Caregiving

Estate Planning 101 – What Is the Difference Between a Trust and a Will?

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

When you begin estate planning, there are a variety of options that are available in order to plan how your estate will be distributed and may seem very similar, however, they all have distinct benefits. Two main estate planning tools commonly used are wills and/or trusts, but their main features are very different. When determining which tools are right for you, you should first assess what stage of distribution and what assets you wish to control.

Trusts

There are a number of different types of trust that one may use, depending on what their intentions are. Trusts can be enacted during the grantor’s, also known as the person who made the trust, lifetime, or may take effect upon the death of the grantor. When forming a trust, the grantor seeks to transfer their property to the trust, which is run by a trustee. A trustee can be any number of people, but are neutral third parties who are employed to operate in the best interest of all interested parties involved, including both the grantor and those beneficiaries.

Common Reasons to Contest a Will

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

When a deceased individual, known as a decedent, leaves a Will, family members and friends that have reason to believe something may be wrong with that Will may be able to have a court rule that the Will is invalid in some situations. The following are examples of common situations in which a person may have reason to ask a court to overturn a Will, most of which can be avoided by working with an attorney to create a valid Will.

The Will Does Not Comply with Law

There are several specific requirements the person making a Will, known as the testator, must comply with for a Will to be valid in New York. Basically, these include:

Negligent Wound Care in Nursing Homes

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

Part of the important tasks of caregivers in nursing homes is the care of wounds. Many patients have wounds of various types. Staff members must take note of any scrapes, lacerations, pressure ulcers, or other wounds, and take steps to properly treat them. This wound care is part of the daily assistance that should be provided at nursing homes and other care facilities.

Identify Wounds

The first step in treating wounds in nursing home patients is to identify them. It may not always be easy to recognize medical problems. For this reason, caregivers need to be properly trained to watch for wounds on nursing home patients. Some residents are more susceptible to wounds than others. This increased risk factor should be noted in their records so that staff members are more careful to watch for these types of problems.

Trusts: Your Right of Withdrawal

Published on: December 27, 2016 | by Ettinger Law Firm

Every trust document is different; the terms of a trust can vary greatly, giving the beneficiaries either a broad range of power or can limit a beneficiary’s power to only include specific rights. Some of the differing terms of trust include: how the income and principal investments are able to be distributed, when, and under what circumstances, if the objective of the trust is either for growth or to maintain balance, when a beneficiary receives a distribution and under what circumstances, such as age attainment or education attainment, as well as whether the beneficiaries have a right of withdrawal also known as 5 by 5 clause.

What is a 5 by 5 Clause?

A 5 by 5 clause, or right of withdrawal, must be specifically stated in the governing trust. The right occurs once a year generally, and will allow the beneficiary to take up to 5% of the value of the trust out to be included in their current tax year or to take $5,000, whichever is greater at the time. If the trust contains a right of withdrawal, the trustee must notify the beneficiary within a reasonable time of their ability that year to withdrawal and the beneficiary must indicate their wish to exercise the right in part or in total or whether they chose to forego taking the amount. In order for the beneficiary to qualify the income under present interest, and therefore exempt under the gift exemption that year, they must have a vested economic interest to the income and principal of the trust.

Securing Quality Care – Nursing Home Appeals

Published on: December 23, 2016 | by Ettinger Law Firm

Nursing Homes

Elderly adults end up in nursing homes for a variety of reasons, including rehabilitation after a hospital stay, voluntary admittance in order to have assistance with their daily care, disability, as well as problematic behaviors associated with mental conditions such as dementia. In order to be admitted and afford to one of these nursing homes, many elderly adults rely on government programs such as Medicaid and Medicare. As a result of their reliance on government funded programs, some nursing homes will end services for an individual if their coverage is running out or they feel that the patient is ready for release, however, the patient may not agree with that same reasoning.

Why Am I Being Discharged?

Ongoing Challenges – Housing and the Elderly Population

Published on: December 20, 2016 | by Ettinger Law Firm

The cost of living continues to grow every year, making it difficult for those who have saved for the future, but did not anticipate how dramatically their expenses would increase. Several of our previous posts have noted the concern that have been raised regarding our nation’s ability to cover the costs of our aging adults through Social Security, Medicare and Medicaid, however a recently released study by the Joint Center for Housing Studies at Harvard University further confirms those notions. The study found that there the current generation that has retired or is coming upon retirement is facing greater financial trouble, leading to a lack of accessible and adequate housing, a problem for a population that will double in size.

There are specific elements of housing that need to be considered for the aging population, including accessibility to entrances either by ramp or walk up, single floor housing, whether that is in an apartment or a home, as well as wider entrances and doorways and walk in bathroom units, that are compatible with the size of wheelchairs and healthcare devices. However, according to the Center, only 3.5% of homes right now currently adhere to these elements of architectural design that are critical to elders staying in their homes. While a simple fix that many may propose would be to renovate the home in order to make it accessible, these types of renovations cost thousands of dollars that many elderly individuals cannot allocate out of their budget.

In an effort to maintain their housing situation, some elderly individuals have decided to cut back on transportation, refilling medicine that may be critical to maintain their health, as well as cutting back on buying food. All of these consequences lead elders to seclude themselves, which can further exacerbate health problems. Up to 95% of informal care for elders being taken on by family members, thus, it is important for elders to continue to maintain those relationships and for family members to be able to access their elderly family member and provide assistance in a safe environment.

Back to the Basics – Understanding Contested Estates

Published on: December 15, 2016 | by Ettinger Law Firm

Probate and Contested Estates

When an individual dies, their transfer of property through the legal system is known as probate. During this process, the court determines the validity of a legally formed will or a how property will be distributed if it has not been designated to be inherited by another named party. When an estate enters probate, all of the debts and taxes owed by the deceased on the property are paid, any remaining income, dividends, stocks or investments are sold and the property is distributed or transferred out to the heirs of the deceased. While the deceased individual can leave property or assets to any party they wish, there are certain situations that call into question the validity of the transfer. If one of these suspicious situations arises, a party may raise a contested issue with the distribution.

Examples of Contested Estate Issues

Sumner Redstone Sues Claiming Elder Abuse

Published on: December 13, 2016 | by Ettinger Law Firm

Sumner Redstone, the 93 year old media mogul who has infamously alienated both family and friends over the past few years while determining the terms of administration for his estate, added another dramatic chapter last month when he made claims of elder abuse against two of his former girlfriends. The billionaire business man has claimed that his two former girlfriends conspired to take advantage of his wealth and now owe him over $150 million dollars, given in gifts over a period of years.

Some of the gifts to the women included designer clothing and bags, access to any of Redstone’s credit cards, vehicles and real estate located throughout the world. In addition to the gifts given while alive, both women stood to inherit nearly $23 million dollars each, before Redstone altered the terms of his will when he evicted the women from his home. There were numerous tax implications that came with the gifts given by Redstone that left him in financial trouble.

Last year, Redstone’s mental competency was called into question when one of his girlfriends, Manuela Herzer, filed a lawsuit against Redstone following her eviction from his home. The former girlfriend then petitioned a court to regain decision making power of Redstone’s estate and to regain what he originally set aside for her in his will. Herzer made allegations of financial abuse by his family members, however, her case was thrown out after testimony by Redstone was released from a deposition hearing proving that Herzer maintaining decisionmaking power would not be in his best interest.

Dementia on the Decline and How it Impacts Elder Care

Published on: December 2, 2016 | by Ettinger Law Firm

A study released in late November in the JAMA Internal Medicine journal reported that dementia rates for individuals over the age of 65 years old is down almost 24% from rates found in 2000. There are a variety of reasons why this decline may have happened, including elders with higher education levels than those before them, as well as better heart and brain monitoring, and more awareness as to social and behavioral changes that elders have as a way to combat Alzheimer’s Disease.

This news comes as a welcome surprise, as in 2016, 5.4 million Americans lives with Alzheimer’s Disease, roughly translating to one in nine people over the age of 65 years old. By 2050, the elder population will have tripled in size, amounting to a staggering 84 million people over the age of 65 years old. With the aging population growing at such a rapid pace, medical, legal and social professionals are working to determine how to cope with such a large amount of the population potentially living with this disease.

These recent findings shed some light on how the disease, which generally exhibits symptoms of memory loss, confusion, limited social skills, mood changes and disorders as the result of irritability and anxiety, as well as confused speech and muscular movement.

Back to the Basics – The Gift Tax

Published on: November 28, 2016 | by Ettinger Law Firm

Putting your assets in an irrevocable trust has a number of benefits, including: allowing the settlor, also known as the maker of the trust, to establish how his or her assets will be kept and eventually distributed, it allows the settlor to have access to the income produced by the trust, as well as the numerous tax benefits such as capital gains taxes being either deferred or in the event of gifting, avoided.

According to the Internal Revenue Service, the federal tax code applies a gift tax on an individual level, however, that tax does not apply to trusts. If you transfer funds from your personal account, whether it is a savings or checking, to another, in excess of $14,000 you will be subject to a tax for the gift made, however, the IRS does not place these same taxes on trusts, depending on how the gift was made.

If the beneficiary makes a discretionary gift to another, a gift that can be shown to be made for the immediate benefit of another, it depends on whether the donation is viewed as present or future interest in the gift. If it can shown that the gift was made for the future interest of another, the IRS will not subject the trust to gift tax, however if it can be perceived that the gift was made for a temporary relief of another, the gift tax will be applied to the donation made.