Elder Law

Property and How to Plan For It With Your Estate Attorney

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

How property and assets are distributed when you pass can be a sensitive topic that many people do not like to address, in fact, more than half of Americans die without a will every year. This failure to plan for the distribution of assets and property can leave many interested parties at odds and may not reflect what your last wishes were for your legacy. Depending on what you are leaving behind, there are some considerations that must be made regarding your assets.

Depending upon the state you reside in, your property may pass subject to probate or it may pass outside due to pre-documented rights of survivorship or trust language. If you live in a community property state, which means that all property acquired by you or your spouse during the marriage, regardless of who bought it is property of the marriage, then your property will pass subject to probate court. However, passing through probate may be avoided if you have left rights of survivorship language in your will or property ownership documentation. Property is then subject to the estate tax, which may not be the main concern of dissolution, depending on the assets involved.

Additionally, a trust can be set up that will either avoid probate or will continue to be includable in your estate. If you seek to avoid probate, you can form what is called an irrevocable trust, which allows you to put your assets and property in a trust, to be held and owned by the trustee, who works to administer the trust under the governing trust and also make decisions in the best interest of the grantor and any potential beneficiaries. However, if you wish to form a trust but still seek to maintain control of your assets and property by amending or revoking the trust during your lifetime, you can form a revocable trust.

Dental Care and Old Age

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

As we continue to age, there are a number of ailments that develop and health issues that we are forced to address and adapt to. While we anticipate problems such as achy joints and the occasional stiff legs, we do often forget about the continued upkeep associated with dental hygiene. Dental checkups are easy to forget about and avoid, especially when you do not feel like anything is wrong, however, as soon as something starts to ache, the check up can turn into a very expensive visit. Many elderly individuals avoid going to the dentist due to the associated fear of costs and lack of coverage.

Medicare does not provide dental care coverage for their insured beneficiaries, which leads many to either go without coverage or to retain an independent plan that could cost them more than they can afford in their budget. Millions of elderly Americans rely on Social Security and Medicaid or Medicare to support them in their old age, however, these programs continue to shrink in size and will not be able to provide for all of those soon to be retirees. Medicare does provide dental care for some chronic medical conditions such as reconstruction following an accidental injury, or extraction due to radiation exposure for neoplastic diseases of the jaw, a very specific list. Even with those exceptions, the reimbursement rate is so low that some doctors will not accept Medicare coverage in their offices because they know how difficult it becomes to get paid.
The National Center for Health Statistics has found that 20% of Americans over 65 years old have cavities that are currently going untreated, with the numbers steadily increasing with old age. With teeth becoming more brittle and procedures performed decades earlier needing maintenance, many elders find themselves in the Emergency Room due to the pain. There are a number of nonprofits however across the nation that offer free or discounted dental cleanings for elderly patients that do not have dental coverage and cannot afford it. Additionally, many universities offer discounted cleanings as well as procedures by having elderly patients be seen by their class of graduating dentists. They will offer up front costs of services as well as payment plans in an effort to avoid having the individual rack up debt.

Meals on Wheels Funding Gets Threatened

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

Meals on Wheels is a government program that started in the 1950s that has assisted elderly citizens by delivering food to them when in need, either by providing the meals in the elderly individual’s home or in a community senior center. They not only provide the meal but also provide safety checks and visit with the senior, critical actions that have been shown to help elders live longer. There are over 5,000 independent organizations across America that help administer the program, and it has for decades, had much success. In order to receive funding local communities as well as the Older Americans Act help to keep the program afloat.

As the new budget is proposed, many programs are in jeopardy of being cut. One program that is may see a threat to funding is Meals on Wheels, due to the program not providing results. However, the nature of the program is not a results oriented initiative. The program services 2.4 million Americans, a number that will undoubtedly grow in the coming decades due to the large number of baby boomers beginning the retirement age. These cuts are the result of discretionary spending decisions related to the Community Development Block Grant that allocates a portion of the block grant money to elderly through Meals on Wheels. There have been numerous studies conducted that have showed the effectiveness of Meals on Wheels decreasing loneliness scores and also decreasing reliance on traditional care, while allowing elderly individuals to remain in their homes longer.

However, there are conflicting opinions about how much influence this will actually have on the institution. From financial statements released last year, only about 3% of the total funding was made from the block grant. On a local level, there is much more monetary influence, with federal funds accounting for 30% of the expenses relating to the home delivered meals. While the program’s costs and returns are currently being debated, it is evident that although it may not be the most lucrative on it’s face, Meals on Wheels can provide a number of benefits. One study even found that if there was a 1% increase in elderly individuals receiving Meals on Wheels, states would saved over $109 million, due to reductions in need for nursing home care.

Different Ways to Title Property in Estate Planning

Published on: March 31, 2017 | by Ettinger Law Firm

When titling property pertaining to estate planning, there are many considerations to make in order to properly distribute assets and property to your loved ones upon your death. Depending upon your estate planning measures, you make seek to title property in order to pass automatically to a lineal descendant, in order to avoid probate, or in order to allow your executor to sell, gift, or transfer your interest in property.

Ownership

Sole ownership, the title position in which you are the sole owner of the property, is the most common form of ownership for single individuals. They have full rights to property while alive and also to pass at death. This type of title will pass subject to probate, by the decedent’s will or if they fail to execute a will, by intestate, also known as the process by which a court will determine your estate execution.

Different Ways to Title Property in Estate Planning

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

When titling property pertaining to estate planning, there are many considerations to make in order to properly distribute assets and property to your loved ones upon your death. Depending upon your estate planning measures, you make seek to title property in order to pass automatically to a lineal descendant, in order to avoid probate, or in order to allow your executor to sell, gift, or transfer your interest in property.

Ownership

Sole ownership, the title position in which you are the sole owner of the property, is the most common form of ownership for single individuals. They have full rights to property while alive and also to pass at death. This type of title will pass subject to probate, by the decedent’s will or if they fail to execute a will, by intestate, also known as the process by which a court will determine your estate execution.

Overzealous Powers of Attorney and How to Handle Them

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

When determining how you want your estate and assets administered upon your death, it is also important to consider how you want decisions made in the event that you cannot make them for yourself. Naming a power of attorney has a number of benefits that will avoid any drawn out court proceedings to name an agent in the event of your incapacitation. Power of attorney documents name an individual, also known as an agent, to perform specific tasks when you cannot. These powers can vary, as there is medical/health care power of attorney and also property or financial power of attorney powers.

Medical power of attorney gives an individual the ability to make your health care decisions, such as where you should receive care, if you should receive a specific treatment in the event your wishes are not listed, as well as dealing with your insurance and medical premiums. Financial powers of attorney allow an individual, upon a specific event, to handle a variety of your financial matters on your behalf. While many people will name someone as power of attorney in the event of incapacitation, some will name a power of attorney to take effect immediately, thus, delegating decision making power.

These situations are predisposed to undue influence, something the court is very suspect of and will closely monitor in the event they believe an individual is abusing their power of attorney role over an elderly individual. In the event that you are competent and have named someone as a power of attorney, but due to a number of circumstances, including the end to a relationship or a possibility of undue influence, you wish to revoke the power of attorney, you can do so by delivering a notice to the power of attorney, your estate attorney, as well as other interested parties notified of the document.

Understanding Elder Law Estate Planning – Trusts and Tax Reporting

Published on: March 18, 2017 | by Ettinger Law Firm

If you are the beneficiary of a trust, there are a number of considerations you should be making when filing your taxes. When filing taxes each year, you should determine how much of your trust distributions made throughout the year will be taxable. In the event that a trust retains income after the calendar year has ended, they will be subject to taxation on that leftover income, thus, it is important to communicate to your trustee, whether that is an individual or a corporate entity, your tax status and what you would like to maintain.

A trust consists of both income and principal. Principal is the corpus of the trust, being any trust property owned by the grantor and now the trust, as well as stocks and investments that have funded the trust. Income is the monetary amount made off of the investments or other products attributed to principal. Based on what distributions were made from principal and what were made from income, the trust must file a K-1 and a 1041.

The 1041 is the tax document important to the trust and trustee because it provides the trust’s deductions from its taxable income distributions made to beneficiaries. The K-1 is given to the beneficiary and gives them a breakdown of the distribution and what their tax liability is to be reported by outlining what distributions were made from income and what came from principal.

The Basics – Guardianship and the Elderly

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

As we continue to age, it can be difficult to admit when you are no longer able to handle personal affairs and financial matters on your own. There are a number of alternatives available to those seeking to have their affairs managed by another party, depending upon the individual’s mental capacity to comply with assigning these rights. Those providing caregiver services to the individual, commonly a loved one, may seek retaining legal guardianship of the elderly individual, assigning durable power of attorney and health care power of attorney to specific individuals, or establishing a trust.

Guardianship

Guardianship is a legal status given by the court to create a relationship between someone who is incapacitated or unable to care for themselves and a person determined to be suitable to administer and manage the incapacitated person’s affairs. In order to get a guardianship order, a person must file a petition with the court to review the case at hand. The court assesses the situation, the petitioner, as well as the elderly person to determine what will be the least restrictive method of guardianship. The appointment may include only managing financial affairs, but may also assign responsibility for day to day decision making including support, maintenance, and personal care.

Early Onset Dementia and the Importance of Estate Planning

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

Dementia and Alzheimer’s Disease affects more than five million Americans today. While a large majority of those affected are over the age of 65, it is not just a disease for the elderly. Symptoms of Dementia and Alzheimer’s Disease can occur in individuals as young as 30 years old, and currently affects an estimated 200,000 people in America. The diagnosis can often be missed or misdiagnosed as another condition or an association with the changes both men and women go through during their 40s and 50s, however, a comprehensive medical examination is required in order to properly diagnose those with early onset dementia. While the cause of the disease is not yet known, it is important to look to your family history as a way to determine if you or your loved one should be monitoring specific behaviors and changes in personality.

The thought of losing your memories, ability to perform basic tasks, as well as ability to think clearly, remember the time, date, or place, is a very scary feeling for anyone. As these functions start to go, it is important that the loved person, either elderly or young, has in place a comprehensive medical and estate plan, when the day comes that he or she is no longer able to make decisions for themselves. The unfortunate reality of this disease is that it is not a question or if, but of when they will no longer be able to make their own decisions based on a lack of capacity.

First, the individual in question must have their legal capacity assessed to determine if they are able to understand and appreciate the consequences of their actions in signing documents that give specific power to named individuals. In doing so, you should also consult a medical professional if you have doubt as to their ability to understand and make decisions. Also, if the individual has previously executed any wills, trust, or power of attorney documents, those should be revised as necessary to accommodate their current condition while still respecting their wishes.

New York Elder Law Estate Planning: Unitrusts

Published on: March 6, 2017 | by Ettinger Law Firm

There are a variety of different types of trusts that an individual can use to their benefit while they are alive or in order to preserve their wealth for their family after they pass. Depending on it’s purpose, the grantor of a trust will make either a irrevocable or revocable trust. Irrevocable trusts cannot be modified without permission of the beneficiary since the grantor is giving up rights to their assets to the trust, versus a revocable trust where the grantor can modify the trust terms as they desire during their lifetime and upon their death, the assets transfer to the trust.

One unique type of trust that a grantor can establish for their benefit and for the benefit of a charity is a charitable remainder trust unitrust. Charitable remainder unitrusts are a type of irrevocable trust with specific characteristics setting it aside from other trusts. This type of trust distributes a certain percentage of the value of the assets in the trust to a beneficiary that is not a charity, usually a grantor of the trust or whomever the grantor has named to receive the named distribution. The grantor sets a specific timeline for the distributions to the beneficiary, and upon the termination of that timeline, the remaining assets are distributed out to the charity named.

In order to determine how much the non-charitable beneficiary will receive, the trustee must use a formula that requires minimum distributions from the trust annually. The trustee will first determine the fair market value of the trust at the end of the given year by obtaining a valuation of the assets in the trust and then will distribute out the percentage of that asset value named in the document.