planning challenges upon the death of one or the other. How much should the surviving partner get (which could conceivably be left to a future partner) and how much should the children get (to the detriment of the partner)? There is no easy answer. The majority of clients in this position have very concrete opinions about what they want, which makes my life far easier: I’m not a fan of

Burial Instructions in Your Will? Don’t Bother

Posted on November 17, 2014

Many people have an idea how they want their remains handled upon their passing, and want to ensure this method is respected. And unless you are like Vladimir Lenin and want the public to view your corpse in perpetuity (though I am not entirely sure he actually wanted this), when you pass away you generally want your remains to be dealt with relatively quickly. In the past people included their desires in their Wills, not knowing where else to state them. A Will has to be accepted by the Surrogate’s Court under the Probate process: (1) This requires an original Death Certificate which you usually get from a funeral home (but remember, the undertaker doesn’t know how to handle your

Your “Inherited IRA” is No Longer Safe

Posted on November 17, 2014

Individual Retirement Accounts are perhaps your most safeguarded and income tax-efficient asset: are deducted from your adjusted gross income for income tax purposes, principal grows tax deferred, and the account is protected from just about any creditor other than a spouse (even in bankruptcy and against lawsuits). At least that was the case until 2014. When a person passes away with an IRA, any beneficiary may take all funds out of the existing IRA as long as they do so within five years. This means all IRA assets are distributed quickly, negating long-term tax deferral and assessing income tax payments on the large distributions. And all funds are now out of the IRA, so they are no longer protected. A

“Estates a la Carte”: Restaurant Owners – A 3 Course Catastrophe

Posted on November 17, 2014

One of the more-challenging clients for estate planners is restaurant owners. While owning a restaurant is difficult enough during life, the problems that face these professionals at death are equally complex, time consuming and expensive. First, Appetizers: Most restaurant owners spend most of their money on additional restaurants. This creates a major problem with estate liquidity, particularly if they happen to own the real estate where their dining establishments are located (typically in high-tax areas). Otherwise, the establishment is locking into a long-term lease to which the lessor has the right to pursue rent for the remaining term of the lease against the deceased owner’s estate. In either case, substantial cash funds may be needed but are not available. Next,

“The Doctor is Out”: Medical Practices & Unexpected Death

Posted on November 17, 2014

Modern day medical doctors face a myriad of challenges: Lawsuits, hardships with creating referrals and collecting payments from third-parties (insurance companies and Medicare), onerous requirements of the Affordable Care Act and patient records, and the like. So just when we think the logical conclusion of these hardships would occur (death) we find out just how hard it truly is to be a doctor. A doctor has a requirement to maintain patient records for several years. This requirement does not end at the time of their passing. While today’s insurance environment and staff requirements have effectively made solo practitioners a dying bread, even a small group of doctors may not be prepared to process all of the records of their departed

Foreign Family Members: Will or Trust?

Posted on September 30, 2014

Several client or their spouses are immigrants who are not US Citizens or have several foreign family members. This poses several costs and challenges when choosing to pass property, and should lead one to ask if they should have property pass by a Trust or by Probating a Will. The following issues apply for people who reside overseas and do not pay US taxes, also known as “Non-US Persons.” Remember that having/opening a Trust avoids all of these costs: A Trust does not pass through Probate, does not require a Court to approve a foreign Trustee, and assets are distributed much more quickly and at less cost. First, any person who is a Non-US Person cannot serve alone as an

“My Estate” is the WORST Beneficiary

Posted on September 30, 2014

Unless you own property jointly or in a trust, certain items of property have to pass through your Probate Estate (i.e. under your Will). The car or bank account solely in your name, stock certificates (an awful form of property), the family house you did not place in a Trust, your personal property, all pass under your Will. Or, if you don’t have a Will, through Administration under the “Laws of Intestacy.” However, some people make the misinformed decision to leave “operation of law” assets, such as retirement plans or life insurance, to their estate. Let me be very clear here: This is a BAD idea. The only reason someone would errantly do this is because they want court supervision of

How to (and Should I?) Place My Cooperative Apartment in a Trust

Posted on September 25, 2014

Buying (and living in) a Coop can be a pain: Coop Boards dictate whether you can have pets, children tenants, hard wood floors, and when you pay increased maintenance and “special assessments.” They also decide whether or not you can place your Coop “In Trust,” thereby avoiding it passing through Probate via your Will when you pass away. First, the Coop’s legal counsel will want to review your Trust, often for about the cost you paid to draft it. They may require modifications and ask your beneficiaries to assume any future liabilities that may be assessed. You will then need to transfer the Coop shares for an additional cost, and produce your original Shares Certificate and Proprietary Lease (or otherwise