Elder Law

New York’s Medical Orders for Life-Sustaining Treatment (MOLST) Form

Published on: September 22, 2017 | by Ettinger Law Firm

In New York, patients have the right to make many decisions about their end of life care and even appoint a representative to do so in their interests if circumstances leave them unable to make such decisions for themselves. Using what is known as a Medical Orders for Life-Sustaining Treatment (MOLST) form, patients can create a doctor’s order that informs physicians and emergency care givers whether to administer treatment like CPR or place the individual on ventilator or other life-saving equipments.

MOLST forms can be used in combination with a do not resuscitate (DNR) order to help give patients the most control over how their health care is delivered in an emergency situation or at the end of life where tough decisions must be made. In order for the MOLST form to be valid, the document must be signed by your physician and yourself, otherwise doctors may continue to deliver treatment during and emergency. The form will become a part of your medical file and will transfer over to whatever facility you may be treated at.

The main difference between a MOLST and DNR order is the former covers a broader range of care doctors may deliver, including intubation, administering antibiotics, and interesting feeding tubes, with DNR orders only cover administering CPR. Often times, patients using a MOLST face a life-threatening medical condition or lives in a long term care facility like a nursing home or hospice.

How Much Does an Estate to Go Through Probate?

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

Planning your estate and having a last will and testament is important to ensuring your final wishes are carried out and your heirs receive everything you intend to pass on to them. Whether you are the testator or executor, there are many duties you will need to perform to make sure an estate passes as quickly as possible through probate court, including calculating the costs associated.

First and foremost, New York probate courts handling estates have a variable schedule of filing fees which depend on the size of the estate. Section 2402(7) of New York’s Surrogate’s Courts Procedure Act (SCPA) are as follows:

Value of Estate or Subject Matter Fee	Fee Rate
Less than $ 10,000	$45.00
$10,000 but under $20,000	$75.00
$20,000 but under $50,000	$215.00
$50,000 but under $100,000	$280.00
$100,000 but under $250,000	$420.00
$250,000 but under $500,000	$625.00
$500,000 and over	$1,250.00

Section 2402(8)(a) of the SCPA also proscribes a fixed fee for filing a petition to commence certain proceedings. These types of fees can range anywhere from $10 to $75, depending on the type of motion filed. Such petitions can include common probate proceedings such as filing wills and suspending a fiduciary.

What are the fees for executors in New York?

Under section 2307 of the SCPA, executor fees are based on the value of the estate. These fees can be between 2 and 5% of the total amount of estate money the executor receives and pays out. Executor’s fees in New York are as follows:

All sums of money not exceeding $100,000 at the rate of 5 percent
Any additional sums not exceeding $200,000 at the rate of 4 percent
Any additional sums not exceeding $700,000 at the rate of 3 percent
Any additional sums not exceeding $4,000,000 at the rate of 2.5 percent

All sums above $5,000,000 at the rate of 2 percent

These amounts come out of the value of the estate and in cases where multiple executors handle an estate, the split is commiserate on the amount of work performed by each individual.

Attorney costs for probate of a will

When going through probate, it is strongly suggested the executor seek help from an experienced and dedicated New York probate and estate lawyer. The fees associated with a probate attorney depend on size of the estate, work put in by the executor, and the complexity of the case.

What is a Qualified Personal Residence Trust?

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

When planning their estate, many individuals consider setting up some form of trust to avoid family squabbles over assets, particularly the home. To achieve the goal of a smooth transition of assets and maintaining family harmony, most folks choose to set up some form of trust to avoid probate and reduce the amount of time and money executors need to spend in court.

Although many may not realize the significant wealth they have accumulated over the course of their life, the reality can quickly set it when it comes time to pay estate or gift taxes when passing on a home to heirs. After decades of skyrocketing real estate prices, home that were once purchased for several thousand dollars may now be worth millions, depending on the condition of the home and location.

One way for highly wealthy people to pass on their home with as little tax liability to heirs as possible is the creation of a qualified personal residence trust. Just like any type of estate plan, there are benefits and drawbacks to consider and it is strongly advised individuals consult with an experienced estate planning attorney to draw up trusts and wills.

Using Portability to Get the Most Out of your Estate Tax Exemptions

Published on: September 5, 2017 | by Ettinger Law Firm

One of the most common estate planning goals for high net worth married couples is to reduce their estate’s tax liability by taking full advantage of state and federal estate tax exemptions. The 2012 Tax Relief, Unemployment Reauthorization, and Job Creation Act (TRA) gave couples much more leeway to plan for their state through the portability of a deceased spouse’s unused estate tax exemption.

In 2017, the estate and gift tax exemption will be $5.49 million dollars for an individual, and just under $11 million for married couples, thanks to the 2012 Act. While there are a number of ways to properly implement the portability of estate and gift tax exemptions, one of the more common ways is to create a family trust where the assets of the first spouse to pass away will be placed in under the individual’s own gift and estate exemptions.

Without portability, couples can end up leaving millions of dollars in assets subject to taxation because of improper planning. Two of the most common reasons couples fail to properly use take advantage of gift and estate tax exemptions are unbalanced asset ownership or an inefficient estate plan.

Know the Law: What is a Durable Power of Attorney?

Published on: September 2, 2017 | by Ettinger Law Firm

An important consideration in anyone’s estate plan is to consider appointing a trusted individual to make important health and financial decisions in any case where the testator may be incapacitated and unable to act in their best interest. One way to do this is to create a durable power of attorney in a living will which names another person as an agent or an “attorney in fact” to decide whether or not to continue with life support treatment and other important medical decisions.

In New York, Pub. Health Law §2980, et seq. Health Care Agent and Proxies details the powers of the attorney in fact, the legal requirements to create such an arrangement, when the agreement may be revoked, and the state to state applicability of the durable power of attorney. Specifically, the law allows the attorney in fact to make “Any decision to consent or refuse consent of any treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition.”

Health Law §2980 requires individuals to fill out Standard Form §2981 and name a competent adult to the position. Additionally, the form must be signed in front of two witnesses and indicate the principal wishes his or her agent be able to make healthcare decisions and that this authority begin when an attending physician decides to a medical degree of certainty the principle cannot act on behalf of himself or herself.

Creating a Succession Plan for Your Business

Published on: August 30, 2017 | by Ettinger Law Firm

If you are in sole proprietorship of your business, you have a number of options to hand over your company when it comes time to retirement or pass away unexpectedly. If you do not have partners in your business, you are generally within your right to hand over the entire company to any person you may see fit to do and avoid estate taxes up to a point if you plan ahead of time.

One option to hand over a business to another and avoid some state and federal gift taxes is to gradually gift over percentages to the benefactor overtime before you pass away. If you do die before the entire transfer is complete, the heir may be on the hook for exorbitant estate/gift taxes. Currently, the estate tax exemption is $5.49 million over the life of one individual and up to $11.98 million for couples.

If you do have partners and you would like to retire or sell you your stake in the company, you may consider writing a buy-sell agreement into the language of your partnership agreement. These buy-sell agreements may be mandatory with the full understanding you intend to sell of your stake in the company to another or they may allow only the right of first refusal for the partner to buy the stake or pass and allow an other interested party to buy in.

Treasury Department Announces End to myRA Retirement Savings Accounts

Published on: August 26, 2017 | by Ettinger Law Firm

Saving for retirement just became more difficult for thousands of Americans relying on the Treasury Department’s myRa retirement savings account as the agency recently announced it would wind down the program. In a statement released on the Treasury Department’s website, the agency said the $70 million in costs since 2014 became too costly to the taxpayer and could no longer justify the program’s expense.

“The myRA program was created to help low to middle income earners start saving for retirement. Unfortunately, there has been very little demand for the program, and the cost to taxpayers cannot be justified by the assets in the program. Fortunately, ample private sector solutions exist, which resulted in less appeal for myRA. We will be phasing out the myRA program over the coming months. We will be communicating frequently with participants to help facilitate a smooth transition to other investment opportunities,” said Jovita Carranza, U.S. Treasurer.

The myRA program functioned as a Roth IRA account with no fees, minimum balance, and non-deductable to help middle and lower income Americans without access to employer sponsored retirement plans like a 401(k) plan and save for their retirement. Participants under 50-years old could contribute up to $5,000 to their account every year while those 50 years and older could contribute up to $6,500.

How are Taxes Calculated for Inherited Property?

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

When people learn they are going to be the beneficiaries of someone’s estate and will inherit property, many of them often wonder whether it will actually cost them money to do so. We often hear about raising or lowering the federal and state estate tax, sometimes referred to as “the death tax” and all this talk can be quite confusing. While every situation is different and the tax code itself is quite complicated, there are a few basic principles beneficiaries should be able to rely on.

To start, New York is one of only a handful of states with a state inheritance tax but there are exceptions to the rule and that amount has increased substantially over the past few years. As of April 2017, the exemption on inheritance tax in New York is $5.25 million, meaning beneficiaries will only be taxed for assets worth more than this amount. The tax rate for inherited assets above $5.25 million is five to 16 percent, much lower than the federal inheritance tax rate of 40 percent.

Unlike other states with inheritance taxes, New York has a “tax cliff,” meaning if your inherited assets are greater than the tax exemption then the entire value of the asset is taxed. By contrast, other states with inheritance taxes only tax at the value above the exemption threshold. New York is one of the only states to institute its inheritance tax rate this way and although this may seem steep, the current tax rates are much more fair than they used to be.

What are the Rules for Appointing an Executor in New York?

Published on: August 11, 2017 | by Ettinger Law Firm

Estate planning is something everyone, regardless of age or wealth, should take care of in order disperse assets and have final instructions carried out. Whether that plan be a last will and testament or a trust, folks need to create a plan early on in life and update their estate planning as life events like marriage, buying a home, or acquiring wealth. One of the most common ways for folks to settle their affairs is to create a last will and testament and name an executor to oversee the will in probate.

Often times, executors to estates are close family or friends to the testator, the person crafting the will. The executor will bring the will through probate court, taking stock of all the deceased’s assets and debts and ensuring creditors are paid and the assets are dispersed to the proper beneficiaries, which may also include the executor.

However, New York does place certain very limited restrictions on who may serve as an executor to an estate. Under N.Y. Surr. Ct. Proc. Act § § 103, 707, the basic rules for serving as an executor of an estate are:

Planning Ahead with your Estate to Avoid Medicaid Estate Recovery

Published on: August 3, 2017 | by Ettinger Law Firm

Medicaid provides valuable health care coverage to millions of low-income adults, children, women carrying children, persons with disabilities, and the elderly. The program is jointly funded by states and the federal government and is administered by the states. For many seniors, Medicaid provides them with the life-saving nursing home and in-home nursing care they need to live comfortable, dignified lives.

However, not all services provided by Medicaid are completely free and recipients sometimes need to pay back the state and federal governments for certain types of services rendered, particularly nursing home or home care aid. In fact, the state may go so far as to try and recover assets from a deceased’s estate if he or she received nursing home or home health care after the age of 55.

Under 18 NYCRR Section 360 -7.11, the state of New York can attempt to recover up to 10-years worth of Medicaid services provided before the deceased’s passing if the individual received nursing home care, had been deemed a “permanently institutionalized individual, and owned a home. However, it is important to know if the deceased left behind a surviving spouse, child under 21-years old, or an adult child deemed permanently blind or disabled then Medicaid cannot place a lien on the home.