New York Estate Planning & Elder Law Blog

When Does a Trust Make Sense

Published on: February 17, 2023 | by Ettinger Law Firm

By now most people know that trusts avoid probate which is required with a will — if there are “probatable” assets, in other words those in your name alone. While many assets can be set up to avoid probate by putting joint owners on or by naming beneficiaries, titles to real estate in New York may not have beneficiaries and there are tax and liability reasons for not naming joint owners on real estate. As a result, real property generally goes through probate.

Other reasons to use trusts, besides avoiding probate for the home, are as follows:

Out-of-State Property. New York residents who own property in another state face two probates, one in New York and another in the other state. However, you may transfer both properties into your New York trust and avoid the “multiple probate problem”.

Book Review: Let’s Talk About Death, by Michael Hebb

Published on: February 9, 2023 | by Ettinger Law Firm

In his invitation and guide to life’s most important conversation, as he puts it, author Michael Hebb seeks to address the fact that “the way we die in the modern age is broken.” Almost unique to American culture, the denial of death has ripple effects in depleting our skills to discuss death and to process the loss of a loved one.

Perhaps this is why (1) although 80% of Americans say they want to die at home, only 20% do, and (2) the leading cause of bankruptcy in the United States is the cost of end-of-life care. Most people do not want extreme measures that only prolong suffering leading to death. However, so few of us have talked to our families about our wishes nor have we been asked, leading to the medicalization of end-of-life.

Given the right framework, these conversations can be liberating and even transforming — bringing people together and reminding us what really matters. While death is often tragic and terrible, there are opportunities to learn and grow — by making us more aware of life’s precious gift, making us kinder and bringing us closer to one another.

Better Sleep for Seniors

Published on: January 26, 2023 | by Ettinger Law Firm

While sleep is essential for mental and physical health, aging presents some sleep challenges. About half of all seniors report a sleep problem such as taking longer to fall asleep, shorter sleep, waking up often and napping more and longer. As we age, our body clock deteriorates and melatonin (a sleep inducing chemical) levels decline. To increase the amount and quality of sleep, the three main factors are (1) routine, (2) sleeping environment, and (3) diet and exercise.

Routine: A consistent evening routine works best for sleeping. Going to bed at the same time and “winding down” makes a considerable difference. Avoid uses of electronic devices such as smartphones and television as they emit “blue light” which inhibits melatonin production and can upset body rhythms. Blue light blocking lenses may avoid this problem.

Sleeping Environment: Cooling down the bedroom can lead to better sleep. If the thermostat is out of your control, a fan will help. Light should be just enough to allow you not to trip and fall should you need to get out of bed. Darkness options are blackout blinds or curtains and covering any electronics that emit light. An eye mask can work wonders too. Outside noises or partners who snore can disturb sleep. Consider “white noise” machines or spa-like recordings to help you sleep. Like the eye mask for light, consider ear plugs for noise. While a firm, comfortable mattress and quality pillows with breathable fabrics are essential, there are other high-tech options that may assist, such as mattress and pillows that adjust their temperature as yours changes. Many people report a weighted blanket works wonders.

Strength Training for Seniors

Published on: January 12, 2023 | by Ettinger Law Firm

About a year ago, your writer found that he was having trouble doing the yard work and carrying the trash to the curb. I was getting weaker with age and realized that this trend was only going to go in one direction. So I decided to reverse the decline with strength training. Putting in just three hours a week, I am now stronger than I was thirty years ago.

The British Journal of Sports Medicine reports that just thirty to sixty minutes a week of strength or “resistance” training leads to a ten to twenty percent decrease in heart disease, cancer and mortality. It also increases cognitive function and decreases anxiety and depression. Better yet, you can carry in the groceries or climb the stairs without getting exhausted!

Strength training doesn’t mean you have to go to the gym and start lifting heavy weights. Just doing push-ups, planks, squats, walking up stairs, etc. are all forms of resistance training. You don’t even have to change your clothing, so long as you have enough room to move.

Saving Half on the Nursing Home Doorstep

Published on: December 12, 2022 | by Ettinger Law Firm

What do you do when a client comes in to see you and says that his mother is going into a nursing home and she has $300,000 in assets. In fact, mom scrimped and saved all of her life to have this nest egg and now she desperately wants to see her children get an inheritance.

Although you may protect all of your assets by planning five years ahead of time with a Medicaid Asset Protection Trust, all is not lost if nothing has been done and the client finds herself on the nursing home doorstep.

The advanced elder law technique, used to protect assets at the last minute, is called the “gift and loan” strategy. Here’s how it works. Let’s assume, for the purposes of our example, that the nursing home costs $15,000 a month. When mom goes into the nursing home, we gift one-half of the nest egg, in this case one-half of $300,000, or $150,000, to her children. Then we lend the other $150,000 to the children and they execute a promissory note agreeing to repay the $150,000 in ten monthly payments of $15,000 per month, together with a modest amount of interest. Now we apply for Medicaid benefits. Medicaid will impose a penalty period (i.e., they will refuse to pay) for 10 months on the grounds that the gift of $150,000 could have been used to pay for mom’s care for 10 months. Medicaid ignores the loan since it was not a gift. It is going to be paid back, with interest, according to the terms of the promissory note. What happens is that the ten loan repayment installments will be used to pay for mom’s nursing home care during the penalty period. Just when the loan repayments are finished, the penalty period expires and Medicaid begins to pick up the tab. Lo and behold, the children get to keep the $150,000 gift and mom has saved some of the inheritance for her children.

Estate Planning for the Estranged Child

Published on: December 1, 2022 | by Ettinger Law Firm

All too often a client comes in with a sad tale about an estranged child. Naturally, they are at a loss as to what to do about the situation when it comes to leaving that child an inheritance.

Years ago, the famous advice columnist Ann Landers wrote that her all time most requested column for reprint was on this very subject. Ann wrote that an inheritance should be considered a gift and that if the gift is not deserved one should not be expected. While that may have been good advice at the time and perhaps still is in most cases, like many things it is more complicated today.

In practice, we find that many of these once loving sons and daughters have married individuals with borderline or narcissistic personality disorders. Their spouses are manipulative and controlling. They seek to separate the loving son or daughter from their family so as to better control their spouse. The estranged child knows from experience that going against the wishes of their narcissistic spouse is like throwing gasoline on a fire — so they go along to get along.

Keeping The Lights On

Published on: November 17, 2022 | by Ettinger Law Firm

Adapted from author Doug Armey, the following are keys to keeping your brain “lit” as you age.

Flow. A sedentary life causes brain deterioration. Blood flow to the brain keeps oxygen in your brain cells which gives them life. Keep moving, walking and get some exercise.
Energize. Junk food clogs your arteries and lowers energy, causing a sedentary lifestyle. Healthy food gives energy to your body and brain. Refuel and brighten the lights.

Powers of Attorney Are for Everyone

Published on: November 11, 2022 | by Ettinger Law Firm

What happens if you have an accident or an illness whereby you are unable to handle your legal and financial affairs? Many people incorrectly believe their spouse is legally able to handle their affairs. Similarly, a parent has no legal authority to handle the affairs of a child, once the child attains the age of majority – eighteen years.

Without a power of attorney, you would have to apply to a court to be named a legal guardian. These proceedings are expensive, time-consuming and fraught with peril. The judge has no obligation to name the spouse or parent as legal guardian and may appoint a stranger. For example, the judge may feel that the spouse or parent has a conflict in that they are the beneficiary of the incapacitated person’s assets, or the judge may decide that someone else has more knowledge and experience in handling such matters.

Who should you choose as your “agent”? In our experience, the vast majority of powers of attorney name the spouse first and one or more of the children second. While on its face this seems reasonable, experience has shown it may not be a good idea. We often need to use the power of attorney when the client is quite elderly and infirm. Often, so is the spouse at that time. Son or daughter wants to step in and help out with bill paying, etc. only to find they are unable to use the power of attorney for dad unless they can prove that mom can’t.

The Secure Act and Your IRA

Published on: November 2, 2022 | by Ettinger Law Firm

The Secure Act governs distributions from IRA’s and other retirement plans. After the death of the account holder, most named beneficiaries are required to take the funds out over ten years.

While the IRS has not finalized the regulations, the safest approach is to take minimum distributions for the first nine years, based on the life expectancy of the beneficiary. More may be taken, and taxes will be based on that amount. The way the minimum distribution works is as follows. Let’s say the beneficiary has a life expectancy of forty years when the account holder dies. In the year following the account holder’s death they must take one-fortieth, the following year one-thirty-ninth, and so on until year ten when they are required to take the retirement account balance in full.

There are a few exceptions to the ten year rule. Spouses may roll the inherited IRA into an IRA of their own and continue it for their own lifetime — generally waiting until they are 72 to start taking required minimum distributions (RMD’s) unless they need the funds earlier.

Book Review: John Leland’s “Happiness is a Choice You Make”

Published on: October 21, 2022 | by Ettinger Law Firm

In his book, subtitled “Lessons From a Year Among the Oldest Old”, journalist John Leland takes us on a journey into uncharted territory. Mr. Leland spent a year with six elderly New Yorkers, exploring their lives.

He divides the book into the first six chapters chronicling the years spent with each of the six — John, 97, living in the same Manhattan apartment for forty-six years, the last six of them alone after the death of his partner; Fred, 87, a World War II vet and retired civil servant living in a three-story walk up; Helen, 90, living in The Hebrew Home in the Bronx, dating Howie, living down the hall; Ping, 89, providing an Asian perspective, living in a rent-controlled apartment with a Medicaid paid home attendant for seven hours a day; Ruth, a feisty 90, in assisted living in Sheepshead Bay, Brooklyn and, finally, Jonas, 92, an active filmmaker and writer.

Along with the author, we live the lives of these six people from getting up in the morning to going to bed at night. “How did they get through the day, and what were their hopes for the morrow? How did they manage their medications, their children, and their changing bodies…” Further, says Mr. Leland “All had lost something: mobility, vision, spouses, children, peers, memory but few had lost everything.” What the author found was that the “oldest old” are not a different species, as so many people see them, but rather much the same as you and me — getting up each morning with wants and needs and doing the best they can with what they have. Nevertheless, older people report a greater sense of well-being and fewer negative emotions than younger people. “Experience helps older people moderate their expectations and makes them more resilient when things don’t go as hoped.” We learn the many ways his six seniors chose to be happy.