Elder Law

Long-term Care Planning for Older Americans

Published on: March 19, 2019 | by Ettinger Law Firm

The best time to plan for long-term care is when you are mentally and physically well. While it is a task often avoided, thinking about how you wish to be cared for when you become older or are suffering from an illness or incapacitation is important for you and your loved ones. The only way to ensure that your wishes are followed is to write them down and communicate them to others.

People live longer these days even with serious illnesses and various stages of incapacity. There are steps you should take to plan for any potential future period of incapacitation to protect your finances and the ability for your family or loved ones to afford to care for you as you get older and in need of assistance to care for yourself. A catastrophic accident or medical emergency may alter the course of your life forever. Once these acts occur, you may or may not be in the position to make decisions for yourself. Having a plan will help your family and you focus on healing and living again.

To guide your thoughts, begin by thinking about the answers to the following questions:

Preventing the Claw Back of Gift Transfers Under the 2017 Tax Cuts and Jobs Act

Published on: March 17, 2019 | by Ettinger Law Firm

The popular adage that the only two things that are certain in life are death and taxes is a good starting point as we begin our discussions on the topic of the possibility of the claw back of gift transfers under the 2017 Tax Cuts and Jobs Act.

According to the Internal Revenue Service (IRS), an estate tax is a tax on an individual’s right to transfer property (cash, real estate interests, or other holdings) at his or her death. An accounting of everything owned on the date of death is made and a tax is levied. This tax can greatly reduce the value of the overall estate, cutting the value of the gifts bequeathed in the will, because the tax must be paid before the gifts made in the will can be disposed.

A method people use to reduce the imposition of the estate tax is to make a gift of money or property to someone during an individual’s lifetime. This gift however may subject the person giving the gift called a donor to federal gift tax. Each year, donors are permitted to make gift transfers that are tax free if they are made under the threshold limit. For example, in 2019, the gift tax exemption amount is $11.4 million. By making a transfer by gift under the threshold limit, the donor and estate avoid paying taxes on that portion of the estate.

Medicare for All or Medicare at 50? Expansion of Medicare and Medicaid, Part 2

Published on: March 14, 2019 | by Ettinger Law Firm

We are examining proposals at various stages of the legislative process to expand Medicare and Medicaid healthcare coverage to either provide universal healthcare coverage to all Americans or expand eligibility of individuals currently not covered by the Affordable Health Care Act.

Our last post examined two proposals to expand Medicare and Medicaid by introducing universal health care coverage or allowing individuals to buy a private plan using Medicare and Medicaid efficiencies and cost-savings to Americans.

Elimination of employment-sponsored healthcare plans

Medicare for All or Medicare at 50? Expansion of Medicare and Medicaid, Part 1

Published on: March 11, 2019 | by Ettinger Law Firm

Medicare at 50 is a bill currently making its way through Congress that would allow anyone over 50 to buy into Medicare. Proponents of the bill want people between the ages of 50 and 65 to be able to purchase a private Medicare health insurance plan and obtain the same tax credits and cost-sharing subsidies as those offered under the Affordable Healthcare Act.

Medicare is a national health insurance program for Americans 65 and older that helps individuals pay for medical care and treatment, including hospitalizations, nursing home care, prescription drugs, and medical supplies and equipment, among others, as they age and retire. Medicare is not free. Seniors pay an annual deductible and are responsible for co-payments and part of their prescription bill.

By and large Americans, of all ages and political denominations, are worried about the availability and affordability of healthcare services. Individuals able to retire are postponing retirement in order to maintain employer sponsored healthcare. Especially if there is a spouse suffering from a chronic illness, the working spouse may need to maintain an employer-sponsored health insurance plan to keep a younger spouse insured.

Probating an Estate Following a Loved One’s Death

Published on: February 28, 2019 | by Ettinger Law Firm

Following the death of a loved one, most people would rather think of anything else than finances, assets in an estate, or something besides the memories of the person who passed away and left our lives. However, the time will eventually come when the person named as the executor to the deceased’s estate will need to begin the probate process and divide assets among heirs and settle any outstanding taxes and debts.

Sometimes, it may take a family effort to account for assets and pass the estate through the probate court, making cooperation and understanding all the more vital to moving along with a process during and already difficult situation. However, the responsibility to pass the estate through probate will ultimately fall onto whoever was appointed as the executor of the estate in the last will and testament of the person who passed away.

First, any valuable property will need to be secured and accounted for as these items may be listed in the deceased’s last will and testament to be distributed amongst heirs, family, and friends. This should be done as soon as possible as it may be more difficult if surviving relatives help themselves to the deceased’s property while under the impression it may have been promised to them but otherwise not recorded in the will.

Frequently Asked Questions About Powers of Attorney

Published on: February 24, 2019 | by Ettinger Law Firm

For a lot of people, vestin a power of attorney in another individual is one of the most important aspects of estate planning they may have to undertake, possibly even more important than drafting a last will and testament. This is because a power of attorney, sometimes referred to as a durable power of attorney, is charged with making financial and health care decisions on another’s behalf in cases where that individual is unable to do so.

Without a power of attorney, families will need to wait for a judge’s order to appoint a guardian over their loved one’s affairs in the event he or she becomes incapacitated. This can result in increased legal and emotional hardships on family members coping with an already difficult situation. The utility of powers of attorney is that they do not take effect until an individual is incapacitated but when they do, these power take effect right away.

One common question folks have about powers of attorney is whether their rights are diminished in any way by vesting authority in another person to make financial decisions. Granting another person power of attorney over one’s affairs does not limit one’s rights in any way, the authority simply gives the other person the power to act when or where one cannot. That being said, it is extremely important to choose someone you can place your trust in.

What your Estate Plan Should Include

Published on: February 20, 2019 | by Ettinger Law Firm

Having a well through out, defined estate plan is one of the most important things we can do for ourselves and our families during our life. Without an estate plan, your assets may be thrown into the uncertainty of probate court and legal challenges from interested parties that may feel they are somehow owed part of your estate. Those are just some of the very good reasons to have an estate plan and one that includes more than just a last will and testament.

For starters, an estate plan should include a revocable or “living trust” to pass assets onto friends and family while avoiding probate. Sometimes referred to as an “inter vivos” trust, it is a legal document through which assets are placed into a trust for your benefit during your lifetime and then transferred to designated beneficiaries at your death by your chosen representative, called a “successor trustee.” They are called revocable living trusts because they can be amended at any time and are created during the grantor’s lifetime.

Next, your estate plan will require a last will and testament to pass on any personal or sentimental items not covered by the trust. The will can also give specific instructions for when and how these assets are to be disbursed as well as give surviving family members clear burial instructions and otherwise pass on any other sentiments that are wished to be expressed.

Nearly Half of Americans Over 55 Have No Will or Estate Plan

Published on: February 17, 2019 | by Ettinger Law Firm

A recent study by Merrill Lynch and Age Wave found that almost half of Americans over 55, have no idea what will happen to their assets when they die because they don’t have an estate plan or will. People often put off planning their estate because they are not ready to contemplate their morality or to make the difficult decisions about their medical care and treatment in the event of incapacity because of a mental or physical disability. The subject is difficult. However, without an estate plan your family is in for a rough ride.

The study identified stumbling blocks that prevent people from creating a will or engaging in estate planning include:

Spouses with children cannot agree on who should be appointed guardian in the event of their death.

The Life-Changing Magic of Planning Your Estate

Published on: February 13, 2019 | by Ettinger Law Firm

Marie Kondo, an organizing consultant, has taken the world by storm with her two-step approach to tidying up in her best-selling book, The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing. First, she encourages people to one-by-one hold in their hands everything they own. Once in their hands, people should ask themselves if the item sparks joy. If it doesn’t, Kondo’s approach thanks the item for its service and then puts it in a trash pile. Second, once people identify which of their possessions gives them joy, they should place it in a visible and accessible place. Only then, will adherents to this method, experience the magic of tidying up once and for all.

We thought about this concept and how it can be used to help plan an estate. Planning an estate is a hard and uncomfortable process. It asks you to contemplate your mortality. At the end of the process you have not thrown anything out, but simply begun a process to transfer one of your possessions to someone else. While your family and friends may have a joyful reaction to receiving your beloved cabin home in Maine, that joy will be sparked by your own death. What follows are lessons we learned when we applied Kondo’s tidying up approach to estate planning.

Step One: A proper estate plan will determine what will happen to your property and how your assets will be distributed in the event of your death. It will also consider how decisions will be made regarding your medical care and treatment and finances in the event of mental or physical incapacitation. With the former, you will need to clearly articulate your wishes about your medical care. With the later, one by one, you will need to consider your property and assets and determine what will happen to it when you die. Gifts can be made to family members, friends, charitable organizations, and other testamentary instruments, like a trust.

Estate Administration Disputes

Published on: February 9, 2019 | by Ettinger Law Firm

Family disputes often arise in the estate administration process. Especially if there is money at stake, a disgruntled family member or other interested person may be unhappy with his or her inheritance, or lack thereof. A personal representative of an estate or trust may be forced to deal with a challenge brought by one of them.

When the estate itself is illiquid, difficulties arise that when challenged often mean less is available for distribution when the dispute is ultimately resolved because of the simple fact that the asset cannot be divided but instead must be sold to be distributed. The sale and challenge are an additional cost that gets paid by the estate before an asset can be distributed. When an estate plan (a will or a trust) is challenged, the three most common reasons are listed below.

A challenge to the validity of the estate planning documents is often initiated by a disinherited family member or someone who believes, rightly or wrongly, that they are receiving less than what was gifted. A challenge to the administration of the estate or trust is really a complaint against how the personal representative is handling the administration of the estate. Usually in these scenarios, an interested party alleges that the personal representative is not doing his or her job, is using the estate or trust assets for the personal representative’s own benefit, or is acting against the beneficiaries’ best interests. The third scenario is a challenge to both the validity and the administration of the estate or trust.