New York Estate Planning & Elder Law Blog

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.

Commonly Asked Questions about 529 College Plans

Published on: February 7, 2019 | by Ettinger Law Firm

A large number of people in New York are curious about 529 college plans as the result of campaigns run by the state. Not only do 529 college plans provide tax advantages, they are also particularly helpful when estate planning is involved. Despite the benefit of 529 college plans, there are still a number of questions that people have about these plans. This article focuses on addressing some of the most commonly raised of these issues.

What Is a 529 Plan?

These accounts are named after Section 529 of the Internal Revenue Code, which allows individuals to reduce their taxable estate while preserving funds for higher education. Funds that are placed in 529 accounts are usually invested in mutual funds and the earnings from these accounts are most often tax-free.

Death and Your Digital Identity

Published on: February 6, 2019 | by Ettinger Law Firm

What happens to online accounts when you die? Digital identity is defined broadly and may include a person’s email accounts, online financial accounts, cloud accounts, digital music accounts, blogs, social networking identities, and digital files. Digital files are not limited to data files but also include photos, audio, and video files.

Your digital identity is oftentimes in the hands of others. While you feed information about yourself to others on social media sites like Facebook and Instagram, the mobile apps and online platforms own the information, pictures, audio, and video files with you and can continue to maintain your profiles and use your digital files, even if you die.

Many digital files cannot be gifted to family members or other persons because only the deceased person has the unlimited right to access and use these items because they own a license permitting them to do so. On their death however, the license is terminated. For example, in the past your father could gift you his physical record collection upon his death. The albums are transferrable, and the owner is the person who physically possesses the items. If your father however converted those physical albums into digital files and threw out the albums when he was done, he cannot gift the digital files to anyone because he does not own the digital right to transfer the audio files, even if the digital collection is a mirror image of his physical or hard album collection.

The Basics: Alternatives to Litigation Over an Estate

Published on: February 2, 2019 | by Ettinger Law Firm

Although passing an estate through probate can be an unnecessarily long and expensive process, it is usually an administrative task through which heirs receive their inheritance as the deceased saw fit to award. However, family dynamics can complicate the expediency at which executors are able to pass some estates through probate, leaving the courts, rather than the deceased in his or her last will and testament, to ultimately decide which heirs or other interested parties receive certain portions of the estate.

Instead of using the courts to settle these types of disputes, families should consider mediation as an alternative to expensive and time consuming litigation in front of judges with already heavy caseloads. Mediation is a type of dispute resolution where both sides meet with an independent party to help negotiate a settlement to the matter, out of court and without the need for extended litigation and costly legal fees.

Often times, disputes over who gets what during the probate process are the manifestation of long standing animosity between family members or individuals close to the deceased. While mediation has no authoritative decision making over who gets what, it can be beneficial because it allows both sides to keep control over their position, is less confrontational than a courtroom setting, and can preserve familial relationships by resulting in wins for both sides, rather than victory for one party and a defeat for the other.

Aging in Place Through Continuing Care Retirement Communities

Published on: February 1, 2019 | by Ettinger Law Firm

Entering into a nursing home or other residential skilled care facility can be hard enough on a beloved older family member without having to worry about having to leave that facility and moved into another one. Unfortunately, this is a reality all too many seniors face these days as nursing homes do not always make guarantees about being able to offer the type of care the individual needs to live a comfortable, dignified life.

Fortunately, Continuing Care Retirement Communities (CCRC) are able to guarantee residents a lifelong place to live without having to worry about transfering to a new and unfamiliar environment due to factors outside of his or her control. CCRCs offer the entire residential continuum, from independent housing to assisted living to round-the-clock nursing services, under one roof to allow residents to remain in place and create a stable living environment.

These types of arrangements allow residents to age in place and typically work by having the individual pay a an entry fee and an adjustable monthly rent in return for the guarantee of care for the rest of their life. CCRCs also maintain an assortment of on site medical and social services which allow residents to live in one part of the community while in good health and then transfer to another part of the community better equipped to handle lifestyle and health changes.

NY Elder Law Estate Planning: Alternatives to Nursing Home Care

Published on: January 29, 2019 | by Ettinger Law Firm

One of the biggest anxieties many Americans may face is entering into a nursing home or other skilled residential care facility at some point in their lives. Not only does residency in a nursing home mean less autonomy, but also potentially pay a tremendous financial price. Depending on the location, living in a nursing home can cost between $60,000 and $300,000 a year, with the median being $97,455 a year for a private room.

Not surprisingly, studies show that most older Americans prefer to remain in their own homes as long as possible and this results in a lot of care being delivered by skilled professionals and family members in the patient’s home. As a result, these caretakers often shoulder the greatest burdens for the patient such as transportation, meal prepping, and household chores, which can quickly monopolize someone’s time.

As a result, families need to be considerate to one individual who may be spending more of his or her time helping to take care of the elder than others and whether his person is properly compensated for all the hard work that goes into that. Furthermore, what may seem like a fair and equitable division of responsibilities at the present can end up anything but in a a few years or even months when major life events happen.

Centers for Medicare and Medicaid Studies Issue Guidance to States on Service

Published on: January 27, 2019 | by Ettinger Law Firm

The Centers for Medicare & Medicaid Services (CMS) recently released a “Dear State Medicaid Director” letter highlighting ten opportunities for states to better serve individuals dually eligible for Medicare both and Medicaid. The letter states that these these opportunities are newly available to states through Medicare rulemaking or other CMS burden reduction efforts and can be used to help better the lives of an estimated 12 million Americans dually eligible for Medicare and Medicaid.

Medicaid is an important source of medical coverage for individuals dually qualified Medicare beneficiaries as the former covers services the latter does not, such as long term care in nursing homes or assisted living facilities. Additionally, Medicaid aids in cost reduction for Medicare by helping pay Medicare premiums and cost-sharing, which may be high for low income individuals.

The outlines in the letter include new developments in managed care, using Medicare data to inform care coordination and program integrity initiatives, and reducing administrative burden for dually eligible individuals and the providers who serve them. Many advocacy groups have welcomed CMS’s efforts to forge closer ties with state administrators to improve the Medicare Part A Buy-in Program and simplify the eligibility and enrollment processes for Medicare Savings Programs.

Can New York Probate Judges Reject Parts of a Last Will and Testament?

Published on: January 26, 2019 | by Ettinger Law Firm

A last will and testament is an important legal document that tells our loved ones and the government how we wish for our estate to be apportioned to heirs and friends upon passing away. Although New York trust and estates law give testators wide latitude to decide what parts of their estates go to whom, there are still certain restrictions on what types of property can be given away if there is a surviving spouse and circumstances in which a testator may be coerced into created an invalid law.

In cases where some portions of the last will and testament are invalide, the surrogate court probating the will must admit the document if the court is satisfied the will is genuine, the testator was of sound mind or not under any undue restraint, and was executed in accordance with statutory requirements. However, the court will have to throw out parts of the will that are otherwise invalid so long as it can separate without defeating the testator’s intent or destroying the overall testamentary scheme.

Courts can also strike portions of a last will and testament they deem to be invalid due to improper execution, such as additions made to the document after a witness affixed his or her mark on the will. This same action may be applied when courts deem that addendums to a will were made when the testator was incapacitated or otherwise coerced into adding a section to the document. Courts are well within their power to isolate these particular sections of the will and preserve the original intentions of the testator that were properly executed.

New York Surrogate’s Court reverses Tax Department penalty on QTIP Trust

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

A New York Surrogate’s Court judge recently handed down a ruling striking down a substantial state Tax Department penalty levied against the surviving spouse who became the beneficiary of a qualified terminable interest property trust (QTIP) established by the deceased husband. The judge’s order could have further reaching implications for other QTIP trusts established under similar circumstances.

The ruling effectively reverses a $462,546 levied by the state Tax Department against because the QTIP trust was established in 2010 during a one-year suspension of the federal estate tax. Under the wording of New York state tax laws, the state could not levy taxes on a trust that the federal government itself could not. The case represents a special set of circumstances that other individuals in similar positions may be able to take advantage of in order to avoid paying costly taxes on their QTIP trust.

Ordinarily, a QTIP trust allows a tax deferral on an trust, not a tax avoidance, by allowing the assets of a deceased spouse to pass on to the surviving spouse without taxation. However, upon the passing of the second spouse, the QTIP assets and the second spouse’s estate are subject to inheritance taxes. In this case, the lawyers for the trust holders were savvy enough to argue that the way New York estate laws were written would allow QTIP trusts established in 2010 to be passed on without any tax.