New York Estate Planning & Elder Law Blog

Nursing Home Evictions and your Rights as a Resident in New York

Published on: October 17, 2018 | by Ettinger Law Firm

No one wishes to end up in a nursing home or require assisted living care but for many Americans, it is a reality that will come true and needs to be planned for. When we do enter a nursing home or have our loved ones placed there, we expect the facility will look after residents and provide the appropriate care to ensure elders live their Golden Years in comfort and dignity.

However, because nursing homes and other skilled care facilities are for-profit business that look to maximize their income and payments, particular from federal entitlement programs like Medicaid, they sometimes make decisions that are not in the resident’s best interest. One of the most drastic measures a nursing home can take is evicting a resident and will often employ a variety of measures to see the process through.

Often times, nursing homes will justify an eviction by saying the facility simply cannot meet the resident’s needs. Excuses for why a nursing home cannot take care of a resident include that individual having dementia, being combative, or is non-weight bearing and needs assistance for even the simplest tasks. Other times, nursing homes will reevaluate residents after the facility converts to another type of assisted living facility and focuses only on taking care of patients with different medical and lifestyle needs.

New York DTF Valuation Standards and Estate, Part I: Valuation Standards

Published on: October 14, 2018 | by Ettinger Law Firm

Estate planning involves asset valuation for purposes of taxation, financial and investment planning, and future distribution to heirs and beneficiaries of record. New York Department of Taxation and Finance (“DTF”) guidelines for ad valorem real property taxation of estates is defined by the standards of the Office of Real Property Tax Services (“ORPTS”). The Uniform Standards of Professional Appraisal Practice (“USPAP”) is basis to New York guidelines for property valuation, including the statistical techniques and professional appraisal practices. The USPAP is informed by both federal and state laws; as well as precedent setting case record; and rules and regulations of the ORPTS. Estate planners should be aware of the rules to ethical best practice when working with an appraiser during the valuation process.

Ethical Standards of Valuation

The New York ethical standards of valuation as described by the USPAP, are divided into four (4) four categories best practices:

Making Deferred Compensation Work for your Estate Planning Goals

Published on: October 13, 2018 | by Ettinger Law Firm

Qualified plans such as IRAs, 401(k)s, 403(b)s and other deferred compensation are excellent ways to help reach your estate planning goals and ensure your wealth is not depleted by excessive taxes and assisted living costs. IRAs in particular help achieve both of these goals because they are not taxed and if utilized properly, will not count against you when applying for Medicaid to pay for nursing home care.

For estate planning purposes, qualified plans are considered those which individuals make contributions to while working and begin making at least the required minimum distribution (RMD) at 70-years old. IRAs and qualified plans help encourage people to save early and often for their retirements by offering these tax-free incentives and should be taken full advantage of to ensure we can live our our retirement in comfort.

If an individual is already living in a nursing home and applying for Medicaid, the principal amount of the IRA is protected when calculating one’s assets to determine whether or not he or she qualifies for Medicaid as long as that person is taking the RMD. For a Roth IRA, it is not necessary to take the RMD if distributions are being taken.

The Advantages of the Revised UFADAA for Estate Planning

Published on: October 12, 2018 | by Ettinger Law Firm

High wealth investors can avoid federal estate taxes on digital assets with the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) since 2015. Estate planners know that the end-of-life planning of trust and estate assets may include a whole host of digital assets, including financial assets such as cryptocurrency, as well as nonfinancial assets like business websites, digital storefronts, payment gateways, enterprise data, cloud storage repositories, contact lists, social media, subscription accounts, as even digital medical images and records.

Terms of Service Agreements

Legal consideration of terms of service agreements exhibits statutory provisions limiting access to designated user account access. Legal issues arise when the owner of a digital account has died or is otherwise incapacitated. Without the capacity to log into an account, an estate executor is posed with a challenge that has the potential to result in probate court intervention. If the owner of an account mentioned in a will or last testamentary documents of an estate is deceased, the account providers are under no binding legal obligation to allow others to access those digital accounts held in the decedent’s name.

New York Estate Law on Revoking a Trust

Published on: October 10, 2018 | by Ettinger Law Firm

Creating a trust is one of several ways folks can pass on the fruits of their hard work to family, friends, and business partners and has the added bonus of being able to avoid the time consuming and costly process of passing those assets of the estate through probate. With a trust, the creator names a trustee, beneficiaries, and how the trustees are to manage the trust. It is important to know that there are different types of trust, which can severely limit the creator’s control over the trust while he or she is alive.

A revocable trust is just that, one that can be altered or done away with during the lifetime of the creator for whatever reason he or she sees fit. Common reasons for changing a revocable trust can be related to life changes like getting married, divorced, having children, or financial changes. Many times, grantors create revocable trusts because they are malleable but some estate planning choices require the grantor create an irrevocable trust that does not allow he or she to make alterations.

When a grantor creates an irrevocable trust, he or she transfers assets to the trust and effectively lose ownership or control over them. One of the main benefits of this type of trust is to shield assets from creditors since the assets and any income associated with them no longer belong to the debtor. Irrevocable trusts can also be useful to spend down assets to qualify for Medicaid which is granted only to those with small amounts of assets.

Publicity and Estate Rights to Copyright and Trademark

Published on: October 9, 2018 | by Ettinger Law Firm

Celebrity assets left without a will or formal testamentary estate document are increasingly of interest to both estate and intellectual property law practitioners. Example is the estate of the late Singer, Aretha Franklin. Otherwise known as the “Queen of Soul,” the estimated $80 million estate involving the value of the artist’s artistic copyright and the trademark of her celebrity, has been embroiled in ongoing legal dispute over permissions to her name, work, image, and likeness within commercial publicity. Of the estate’s intellectual property which has been contested in litigation over publicity rights, a significant portion of those assets has been recently subject to taxation.

Merchandising Rights of Publicity

Trademark and copyright law allow for estate administration of port-mortem rights to publicity associated with intellectual property assets. For purposes of valuation, the image, likeness, or representation of an artist or celebrity is an asset. Merchandising rights entitle a copyright or trademark licensee to derive future value from those assets, based on strategic performance estimates of a publicity campaign. Celebrity publicity valuation is complicated by publicity placement, as well as the cost of trademark permissions. Request for use of a copyright or trademark for publicity requires legal agreement. Terms and conditions to publicity agreements generally include a royalty clause, specifying a percentage based on an estimate of the future streams of income to flow from the use of a celebrity’s work or image.

Mendieta Estate v. Amazon Studios

Published on: October 5, 2018 | by Ettinger Law Firm

September 28, 2018, the estate of Cuban American Artist, Ana Mendieta filed suit against Amazon Studios for copyright infringement of her work in a Seattle federal court, Mendieta Estate v. Amazon Studios, Case No. 2:18-cv-01426. The dispute claims that the Amazon’s cinematic production, Suspiria directed by Luca Guadagnino, a remake of the 1977 horror film of the same directed by Dario Argento, extrapolates its content from Mendieta’s work. Guadagnino the director of award-winning film Call Me by Your Name, 2017, clarified his interest in Mendieta as inspiration, citing feminist artists in development of his film productions. The case exhibits how estate fiduciaries can protect copyrights to artistic assets under federal law.

Cease and Desist

The estate claims two of the scenes from the movie derive narrative from Mendieta’s photographic work, Rape Scene, 1973, and her performance Untitled: Silueta Series, Mexico, 1978. Amazon was served with a cease and desist letter in July of this year. Damages for the use of Mendieta’s work without express consent of the estate were demanded. Amazon’s response to letter has been to remove the contested scenes from the movie’s trailers.

Elder Law Estate Planning Basics – What About Pets?

Published on: October 5, 2018 | by Ettinger Law Firm

When planning our estate, most of us do so with the intent of making sure our family and close friends are taken care of after we pass away and for some of us, that can include our companion animals many consider to be as close as family. Fortunately, New York trust and estate laws allows taking care of our pets to be more than an afterthought and gives individuals the opportunity to proactively plan for the even that we may not be around to take care of the animals we love so much.

In New York, the legal mechanism that allows pet owners to posthumously care for their companion animals can be found in the Uniform Probate Code § 2-907. Honorary Trusts; Trusts for Pets. New York is one of over 20-states that allow these special kinds of trusts to allow for the care of pets and other domesticated animals. Depending on the type of animals to be cared for, these arrangements may be as simple as bequeathing animals in a will and leaving a small amount of money or as complex as placing an entire farm into a trust and allowing beneficiaries to name caretakers.

Honorary trusts can be created for a whole host of situations with the basic goal being to have money put away to ensure maintenance of some property. This can include keeping headstones at cemeteries in good condition, preserving artwork, and providing for food and medical care of pets. It is not necessary to have a beneficiary named but it is also important to note that these types of trust can only last for 21-years, which may complicate care for long-lived animals.

New Bill would allow pharmacists to give Medicare patients lowest price on prescription drugs

Published on: October 1, 2018 | by Ettinger Law Firm

Having prescription drug coverage is extremely important to ensuring we get necessary, life-saving medications while also making sure we do not go bankrupt on impoverished it the process. However, using prescription drug insurance to buy medications does not always yield the best price for consumers and pharmacists know this but cannot always inform patients about the cost savings because they are contractually bound in one way or another to remain silent.

Congress recently passed a pair of bipartisan bills aimed at helping consumers get the best price on prescription drugs by prohibiting contractual obligations that require pharmacists to stay silent about how consumers may be able to save money. If signed into law, the the Patient Right to Know Drug Prices Act (S.2554) and the Know the Lowest Price Act (S. 2553) would remove barriers placed on pharmacists and allow them to volunteer information to help patients save money on vital prescriptions.

The Patient Right to Know Drug Prices Act (S.2554) would bar insurers and Pharmacy Benefit Managers (PBMs) from placing limits on a pharmacy’s ability to tell consumers when there is a difference between how much a patient would pay for a prescription with insurance compared to without it. The bill would apply to insurance plans offered through exchanges on the Affordable Care Act (ACA) and by those offered by private companies.

The 3-Tier System Rule of Third-Party Access Under the Revised UFADAA

Published on: September 30, 2018 | by Ettinger Law Firm

Since ratification of the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) in 2015, the guidelines for third-party access of digital assets of deceased or incapacitated parties has been refined to include guidelines to estate fiduciaries (i.e. trustees, executors, or other agents) and court-appointed conservators or guardians of protected persons’ estates with power of attorney appointment to gain lawful access to a named individual’s digital accounts. RUFADAA provides instructions for third-party treatment of digital assets in a 3-tier system:

Tier 1: Custodian Online Tool

RUFADAA provisions allow for custodian online tool administration of account management after an individual with designated user access credentials is deceased or incapacitation. For example, Facebook Legacy Contact and Google Inactive Account Manager offer terms of service agreement instructions for account modification or deletion where