Finance & Law

Portrait of Elderly man lost in thought

By Nancy Burner, ESQ.

Nancy Burner, Esq.

Much of the estate planning discourse revolves around planning techniques for the married couple, whether it be for tax planning or asset protection planning. However, for seniors who have never married or for those whose spouse is deceased, what, if any, special considerations need to be made? This article will focus on some of the unique challenges that the unmarried senior may face.

For the single individual who is living with another person but is unmarried, planning should be done to specifically provide for that partner, if so desired. It is important to recognize that partners are not given rights to property the way spouses are. Even if a person has resided with another for decades, without proper estate planning, that partner will not be entitled to assets of the decedent. If the plan is to give property to a partner after death, one should make sure that they designate that partner as a joint owner or as a beneficiary.

Having a will that designates a partner as the beneficiary of the estate can also ensure that property passes to the partner. However, in order for the will to be carried out, it must go through probate.

In New York, the probate process includes notifying and obtaining the consent of the decedent’s heirs. For instance, if a single individual with no children dies, but the parents or siblings of that individual survive, consent must be obtained from those parents, or if deceased, the siblings.

If the family members do not consent, they have the opportunity to present objections to the will that leaves assets to the partner. If their objections are successful, the will is invalidated and the law of intestacy prevails, which assumes the deceased person would have wanted their estate to be distributed to their family members, and not their partner. If a potential conflict may arise between a partner and family members, planning to avoid probate should be a primary goal of the estate plan.

For the unmarried person who is “unattached” and does not have a close relationship with any relatives, avoidance of probate is likely also an important goal particularly if they are charitably inclined since consent of family members is still required even when the beneficiary of a will is a charity. In addition, singles who are living alone should consider planning techniques that will allow them to maximize their assets so that they can get long-term care.

Being cared for in old age is difficult enough when you have a spouse or partner to help you, but if you live alone, you’ll want to preserve assets and income to the fullest extent so that you can get the care you need. This may include looking into long-term care insurance or doing asset protection planning, or both!

What if a single person is living with a partner and is desirous of providing for that partner, but wishes for their estate to ultimately be distributed to other family members? It is very common that a widow or widower has a relationship with someone for whom they wish to provide but wants to ensure that their assets go to their children after both partners are deceased.

The best technique for implementing this kind of plan is to use a trust. Trusts can hold assets for the lifetime of the partner but distribute the assets to other family members after the partner’s death. Trusts also avoid probate so that potential contests are avoided. Depending on the type of trust utilized, trusts can also protect assets in case either partner needs Medicaid to pay for long-term care.

In addition to the foregoing considerations regarding leaving assets at death, it is equally important to remember that partners, friends or indeed family members do not have rights to make decisions without proper planning. An estate plan is not complete without comprehensive advance directives that allow loved ones to make health care and financial decisions for you if you are incapacitated.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

Make sure your attorney includes a 'common disaster' provision in your will.

By Linda Toga

THE FACTS: My father and sister perished in a plane crash under circumstances making it impossible to determine the order of death. My sister is survived by her spouse, Joe, and two children. My father’s will leaves his entire estate in equal shares to me and my sister, per stirpes. He was under the impression that his assets would pass to his grandchildren if anything happened to my sister. He was quite adamant that he did not want his assets to pass to Joe. My father’s will also includes a provision stating that if he and a beneficiary die in a common disaster, he would be deemed to have predeceased the beneficiary. My sister’s will leaves everything to Joe.

THE QUESTION: Joe claims that one-half of my father’s estate now passes to him through my sister’s estate and not to my sister’s children because my sister is deemed to have survived my father. Is that correct?

THE ANSWER: Unfortunately with respect to your father’s wishes, the answer is “yes.” As much as your father may have wanted his assets to pass to his grandchildren, as a result of the inclusion of the common disaster provision in his will, Joe will effectively inherit half of your father’s estate along with any assets your sister owned at the time of her death.

HOW IT WORKS: The provision in your father’s will concerning dying in a common disaster with a beneficiary controls here even though it appears to undermine your father’s wishes. Pursuant to that provision, your sister is deemed to have survived your father. That means that half of his assets will pass to your sister’s estate as if she were alive. The assets will then be distributed in accordance with her will. Since your sister’s will leaves everything to Joe, Joe will, in fact, be the beneficiary of the assets passing from your father’s estate to your sister’s estate.

The common disaster provision is one that is often ignored or misunderstood by clients. However, not giving the possible impact of the provision serious consideration when engaging in estate planning is a mistake that can clearly lead to unintended consequences.

If your father wanted to be sure that his assets would not end up in Joe’s hands, the order of death set forth in the common disaster provision of his will should have been reversed. In other words, the common disaster provision in his will should have stated that in the event he died along with a beneficiary under circumstances that made it impossible to determine the order of death, he would be deemed to have survived the beneficiary.

Under that scenario, your sister would be deemed to have predeceased your father. This, in turn, would trigger the per stirpes language in the will that basically provides that if a named beneficiary predeceases the testator, the share of the estate allocated to the predeceased beneficiary will pass to that beneficiary’s children.

The end result of having your father survive your sister would be that the share of your father’s estate allocated to your sister would not be distributed to her estate but would have passed directly to her children.

Since your father’s assets would not have been included in your sister’s estate, they would not be distributed to Joe. Your sister’s wishes as to the distribution of her estate to Joe would be honored since he would still inherit the assets that were owned by your sister at the time of her death. At the same time, your father’s wish that his grandchildren be the beneficiaries of his estate would have been fulfilled.

Issues like the one created by the competing provisions in your father’s will highlight the need to work with an experienced estate planning attorney and illustrate the importance of asking questions to ensure that you understand fully the implications and consequences of every provision in your will.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate, estate administration, litigation, wills, trusts, small business services and real estate from her East Setauket office.

Defendants from Port Jeff, Mount Sinai, Coram, among those indicted

Stock photo

In a plot that could have been lifted straight from the script of “The Wolf of Wall Street,” six North Shore residents were among 14 indicted in federal court in Brooklyn July 13 for their alleged roles in a $147 million stock manipulation scheme, according to the U.S. Attorney’s Office for the Eastern District of New York.

A press release regarding the indictment alleged the defendants defrauded investors by obtaining shares in five publicly traded companies from insiders at the companies for below-market prices, artificially drove up the prices of the shares, while “aggressively and repeatedly” calling and emailing victims to purchase shares — oftentimes senior citizens — and then sold their own shares between January 2014 and July 2017.

“Manipulating stock prices, as alleged in this case, to appear more attractive to investors, is a deliberate attempt at sabotaging fair market trading,” Assistant Director-in-Charge for the FBI’s New York field office William Sweeney Jr. said in a statement. Sweeney and acting U.S. Attorney Bridget Rohde read the indictments. “Manipulation, at its core, is a true act of deception, especially when the elderly are targeted. This scheme involved an incredible amount of money, more than $147 million. That’s no small change for even the savviest investor. As evidenced by our arrests today, we take these matters seriously, and will continue to pursue those who make victims out of unwitting participants in these schemes.”

Managers of My Street Research — a Melville based investment firm — Erik Matz, 44, of Mount Sinai and Ronald Hardy, 42, of Port Jefferson were among those indicted. They also engaged in a scheme to launder about $14.7 million in proceeds obtained as a result of the scheme, according to Rohde’s office. The government restrained Matz’s Mount Sinai home and seized bank accounts containing alleged criminally obtained money. The attorney representing Matz and Hardy did not respond to a request for comment. A phone message requesting comment from My Street Research was not returned.

Dennis Verderosa, 67, and Emin L. Cohen, 33, both of Coram, and McArthur Jean, 34, of Dix Hills were among those listed as “cold-callers” for the operation.

Cohen’s and Verderosa’s attorneys each declined to comment via email. Jean’s attorney did not respond to a request for comment.

Robert Gilbert, 51, of Cold Spring Harbor and owner of the investment firm Accredited Investor Preview was also among the 14 people indicted.

“We’re still studying the indictment, but Mr. Gilbert is mentioned substantively in only one paragraph,” Gilbert’s attorney Ira Sorkin said in a phone interview. “He has not been incarcerated, and there is no claim any of his assets have been frozen as is the case with some of the others. Until we have a chance to read further into the indictment we will have no further comment.”

The five companies whose stocks were pushed by the “pump-and-dump” scheme were National Waste Management Holdings, Inc., CES Synergies, Inc., Grilled Cheese Truck,  Hydrocarb Energy Corporation and Intelligent Content Enterprises, Inc.

Editor’s note: Anyone victimized by the alleged scheme can contact the writer of this story via email at alex@tbrnewspapers.com

By Linda Toga, Esq.

THE FACTS: After my mother’s death, my father met a woman, Mary, who was his partner for many years. They lived in my father’s house, which has a value in excess of $3 million. In his will my father left the house to Mary. He also named Mary as the beneficiary of his life insurance policy, which has a death benefit in excess of $2 million. He left his residuary estate to me and my sister. However, the will states that any estate taxes that may be owed are to come out of his residuary estate. My concern is that paying the estate taxes will likely deplete the residuary estate, leaving my sister and me with nothing.

THE QUESTION: Is there some way we can compel Mary to pay the estate tax from the funds she is receiving? It does not seem fair that we may be paying the taxes on the assets which she will be enjoying.

THE ANSWER: Since your father clearly intended for you and your sister to be beneficiaries of his estate, it appears that he may not have understood which of his assets would be considered in calculating his estate’s tax liability.

If, for example, your father and Mary were married at the time of his death, the value of the assets passing to Mary would be excluded from the value of the estate used to calculate the estate tax liability. That is because there is an unlimited marital deduction that applies when determining whether or not federal or New York state estate tax is due.

It is possible that your father believed the exclusion would apply based upon the fact that he and Mary were living together as husband and wife. Unfortunately for you and your sister, the taxing authorities do not see it that way.

Another possibility is that your father assumed that the death benefit from his life insurance policy would not be included in his gross estate for estate tax purposes. That is a common misconception that often leads to an unexpected tax liability.

Estate taxes are calculated based upon the value of all the assets owned or controlled by an individual at the time of death. Since your father could have changed the beneficiary listed on his life insurance policy up until the time of his death, he had “control” over the $2 million death benefit. For that reason, the value of the death benefit is included in his estate for purposes of calculating the estate tax owed.

It is noteworthy that some people actually buy life insurance so that the death benefit can be used to cover the estate taxes that may be assessed against their estates. By doing so, the decedent provides his beneficiaries with liquid assets that can be used to pay any estate taxes that are assessed against the estate. This, in turn, eliminates the possibility that the beneficiaries may need to sell estate assets just to pay the estate tax.

Even if your father was aware of how the estate tax would be calculated, he may not have realized that his will dictated that all of the taxes be paid from his residuary estate. If that fact had been explained to your father, he may have chosen to apportion the estate tax liability between all of the beneficiaries of his estate.

By apportioning the taxes that were due, Mary would be responsible for the taxes attributed to the value of the house, for example. That would have certainly decreased the amount of taxes being paid from the residuary estate earmarked for you and your sister.

In light of the fact that your father’s will does not provide for the apportionment of the estate, the full tax liability will be paid from the residuary estate unless Mary is willing to pay some or all of the estate tax assessed against your father’s estate. If she is not willing, there is nothing the executor of the estate can do but pay the taxes in accordance with the provisions of the will.

The amount of the estate tax due from your father’s estate will depend on when your father died since the exclusion amount on both the federal and New York state estate tax has been increasing annually for a number of years.

Since April, 2017, the exclusion amount for both federal and New York state estate tax exceeds $5.2 million. Even without apportionment, there is a chance that no estate tax will be due unless the value of your father’s estate exceeds the current exclusion amounts. If it does not, the full amount of the residuary estate will pass to you and your sister without any tax liability.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate, estate administration, litigation, wills, trusts, small business services and real estate from her East Setauket office.

A common concern is that after paying premiums on a long-term care policy for years, it will never be accessed for care. Stock photo

By Nancy Burner, ESQ.

Nancy Burner, Esq.

With the ever-changing health care landscape both federally and on a state level, and the aging of the baby boomers, it may be time to take a second look at long-term care insurance. Historically, New York State residents have had the opportunity to receive long-term care benefits through the Medicaid program.

New York has been one of the most generous states in providing care for disabled and aged residents. But you do not have to be a health care expert to see that state and federal budgets are threatening to curtail Medicaid benefits, and many current programs cannot be relied upon to provide the same amount of care that they have in the past.

To battle these changes, a proper estate plan should provide an arsenal to protect against catastrophic health care costs. It is often advisable to consider all available resources when putting together a long-term care estate plan.

We do not have a crystal ball that will show the future of Medicaid or what the needs of each individual will be. But we do know that the baby boomers represent a critical mass of individuals moving toward unprecedented longevity.

In addition, we know that a large percentage of these individuals living longer will likely need care. Further, while many baby boomers and their relatives traditionally cared for aging parents, the economics facing future generations shows that third-party caregivers will be the norm, not the exception.

For clients facing these looming questions of who will provide care, where will the care be provided and how will it be paid for, long-term care insurance is one possible solution. Prudent estate planning may require putting together a team of professionals to help make decisions to protect your assets and autonomy, regardless of what the future holds. This team may include an elder law attorney, financial advisor and an insurance professional. Working together, they can provide you with options for protecting assets to avail yourself of public benefits, preserving and growing assets and purchasing insurance products that make sense in your plan.

Long-term care insurance can often pay for home care assistance or the cost of a nursing facility. If you start accessing your long-term care benefit while living at home and then transition into a nursing facility, the proper planning could make a huge difference in the amount paid toward the cost of care.

Also, many individuals do estate/elder law planning by creating irrevocable trusts, which commences the five-year look-back period for Medicaid nursing home care. They purchase long-term care insurance to cover the initial five-syear period.

Some clients find themselves in a position where they have high income and therefore fear that they will never qualify for Medicaid. Some have income that exceeds the lower Medicaid rate charged by the facility. This leaves them in the dubious position of not qualifying for Medicaid and therefore forced to pay the higher private pay rate.

Needless to say, current daily rates for nursing home care can be financially ruinous. Fortunately, there is a federal law that states that if an individual is eligible for Medicaid but for the fact that their monthly income exceeds the Medicaid rate at the nursing facility, the facility must allow that individual to pay privately at the Medicaid rate. This offers a large savings in the cost of nursing care; and, in the final analysis, the individual is never a Medicaid recipient.

The income of the individual can include Social Security payments, pensions, distributions from retirement assets, payouts on a long-term care policy, etc. With proper long-term care planning, the assets could be protected in an irrevocable Medicaid asset protection trust while the income is being used to pay for the facility.

While many will need long-term care in their lifetime, not everyone will require prolonged care. A common concern is that after paying premiums on a long-term care policy for years, it will never be accessed for care. It’s the age-old problem of paying for insurance that they hope they will never use. This creates a mental bias against insurance to pay for that kind of care.

Individuals prefer to believe that they will never need long-term care. For those with this concern, there are new policies commonly referred to as “hybrid policies.” These are life insurance policies with a long-term care rider attached. In this way, you can access the policy to cover the cost of care while living, but heirs can receive a death benefit if it is not used up. Some polices also allow the insured to cancel the policy and receive their investment back at any time.

The bottom line is that the landscape is ever changing, the assumptions we relied upon have changed, and if you plan on living long, you need to live and plan smarter. Maybe it’s time to reconsider long-term care insurance. If you can qualify medically and you can afford it, it may be just another necessary tool in your arsenal of weapons for “aging in place” and with autonomy. It may not be for everyone but it could be right for you. Take a second look.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

By Linda Toga

THE FACTS: My house and most of my liquid assets are held in an irrevocable trust that I funded over five years ago. I am fortunate in that my income is sufficient to for me to live comfortably without using my savings.

THE QUESTION: If I do need to move into a nursing home down the road, how will Medicaid deal with my income when it comes to determining if I am eligible for benefits?

THE ANSWER: Since Medicaid is a needs-based program, your eligibility will be based on the value of your available assets, meaning assets that are not in your trust, and your income. Even if your assets are very limited, if your income is sufficient to cover the cost of a nursing home, you will not be eligible for assistance.

However, because there are some sources of income that are exempt under the Medicaid rules, determining eligibility is more involved than simply applying the same monthly income level across the board.

Medicaid looks at all of the income you receive, at the source of that income and at your medical expenses to determine your Net Available Monthly Income or NAMI. If your monthly medical expenses equal or exceed your NAMI, Medicaid will deem you “income eligible.”

In general, Medicaid will consider income from stocks and bonds, IRAs and other qualified plans, pensions and trusts when making a determination as to whether you are eligible to receive benefits.

Medicaid will not, however, include in your NAMI income from German and Austrian reparation plans, Nazi persecution funds, state crime victims’ assistance funds, Seneca Nation Settlement Act Funds, special payments to American Indians or payments from federal volunteer programs.

Medicaid also exempts funds received from a reverse mortgage as long as you use the funds during the month you receive them.

If you are single, you will be allowed to keep all the exempt income you may receive plus an additional $50/month in nonexempt income and funds to cover the cost of your supplemental medical insurance premiums.

If you are a veteran, you get to keep $90/month plus exempt income and the cost of supplemental medical insurance. NAMI in excess of $50 (or $90 for veterans) plus the cost of insurance premiums must be paid to the nursing home.

If you are married and your spouse is well and continues to live in the community (the “community spouse”), the amount of income you may keep is the same as for an unmarried individual. However, your spouse, as the community spouse, is allowed a monthly income of close to $3,000 to help cover living expenses. If your spouse’s income is too large, Medicaid will apply a percentage of his or her excess income to the cost of your care in the nursing home.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate, estate administration, litigation, wills, trusts, small business services and real estate from her East Setauket office.

Suffolk County Executive Steve Bellone, on right, gets signatures from residents in support of the Community Protection Act outside Stop & Shop in Miller Place. Photo from County Executive Bellone's office

By Kevin Redding

In light of recent court rulings and pending lawsuits in favor of sex offenders, Suffolk County Executive Steve Bellone (D) is urging the New York State Legislature to follow in the county’s footsteps and get tough on sex criminals by passing legislation that gives the county authorization to uphold its strict laws against them.

On Feb. 11, Bellone and Legislator Sarah Anker (D-Mount Sinai) spoke with parents and residents in Miller Place about supporting and protecting the rules within the Suffolk County Community Protection Act — a private-public partnership law developed by Bellone, victims’ rights advocates like Parents for Megan’s Law and law enforcement agencies. It ensures sex offender registration and compliance, and protects residents and their children against sexual violence — much to the dismay of local sex offenders, who have been suing the county to try to put a stop to the act.

Suffolk County Executive Steve Bellone and Legislator Sarah Anker talk to residents about the Community Protection Act. Photo from County Executive Bellone’s office

“We’re encouraging people to go on to our Facebook page and sign the online petition,” Bellone said. “We want to get as many signatures as we can to communicate to our partners in the state that this is a priority that we pass legislation that makes it clear Suffolk County has the right to continue doing what it’s doing to protect our community against sex offenders.”

While the county executive said Suffolk representative have been supportive of the law, which was put in place four years ago, he wanted to make sure they’re armed with grassroots support to convince state colleagues they have a substantial evidence to prove it’s popularity and show it’s the right thing to do.

Since it was enacted in 2013, the Community Protection Act has been the nation’s strictest sex offender enforcement, monitoring and verification program, cracking down on all three levels of offenders when it comes to their proximity to a school facility or child-friendly area, and reducing sex offender recidivism in Suffolk County by 81 percent. Ninety-eight percent of Level 2 and more than 94 percent of Level 3 registrants are in compliance with photograph requirements, what Bellone said is a significant increase from before the law took effect.

Through its partnership with Parents for Megan’s Law, the county has conducted more than 10,000 in-person home verification visits for all levels of sex offenders, by sending retired law enforcement to verify sex offenders’ work and home addresses and make sure their registry is accurate and up to date. More than 300 sex offenders have also been removed from social media under the law.

According to the Suffolk County Police Department, the act is a critical piece of legislation.

“The program has been incredibly successful, which is why sex offenders don’t like it.”

—Steve Bellone

“The numbers don’t lie, there’s a lot of hard evidence and data that shows this act has done precisely what it was designed to do: monitor sex offenders and make sure they’re not doing anything they’re not supposed to be doing,” Deputy Commissioner Justin Meyers said. “To date, I have never met a single resident in this county who didn’t support [it].”

Besides the sex offenders themselves, that is.

The act has made Suffolk County one of the more difficult places for registered sex offenders to live and, since its inception, Suffolk sex offenders have deemed its strict level of monitoring unconstitutional, arguing, and overall winning their cases in court that local law is not allowed to be stricter than the state law.

In 2015, the state Court of Appeals decided to repeal local residency restriction laws for sex offenders, claiming local governments “could not impose their own rules on where sex offenders live.”

In the prospective state legislation, Bellone hopes to close the sex offender loophole that would allow high-level sex offenders to be able to legally move into a home at close proximity to a school.

“The program has been incredibly successful, which is why sex offenders don’t like it,” Bellone said. “This is what we need to do to make sure we’re doing everything we can to protect kids and families in our community. As a father of three young kids, this is very personal to me and I think that while we’ve tried to make government more efficient and reduce costs here, this is an example of the kind of thing government should absolutely be spending resources on.”

Suffolk County Executive Steve Bellone, on right, with a community member who signed his petition urging state lawmakers to uphold the Community Protection Act. Photo from County Executive Bellone’s office

To conduct all the monitoring and fund educational resources offered to the community by Parents for Megan’s Law — teaching parents what to look out for and how to prevent their children from becoming victims — costs roughly $1 million a year, according to Bellone.

In addition to the residential restriction, Bellone is calling on the state to authorize the county to verify the residency and job sites of registered sex offenders, authorize local municipalities to keep a surveillance on homeless sex offenders, who represent less than 4 percent of the offender population in Suffolk County, and require them to call their local police department each night to confirm where they’re staying, and require an affirmative obligation of all sex offenders to cooperate and confirm information required as part of their sex offender designation.

“If people really knew this issue, I couldn’t see how they would oppose the Community Protection Act, because sex offenders are not a common criminal; there’s something fundamentally and psychologically wrong with somebody who commits sexual crime and we as a society have to understand that,” said St. James resident Peter , who held a “Protect Children” rally in the area last years. “Residents should know that the sexual abuse of children is out of control.”

According to the Centers for Disease Control and Prevention, one in four girls are abused and one in six boys will be sexually abused before they turn 18.

“It is imperative that we, not only as a community, but as a state, make efforts to further ensure the safety of our children from sexual predators,” Anker said. “We must do everything in our power to ensure that this law is upheld and that’s why I’ve joined [Bellone] in calling on the New York State Legislature to consider an amendment to grant the county the ability to uphold it.”

To sign the petition, visit https://www.change.org/p/new-york-state-protect-our-children-support-the-community-protection-act.

Wills kept in a safe deposit box are not obtainable to an executor without a court order.

By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I am trying to help my elderly parents organize their affairs. They want things to be as simple as possible for me when it comes time to handle their estates. My parents have wills and other advanced directives in place.

THE QUESTIONS: Other than their wills, are there other documents or any types of information that they should collect and organize now to make the administration of their estates easier?

THE ANSWER: You are lucky to have parents who seem to appreciate the fact that administering an estate is not necessarily easy and who are anxious to have everything in place. Having wills will certainly help you with respect to distributing your parents’ assets after they pass. However, distributing assets is often one of the last things that an executor must do.

Long before distributions are made it will be necessary to make funeral arrangements, contact life insurance carriers and banking and investment institutions, gain access to your parents’ safe deposit box, cancel credit card accounts, as well as all online accounts that your parents may have and locate documents relating to any real estate they may own or lease, to name a few.

While many of these things can be done before your parents’ wills are admitted to probate, you will not be able to marshal assets, close bank accounts or sell property until you are issued letters testamentary by the Surrogate’s Court. If your parents keep their wills in a safe deposit box, you will not be able to even get the will without a court order.

Although not exhaustive, the following is a list of the types of documents and some of the information that your parents may want to put together to facilitate your handling of their estates:

1. Deeds to burial plots

2. Documents relating to any preplanned or prepaid funeral arrangements, including military discharge papers if either parent was in the armed forces and wishes to be buried in a military cemetery or have an honor guard

3. Wills and any codicils to the wills and a list of the addresses of all of the people named in the will and/or codicil.

4. Trust instruments that name your parents as grantors, trustees and/or beneficiaries

5. Life insurance policies, including the beneficiary designation forms

6. Annuities

7. Bank statements and pins for use in ATMs

8. A list of bills that are automatically paid from their bank accounts or charged to their credit card accounts

9. Brokerage statements

10. Statements relating to IRAs, 401(k)s or any similar plans, including the beneficiary designation forms

11. Documents relating to pensions and/or deferred compensation plans

12. Deeds, leases and documents relating to time share properties

13. Loan documents, including mortgages, reverse mortgages, home equity lines, lines of credit (whether your parents are the lenders or the borrowers)

14. Credit card statements

15. Keys to safe deposit boxes and the combination to any safe they may use

16. Pins, security codes and passwords for online accounts, social media accounts and email accounts

17. Account numbers and log-ins for frequent flyer and other rewards programs

18. The names and contact information for their financial advisor, brokerage account manager, insurance agent, accountant and attorney

If your parents are able to gather these documents and provide the information set forth above, handling their estates once they pass should not be overly burdensome. The burden can be further reduced by retaining an attorney with experience in the areas of probate and estate administration. Doing so will ensure that the process goes smoothly and will give you the opportunity to deal with your loss without having to think about what needs to be done.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate and estate administration, real estate, small business service and litigation from her East Setauket office.

By Nancy Burner, ESQ.

Nancy Burner, Esq.

For many, the question of how to best care for our aging loved ones becomes a reality sooner than we think. Most people, when given the option, would prefer to age in place, remain in their homes for as long as possible receiving the care services they need in a familiar setting surrounded by family. For many, the Community-Based Long-Term Care Program, commonly referred to as Community Medicaid, makes that an affordable and therefore viable option.

Oftentimes we meet with families who are under the impression that they will not qualify for these services through the Medicaid program due to their income and assets. In most cases, that is not the case. Although an applicant for Community Medicaid must meet the necessary income and assets levels, it is important to note that there is no “look back” for Community Medicaid. What this means is that for most people, with minimal planning, both the income and asset requirements can be met with a minimal waiting period, allowing families to mitigate the cost of caring for their loved ones at home.

An individual who is applying for Medicaid Home Care may have no more than $14,850 in nonretirement liquid assets. Retirement assets will not be counted as a resource so long as the applicant is receiving monthly distributions from the account. An irrevocable prepaid burial fund is also an exempt resource. The primary residence is an exempt asset during the lifetime of the Medicaid recipient; however, if the applicant owns a home, it is advisable to consider additional estate planning to ensure that the home will be protected once the Medicaid recipient passes away.

With respect to income, a single applicant for Medicaid is permitted to keep $825 per month in income plus a $20 disregard. However, if the applicant has income that exceeds that $845 threshold, a pooled income trust can be established to preserve the applicant’s excess income and direct it to a fund where it can be used to pay his or her household bills.

These pooled trusts are created by not-for-profit agencies and are a terrific way for persons to take advantage of the many services available through Medicaid Home Care while still preserving their income for use in meeting their monthly expenses.

Functionally, the way that these trusts work is that the applicant sends a check to the fund monthly for that amount that exceeds the allowable limit. Together with the check, the applicant submits household bills equal to the amount sent to the trust fund. The trust deducts a small monthly fee for servicing these payments and then, on behalf of the applicant, pays those household bills.

As you can see, this process allows the applicant to continue relying on his monthly income to pay his bills and, at the same time, reduce his countable income amount to the amount that is permitted under the Medicaid rules. An individual who is looking for coverage for the cost of a home health aide must be able to show that they require assistance with their activities of daily living. Some examples of activities of daily living include dressing, bathing, toileting, ambulating and feeding. In fact, where the need is established, the Medicaid program can provide care for up to 24 hours per day, seven days per week.

The Community-Based Medicaid Program is an invaluable program for many seniors who wish to age in place but are unable to do so without some level of assistance.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

By Linda Toga

THE FACTS: My father died recently. He had a will in which he named my brother as executor. My brother and I have not spoken to each other in a number of years. I am concerned that he will close out my father’s accounts and sell his house and keep all the money even though I am named as a half beneficiary under the will. He seems to be under the impression that since he is the named executor, he can do these things simply by presenting the will.

QUESTION: Is that true?

THE ANSWER: Absolutely not! Although your brother is named in your father’s will as the executor of his estate, the surrogate’s court in the county in which your father resided at the time of his death must admit the will to probate and issue letters testamentary to your brother before he can take any action with respect to your father’s assets.

In other words, he must establish to the court’s satisfaction that the will is valid before he is able to act as executor. He cannot assume the responsibilities of executor without the court’s explicit approval. The complexity, cost and time involved in having a will admitted to probate will vary with the number of beneficiaries named in the will, as well as the number of heirs to the estate, the ease with which the attorney assisting the named executor can locate the beneficiaries and heirs, how cooperative those people may be with the attorney in moving forward, the value of the estate and whether anyone contests the admission of the will to probate, among other factors.

While the probate process can be straightforward and relatively inexpensive, there are numerous issues that can arise in the probate process that are best handled by an experienced estate attorney. Some of the most common issues with probate are not being able to locate individuals who are entitled to notice and dealing with individuals who contest the validity of the will. Fortunately, the percentage of cases where a will is contested and ultimately not admitted to probate is small. However, if there are objections filed to the probate of a will, the probate process can drag on for quite some time, significantly increasing the expenses of the estate.

If you and your brother are the only beneficiaries named in the will and your father’s only children, and you do not have a basis for contesting the will, the probate process should be relatively straightforward. Once the court issues letters testamentary to your brother, he can sell the house and close your father’s bank accounts. However, he cannot simply keep the money for himself since he has a legal obligation to carry out the wishes set forth in your father’s will.

In your case, he would be required to distribute to you assets valued at half of the value of the estate after accounting for your father’s legitimate debts, funeral and estate administration expenses, commissions and estate taxes. If you suspect that he has not done so, you should demand that he account for all of the estate assets so you can see the value of the marshaled assets and the expenses incurred by the estate. If you are not satisfied with the accounting he provides, or have reason to believe that he breached his fiduciary duty to you as a beneficiary, you can ask that his letters testamentary be revoked.

Since this process can get quite involved, if it comes to that, you should seek the advice of an attorney with expertise in the areas of estate administration and litigation.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate and estate administration, real estate, small business service and litigation from her East Setauket office.

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