New York Estate Planning & Elder Law Blog

A recent analysis of generic drug prices paid by Medicare Part D enrollees by healthcare consulting firm Avalere Health determined that despite the relatively stable prices of these medications, some seniors find themselves paying more and more each year. The reasons, according to the report, have to do with the way insurance companies place enrollees into pricing tiers and the lack of policy changes to curb higher out of pocket costs for elders.

As reported by Avalere, insurance companies have been moving many generic drugs into copay tiers requiring patients to pay larger portions of the drugs’ cost, thus shifting more costs onto patients this way and keeping Part D premiums stable. The moves are important to insurance companies because they understand enrollees decide on their Medicare Part D plans based on the price of the premiums. Unfortunately for patients, they do not realize the full costs of their healthcare plans until they start filing prescriptions.

The numbers on just how much Part D enrollees are paying for their generic drugs is quite staggering. Despite the average prices of generic drugs increasing by on 1 percent from 2011 to 2015, total out of pocket costs increased by $6.2 billion, or 93 percent. Unfortunately, some of the drugs subject to these massive upcharges include some of the most widely prescribed and low cost medications for chronic conditions such as cholesterol, hypertension, and diabetes.

Since introduction of Bitcoin as a valuable retirement fund asset, the significance of blockchain technology has come to influence the estate planning process as well. Estate planning investors with cryptocurrency assets acknowledge blockchain technologies are vital instruments for ensuring a will or estate does not extend into a lengthy probate proceeding. By registering a will, estate, or trust on a blockchain such as “Blockchain Apparatus” or “Proof of Existence,” many of the traditional legal issues surrounding settling executor responsibilities are more readily negotiated. The result: time-efficient distribution of assets or liquidation of those assets on behalf of heirs.

“Self-executed” Registration and Modifications

Modification of blockchain wills, estate, or trust documentation is also easier. Estate holders can now elect to alter inheritance decisions without delay with smart contracts.  The platform Blockchain Apparatus allows an estate holder to “self-execute” a will without assistance from an estate planner or attorney. While the verdict is still out on blockchain will execution services, niche market digital legal services specifically for cryptocurrency investors like “Will and Testament Coin” which is in the early development stage, may soon be an option for those planning an estate.

New York law allows for a creditor to attach a debt collection order to an estate with a claim of lien. A judgment lien is a court ordered sale of real and personal property part of an estate such as antiques, art, jewelry, and other tangible valuables. A licensed attorney at law specializing in estate law and advise an executor or trustee of New York statutory rules of “Estates, Powers, and Trusts” pertaining to an estate that has been attached with a lien.

Notice of Lien Procedure

New York Laws CVP – Civil Practice Law & Rules, Article 52: Enforcement of Money Judgements §5202 and §5203 outlines statutory rules to lien procedure. A Claim of Lien must be filed with the Office of the Clerk in the county where the property is located four months after the work is completed or the materials supplied.

Federal regulators recently issue a warning health care providers accepting federal funding to be on the lookout for inappropriate prescriptions of a powerful antipsychotic drug commonly used in nursing homes to treat a host of disruptive behaviors. The memo comes from the Centers for Medicare and Medicaid Studies and applies to providers accepting Medicare Part D,  including nursing homes and pharmaceutical distributors.

The drug in question is called Nuedexta and is commonly used to treat a rare condition marked by uncontrollable laughing and crying, called pseudobulbar affect (PBA) but is suspected to also be overprescribed for so-called “off label” uses. In the past year, several media reports have indicated that doctors at nursing homes have been overprescribing Nuedexta in order to control not only the symptoms of those struggling with dementia but also generally unruly behavior in residents without dementia.

While Neudexta’s maker, Avanir Pharmaceuticals, claims many dementia patients suffer from PBA and benefit from the drug, the company has also generated millions of dollars in annual sales in nursing homes since the drug launched in 2011. In most cases, the federal government picked up the costs for those bills when it reimbursed nursing homes through Medicare’s Part D program.

In New York, the admirable and highly instrumental private foundation is well-recognized means to venerable ends. Indeed, in 2017, the U.S. federal Internal Revenue Service (“IRS”) reported that New York’s private foundations donated $10,716,118,775 in funds to nonprofit charities, the highest in the nation. Rules to private foundations, otherwise known as tax-exempt “trust” within federal and New York statute, guide the formation and administration of those entities during the life of a benefactor and in to the future after they are gone.  

Definition

Defined as a form of “trust” in subparagraph (a)(1) of Section 8-1-4 of New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 8-1.8, “Private foundations:  administration of certain trusts as defined in the United States Internal Revenue Code of 1954,” and more specifically in section 509 of the United States Internal Revenue Code of 1986, the private foundation is a tax-exempt entity formed to avoid liability of tax imposition on undistributed income.

What happens when a Facebook account holder dies and leaves valuable assets such as family photo albums and digital wallet details, including bank card information on the site? The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) of 2015 amended federal guidelines to family member, executor, attorney-in-fact, or trustee access to digital assets transferred to an estate, trust, or will. The statute specifies express authorization must be obtained by the owner before a family member or fiduciary can access a digital asset for any purpose.

Why arrange family and fiduciary access to an account?

The widespread use of digital assets in the form of a personal “account” are now characterized by a range of designated access user identities linking individuals to everything from Bitcoin accounts used for cryptocurrency trading, to social media accounts like Facebook and their ever-expanding platform of services. A fiduciary’s ability to access a decedent’s online accounts requires designation of control for disposition of digital assets by the account holder before death.

When Michael Jackson’s estate filed suit against ABC Inc. and the Walt Disney Company in May 2018, the world viewed the consequences to unauthorized use of the late celebrity musician’s intellectual property (IP). The estate currently holds all copyright to Jackson’s songs and music video work. The thirty works which the estate owns full rights to were included as part of a two-hour made for television documentary about the artist. Attorney representation in the lawsuit argues that the estate was never approached about license of Jackson’s material for use. The defending parties in the case maintain infringement of the estate’s rights to the property never took place; countering “fair use” of material already in circulation within the media.

Copyright, Control, Contestation

According to New York law, rights to copyright ownership continue as estate rights after a decedent has passed. A gift or bequest provides an executor or trustee explicit instructions for copyright(s) licensing, use, and distribution. Intellectual property transferred to an estate or trust after registered with the United States Patent and Trademark Office (“USPTO”) entitles a registrant continued rights to that work seventy (70) to one hundred twenty (120) years after death depending on type of work, and existing distribution or installation in the public domain.

Depending on the terms and conditions of a defined contribution plan, a participant may elect to extend the tax-deductible life of those assets by transferring them to an estate or trust prior to death. A key incentive for extending the distribution period of defined contribution plan assets is transfer of tax-deductible eligibility to beneficiaries of an estate or trust. Surviving spouses can consider a Spousal Rollover Independent Retirement Account (“IRA”) to shelter beneficiary distribution of those assets after the death of a defined contribution plan participant.

Required Minimum Distributions

The ratio of required minimum distributions (“RMDs”) from a defined contribution plan is generally more favorable in treatment during an estate holder’s lifetime. RMDs can be calculated during a participant’s lifetime, and initially based on a distribution period specified by the Uniform Lifetime Table.

With the enactment of the U.S. federal Tax Cuts and Jobs Act of 2017 (“Tax Act”) estate and gift transfers became more attractive in the planning of trusts (Pub. L 115-97). The unified credit exemption accorded under the Act, offers a global elimination of transfer tax on a set level of asset holdings gifted or transferred by an individual decedent. The rule change, however, reduces the availability of federal estate tax exemption for gifts and transfers not eligible under the Act. Generation-skipping tax exemption per decedent remains separate from the unified credit exemption from gift and estate taxes.

New IRS Tax Exemption Rules

As of January 1, 2018, the IRS raised tax exemption for gift and estate transfer amounts to 11,180,000 for single individuals, and $22,360,000 for married couples. This is an increase from 2017 levels from $5,490,000 for single individuals, and $10,980,000 for married couples. Modifications of the law before January 1, 2026 are possible, and estate planners are advised to take advantage of the latest exemptions as part of trust planning strategies in advance.