New York Estate Planning & Elder Law Blog

Should Medicaid Planning Be Included in Your Estate Plan?

Published on: October 30, 2019 | by Ettinger Law Firm

State plans for medical assistance under federal Medicaid law must comply with certain requirements located in Title 42 U.S.C. § 1396a.4, but do not always do so. In 2018, the United States District Court for the District of Alaska in the case of Disability Law Center of Alaska v. Davidson denied a motion for summary judgment on three claims alleging that Davidson who in her position as the commissioner of the Alaska Department of Health and Social Services had violated federal Medicaid law.

The violations of which the Center was accused were: failure to provide adequate notice on how to apply for and access applied behavioral therapy, not reimbursing for ABA under the program, and not providing ABA services under the program with reasonable promptness. In arriving at its decision, the court noted that the Disability Law Center had the burden under federal law of establishing that Davidson had deprived them of the following rights: the right to notice of availability of ABA services, the right to be reimbursed for ABA therapy, and the right to have ABA therapy provided.

The court’s subsequent decision subsequently supported the position that any state that has elected to participate in federal Medicaid programs must be prepared to provide services identified under the federal statute as mandatory. This case underscores the right that many individuals in the United States have to Medicaid benefits.

A Quick Guide to New York MOLST Forms

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

One of the common responses that many people have as they learn about estate planning is that there are a number of estate planning documents. In addition to things like wills, living wills, advance directives and powers of attorney, there also also a number of other important documents.

In New York there are Medical Orders for Life-Sustaining Treatment (MOLST) forms. This article briefly reviews what MOLST forms do and situations where you might need one of these documents.

The Role of MOLST Forms

Mistakes to Avoid When Establishing Trusts, Part 1

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

We’ve been examining adding a revocable (a/k/a living or inter vivos) trust or irrevocable trust to your estate plan. Trust instruments are an important part of your estate plan, particularly if you have a spouse and young children you wish to provide for upon your death. When mistakes are made, in establishing or setting-up a trust, the errors are borne by your survivors.

When problems arise in trusts they tend to involve issues with trust funding, policy titling, and beneficiary designations. When neglected these issues have their way of creeping into the lives of your loved one and will require significant amounts of money and time being spent that could have otherwise been avoided. What follows is a primer on the top 4 scenarios your survivors will need to get through to correct any problems associated with trust funding, policy titling, and beneficiary designation.

No. 1 – Avoiding probate

Advice from Sveen v. Melin on the Importance of Beneficiary Designations

Published on: October 25, 2019 | by Ettinger Law Firm

In 1997, Ashley Sveen purchased a life insurance policy. Later that year, Ashley married Kaye Melin and named Melin as primary beneficiary on his life insurance policy. Sveen also named his two adult children as contingent beneficiaries.

Several years later, Minnesota amended its revocation on divorce. Sveen and Melin divorced in 2007, but Sveen never changed the beneficiary designation on his life insurance policy. After Sveen passed away in 2001, the insurance company that held the policy requested a court make a judgment on whether Melin or Sveen’s children should receive benefits from the policy.

The United States District Court of Minnesota then granted summary judgment for the Sveen children and awarded them life insurance proceeds. The United States Court of Appeals for the Eighth Circuit reversed and remanded this decision. Subsequently, the court found that the policyholder’s ability to opt out of the law by redesignating his former wife as the beneficiary of the policy did not resolve the issue.

Lessons from Groucho Marx: Reducing the Risk of Elder Abuse

Published on: October 23, 2019 | by Ettinger Law Firm

By the time that the legendary screen actor and comedian Groucho Marx became a senior citizen, he had a difficult time making a number of decisions regarding his daily life.

During this time, Marx’s companion, Erin Fleming, was accused of elder abuse and experienced a deterioration in his relationship with Marx’s children. This was made complex by Fleming’s decision to push Marx to perform. Later, after Marx became incapacitated, Fleming was appointed as guardian and temporary conservator of Marx’s valuable estate. Marx’s grandson was later named permanent conservator.

Following Marx’s death, the fight for assets from the late legend’s estate continued on for years. A judge later resolved the debate in favor of Groucho’s children and ordered Fleming to repay a large amount that she had stolen from Marx’s bank accounts.

Estate Planning Challenges Faced by Unmarried Couples

Published on: October 21, 2019 | by Ettinger Law Firm

Statistics show there are an increasing number of older individuals who are divorcing later on in life. There is also an increasing number of individuals who are discovering that living together as an unmarried couple has its advantages.

According to the United States Census Bureau, the number of unmarried individuals who are older than 50 even increased by 75% between 2007 and 2016.

Unfortunately, however, living together as an unmarried couple creates a number of unique estate planning challenges. This article reviews some of these hurdles.

The Elements of a Successful Inheritance Trust

Published on: October 18, 2019 | by Ettinger Law Firm

Creating a successful inheritance trust is not easy. In some situations even when a family believes that they have created a well-written inheritance trust, they have failed to address a number of complexities including those involving incompetency. This article reviews some of the elements that should be included in an inheritance trust.

# 1 – Appropriate Beneficiary Designations

Appropriate beneficiary designations are a vital part of trusts. Inheritance trusts are created so assets can be passed to a designated beneficiary during that individual’s life and following the individual’s death to any of the person’s children. Additionally, good inheritance trusts are written with the understanding that a situation might arise where a beneficiary is temporarily not able to serve as a trustee.

How to Neutralize Challenges to Your Will

Published on: October 18, 2019 | by Ettinger Law Firm

There are a range of situations that could prompt a parent to disinherit a child. For example, some children completely ignore their parents. An extreme example is when an adult child tries to commit his parent to a mental institution. A more common example are situations where an adult child physically or financially abuses a parent. But what if you don’t have children? Some nieces and nephews of the will maker are just as awful as some of the wayward children described above. How do you disinherit any close family members and ensure that a will contest will be resolved as you wished?

Hire legal counsel to draft your will or trust document. If you want to make sure that a family member will be disinherited as you wish in your will, especially if the disinherited person is your child, hire an attorney to draft your will or trust document. Do not rely on a handwritten or internet will. If they were difficult to manage while you were alive, they will be doubly difficult to control once you are dead. An errant child or nephew may try to challenge your will, even if they lose, to force the other children or family members to pay them off. Hate has a funny way of applying both ways.
Provide details and instructions as to why you are disinheriting your child or family member to your executor. An executor of a will is responsible for submitting the will to probate and will be required to represent your wishes and defend you in court if your will is challenged. Leaving a written explanation as to why you were disinheriting your child or other family member will both explain and corroborate your decision. Demonstrating that your decision to disinherit a family member was a thoughtful process and not simply a rash act will ensure that your actual wishes are followed if challenged. Especially if the family member you are seeking to disinherit is combative with your other children or family members. Remove all doubt that another child or family member pressured you to disinherit the other family member.

Estate Planning and Cryptocurrency

Published on: October 16, 2019 | by Ettinger Law Firm

The introduction of cryptocurrency has created a number of new issues, which includes how these digital assets should be addressed in a person’s estate plan. Because the Internal Revenue Service has classified cryptocurrency as property capable of being taxes, it is possible to dictate how ownership of cryptocurrency should be passed in a person’s estate plan. In many cases, however, it can prove difficult to transfer ownership of cryptocurrency without creating a potential security risk.

The Estate Planning Challenges Presented by Cryptocurrency

A person’s ownership of cryptocurrency is represented in that individual’s virtual “wallet”, which also stores the owners’ credentials and interacts with blockchains so users can both send and receive cryptocurrency. Consequently, the person who knows the access credentials to a virtual wallet has access to any cryptocurrency that is contained in the wallet.

4 Pieces of Advice on Selecting an Executor

Published on: October 15, 2019 | by Ettinger Law Firm

After the devastation of accepting the loss of a loved one subsides, it can be challenging to determine how to best process. Unless you have navigated this process before, performing the various tasks asked of an executor can seem overwhelming.

As a result, this article reviews some pieces of advice that will make the selection of an executor easier.

# 1 – Understand the Role of an Executor