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Nancy Burner

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By Leah S. Dunaief

Leah Dunaief

Maybe it sounds like I’m tooting our horn too much, but I have to say how proud I am of the columnists who write for our papers and website. They are clearly bright and offer the reader information and knowledge that aren’t usually found even in a big metro daily or a glossy magazine. They are, collectively and individually, one of the main reasons our hometown newspapers have managed to survive while so many of our colleagues, 25% of them in the nation, have had to shut their doors.

Readers want to learn from our regular columnists, who, by the way, are local residents. That’s not surprising, though, because the population we serve is exceptional, accomplished in their own right, and can be expected to harbor such talent. Let me explain.

The columnists are found in the second section of the newspaper, called Arts & Lifestyles. In the interest of full disclosure and without false modesty, I point out and salute my youngest son, Dr. David Dunaief. He is a physician totally committed to helping his patients, and the high regard is returned by them in equal measure, as testimonials about him confirm. In addition, he writes every week about current medical problems and brings readers up to date with the latest research and thinking regarding common ailments. I know him to be a voracious reader of medical journals and he footnotes his sources of expertise at the end of every “Medical Compass” column. 

Dr. Matthew Kearns is a longtime popular veterinarian who writes “Ask the Vet,” keeping our beloved pets healthy. Michael E. Russell is a successful, retired financial professional who cannot cut the cord with Wall Street, and  shares his thoughts on the economy and suggesting current buys on the stock market. He will also throw in something irreverent, or even askance, to keep you tuned in. 

Also writing knowledgeably on the contemporary scene about finance and the economy is Michael Christodoulou, who is also an active financial advisor. Ever try to read your auto insurance policies? If I had trouble falling asleep, they would knock me out by the second paragraph. Enter A. Craig Purcell, a partner in a long-established local law firm, who is attempting to explain auto insurance coverage, a merciful endeavor, with his column. His words do not put me to sleep. Shannon Malone will alternate the writing for us. Michael Ardolino, a well-known realtor, somehow manages to make both ends of a real estate transaction, for buyers and sellers, sound promising at this time. 

Our lead movie and book reviewer is the highly talented Jeffrey Sanzel. In addition to being a terrific actor, he is a gifted writer and almost always feels the same way about what he is reviewing as I do. No wonder I think he is brilliant.  Father Frank has been writing for the papers for many years and always with great integrity and compassion. 

John Turner, famous naturalist and noted author and lecturer, keeps us apprised of challenges to nature. This is a niche for all residents near the shorelines of Long Island. He also writes “Living Lightly,” about being a responsible earth dweller. Bob Lipinski is the wine connoisseur who travels the world and keeps us aware of best wines and cheeses.

Lisa Scott and Nancy Marr of the Suffolk County League of Women Voters, keep us informed about upcoming elections, new laws and important propositions. Elder law attorney Nancy Burner tells us about Medicare, estate planning, wills gifting, trustees, trusts and other critical issues as we age.

The last columnist I will mention is Daniel Dunaief, who, like bookends for my salute, is also my son. Among several other articles, he writes “The Power of Three,” explaining some of the research that is performed at Stony Brook University, Brookhaven National Labs and Cold Spring Harbor Laboratory. He makes a deep dive into the science in such a way that layman readers can understand what is happening in the labs. He has been paid the ultimate compliment by the scientists for a journalist: they pick up the phone and willingly talk to him, unafraid that he will get the story wrong or misquote them. In fact, he has been told a rewarding number of times by the researchers that his questions for the articles have helped them further direct their work.

When my sons began writing for TBR News Media, a few readers accused me of nepotism. I haven’t heard that charge now in years.

P.S. Of course, we can’t forget Beverly C. Tyler and Kenneth Brady, stellar historians both.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

As we enter a new year, it’s important that there is an understanding of the updated estate and gift taxes on both the federal and state level. 

The Tax Cuts and Jobs Act (the “Act”) increased the federal estate tax exclusion amount for decedents dying in years 2018 to 2025. The exclusion amount is for 2022 is $12.06 million. This means that an individual can leave $12.06 million, and a married couple can leave $24.12 million dollars to their heirs or beneficiaries without paying any federal estate tax. This also means that an individual or married couple can gift this same amount during their lifetime and not incur a federal gift tax. The rate for the federal estate and gift tax remains at 40 percent.

There are no 2022 changes to the rules regarding step-up basis at death. That means that when you die, your heirs’ cost basis in the assets you leave them are reset to the value at your date of death. 

The Portability Election, which allows a surviving spouse to use his or her deceased spouse’s unused federal estate and gift tax exemption, is unchanged for 2022. This means a married couple can use the full $24.12 million exemption before any federal estate tax would be owed. To make a portability election, a federal estate tax return must be timely filed by the executor of the deceased spouse’s estate. 

For 2022 the annual gift tax exclusion has increased to $16,000. This means that an individual can give away $16,000 to any person in a calendar year ($32,000 for a married couple) without having to file a federal gift tax return. 

Despite the large Federal Estate Tax exclusion amount, New York State’s estate tax exemption for 2021 is $5.93 million. As of the date of this article, the exact exclusion amount for 2022 has not been released. It is anticipated to be a little over $6 million in 2022. New York State still does not recognize portability.

New York has a three-year lookback on gifts as of January 16, 2019. However, a gift is not includable if it was made by a resident or nonresident and the gift consists of real or tangible property located outside of New York State; while the decedent was a nonresident; before April 1, 2014; between January 1, 2019, and January 15, 2019.

 Most taxpayers will never pay a federal or New York State estate tax. However, there are many reasons to engage in estate planning. Those reasons include long term care planning, tax basis planning and planning to protect your beneficiaries once they inherit the wealth. 

In addition, since New York State has a separate estate tax regime with a significantly lower exclusion than that of the Federal regime it is still critical to do estate tax planning if you and/or your spouse have an estate that is potentially taxable under the New York State law. 

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

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LIVE WEBINAR: Burner Law Group, P.C. presents a free webinar titled 2022: The Year of Trusts on Thursday, Jan. 20 at 2:30 p.m. Attorney Britt Burner will discuss the anatomy of trusts, the types of trusts used in Estate and Medicaid planning and how they can benefit you and your loved ones. To RSVP, call 631-941-3434 or email [email protected].

 

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Whether your trust requires its own EIN depends on the type of trust that you have. An Employer Identification Number (“EIN”) is a nine-digit number that the Internal Revenue Service (“IRS”) assigns to identify an entity for tax reporting purposes. An EIN, also known as a federal tax ID number, functions like a social security number.

Generally, revocable trusts do not need an EIN as they are grantor trusts and the trust’s income is reported on the tax return of the trust creator. If you have created a revocable trust, you may revoke the trust at any time and “regain” possession of the trust assets. Accordingly, a revocable trust is an extension of the grantor who created the trust. The grantor pays the income taxes generated by the revocable trust and uses the social security number of its grantor as its tax ID. Couples with a joint revocable trust both hold the power to revoke the trust, either person’s social security number can be used. A separate tax ID is necessary if they do not file taxes jointly.

A revocable trust becomes irrevocable at the grantor’s death. At that time, the trust requires an EIN, as the trust can no longer be associated with the deceased grantor’s social security number. The trust must file its own taxes.

Some lifetime irrevocable trusts are also grantor trusts and therefore taxed to the grantor just like a revocable trust. While it is not required for these trusts to maintain a separate tax ID, it is sometimes a good idea to assign same. We usually assign a federal tax ID when we do Medicaid Asset Protection Trusts. If an irrevocable trust is not classified as a grantor trust, an EIN is required as the trust is considered a “separate entity” from the grantor.

If your trust requires an EIN, an application is submitted to the IRS as soon as possible. The application contains information from the grantor and the trust to answer a series of questions for the IRS. A trustee can either apply online, or mail/fax IRS Form SS-4. If a trustee applies online, the EIN is available in a matter of minutes. If the application is completed by fax or mail, it may take a few weeks to receive the EIN.

Discuss any questions relating to the need of a separate tax ID for your trust with an experienced estate planning attorney or tax advisor. Since the income tax rate for a trust is usually so much higher than that for an individual, the question of how your trust is taxed is an crucial consideration when considering trusts.

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

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By Nancy Burner, Esq.

Nancy Burner, Esq.

A “closing” in legal lingo is the final step in a real estate transaction. A real estate closing is when the purchaser obtains title to the property, evidenced by a deed from the seller to the purchaser or stock in a cooperative apartment.

Simultaneously, the seller obtains the net proceeds from the sale. This event is usually attended by the seller, purchaser, their respective attorneys, the title closer, the bank attorney (if the purchaser has obtained financing) and the real estate agents.

In our post-COVID world, closings have looked a little different with closings occurring by mail, with parties pre-signing documents and agents not attending closings.

What an attorney does during the closing depends on which party he or she represents. Ideally, all of the complications have been worked out before the parties get to the closing table, although occasionally an issue will arise during the final walk-thru of the property that will need to be addressed.

If there is a bank attorney, he or she is required to have all of the numbers ahead of time so that they can complete the closing disclosure that will provide a detailed itemization of all fees to be paid at the closing and an exact number that the borrower/purchaser will be paying and the seller will be receiving.

The bank attorney provides the documentation required by the bank to be signed by the borrower/purchaser and provides funding only when the title company provides a loan policy to the lender.

The seller’s attorney is responsible for preparing the deed and governmental transfer documents which will be signed at the closing by the parties and for obtaining any payoffs and appropriate checks to pay the liens or judgments that may have been presented in the title report against the property or the seller. The seller’s attorney will typically ask for bank checks for these items to be provided by the purchaser which will be deducted from the total proceeds owed.

The title closer will make sure that any mortgage, judgments or liens are paid off and that any new mortgage will be recorded along with the deed. The purchaser will leave with only a copy of the deed as it will be recorded by the title closer in the county clerk’s office once the closing has concluded.

The title company insures the purchaser as to the ownership and also the lender that their mortgage has priority and is valid. Once the title closer is satisfied with the documentation and has provided the title policies, the closing is officially concluded and the purchaser will be provided with the keys and the seller will receive the checks.

The purchaser’s attorney is responsible for having the purchaser bring the correct checks to the table, explain the lender’s documents, and ensure that the title company is insuring the purchaser’s title to the property.

As you can see, there are sometimes three attorneys present at a residential closing, each with different roles. The main role for any attorney you retain is to protect your interests — whether you are the buyer, seller or the bank.

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

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By Nancy Burner, Esq.

In New York State, any individual over the age of 18 may designate an individual to make medical decisions on his/her behalf by signing a health care proxy and designating a health care agent.  

The health care agent is only authorized to act if your doctors determine you can no longer make your own medical decisions. By signing this document and designating an agent, you avoid any confusion or issues when it comes time for your family to make a medical decision on your behalf as your family and the doctors already know who you want to make those decisions. 

A valid health care proxy will allow your health care agent to make medical decisions for you if you cannot with any health care professional, not only decisions while you are in a hospital or nursing home.   

Additionally, when signing a health care proxy, it is also very important to sign a second document, called a living will, which states your preferences as they relate to life-sustaining treatment (medical treatments/procedures that, if not provided, will result in the patient’s death). Examples of life-sustaining treatments include cardiac pulmonary resuscitation (CPR), a feeding tube and ventilator.    

A living will is important because, although your health care agent can make most medical decisions on your behalf, a health care agent must know your wishes as they relate to life-sustaining treatment in order to make those specific decisions on your behalf. A correctly executed living will is “proof positive” of your wishes as they relate to life-sustaining treatment and cannot be questioned by other family members who may disagree. 

If you do not have a health care proxy and are admitted to a hospital or nursing home, the Family Health Care Decisions Act enacted by New York State will determine who can make medical decisions on your behalf. This act provides a hierarchical list of people who may make your medical decisions if your doctors determine that you lack the capacity to make your own medical decisions.   

The list is: court-appointed guardian, spouse/domestic partner, a child who is over 18 years old, a parent, a sibling or a close friend. The issue many people may encounter is that most people have more than one child who can act as the person who will make their health care decisions. In this situation, the doctors would have to specify one of the children to make the decisions, which can cause tension and disagreement among the children. Further, the Family Health Care Decisions Act is only applicable to decisions while a patient is in the hospital or a nursing home. Once a patient is discharged, the person designated to make the medical decisions no longer has authority to do so.  

In order to be certain the person you want is empowered to make your medical decisions, a health care proxy is the preferable option. It is also wise to sign a living will so your health care agent knows your specific wishes as they relate to life-sustaining treatment. It is best to consult with an estate planning attorney who can advise you on all your options and ensure your documents are valid.

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

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By Nancy Burner, Esq.

Nancy Burner, Esq.

The best way to manage your own affairs while you are alive and to provide properly for your beneficiaries at your death is to have an estate plan. There is a distinction between having a “plan” and having documents. The close attention to detail, knowledge of the law and past experiences of the attorney you are dealing with should help you create the plan that fits your own circumstances.

The first step of the process is to gather a comprehensive list of your assets. Since everything in the plan is different depending on the personal circumstances, it is important for the attorney advising you to know what type of assets you have and in what quantity. An individual with a home worth $400,000 may require a very different plan than an individual with the same amount of assets that are held in cash or retirement accounts. 

Once you have your list of assets together, you can review it with the attorney and discuss the goals of the representation. For many clients, the primary goal is to make sure they are taken care of during their own lifetime with the maximum amount of control over their assets without concern for what happens upon their death, while others may have concern for those they wish to benefit at their death.  

Take the single mother with a disabled child; while she is concerned about her own well-being, she would likely consider the well-being of her child to be equally as important. By contrast, a single person with no children will have different concerns and, therefore, a different estate plan. 

Discussing your goals with an attorney is the greatest value the attorney can provide. Estate planning attorneys are more than just document drafters. They are advisers. With your attorney, you should be running through the different scenarios that may occur at the time of your death and making sure that you are satisfied with the outcome of each based on the plan you decide to create. 

The estate planning attorney can flag for you other issues that may be of concern. Depending on your age, income and assets, it may be prudent to discuss long-term care insurance or asset protection planning for Medicaid purposes. You can discuss whether or not your beneficiaries will need a trust for any reason, including creditor protection, protection of government benefits or protection from themselves if they overspend and undersave. 

After you have discussed your assets and goals with the attorney, they can recommend options for you. Often, there is more than one option available. A description of the pros and cons of each plan and the cost to you should help you determine what is best in your circumstance. This is the point at which the documents can be created in draft form. If you are satisfied with the documents as written, they will then be signed with the attorney. Each document will have its own signing requirements for validity that will include the presence of witnesses and/or a notary public.  

If you have never created an estate plan or have not reviewed it in the last five years, you should reach out to an attorney to start the process.  

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

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Concerns about accessing long-term care in the community is something we often discuss with our clients. How will they access the care? Who will pay for it? Is the care reliable? Can I safely and affordably age in place? 

The positive news is that there are many options for care in the community. We are fortunate to live in an area where care is accessible, reliable and affordable. Many of our clients are surprised to learn that Community Medicaid is a way to access care in the community. 

Unlike Chronic Medicaid, which requires a five-year financial look back as a prerequisite for eligibility, Community Medicaid does not have any look back. This means that with some relatively simple planning (in most cases) the financial eligibility requirements can be met with little to no waiting time.

It is important to note there are strict asset and income limitations for applicants for Community Medicaid. An applicant is permitted to have $15,150 in liquid nonretirement assets in his or her name (in New York for 2018). They can have an unlimited amount of qualified (retirement) accounts in their names so long as they are taking the required distribution as set out by the local Medicaid program. 

The primary residence is also an exempt resource, provided the Medicaid recipient remains in the home. It is advisable for all Medicaid recipients to do some estate planning with their home to ensure that it will remain protected should a need arise for care in a facility. Additionally, such planning can ensure that the home is protected from potential estate recovery after the death of the applicant. The applicant is also permitted to have an irrevocable prepaid prearranged funeral account.

With respect to income a single Medicaid applicant is permitted to retain $862 in monthly income. Any income amount over this allowance is considered “excess income.” The good news is that all of the Medicaid applicant’s excess income can be redirected into a pooled income trust, which is a type of special needs trust established and managed by nonprofit organizations for the benefit of disabled beneficiaries. The excess income transferred into a pooled trust can be used to pay the Medicaid applicant’s monthly household and personal expenses.

As you can see, with some relatively straightforward planning most people can qualify for Community Medicaid benefits. Once you have applied and been accepted under the Community Medicaid program, you can access a variety of services that will help you to remain in the community. 

For most of our clients the greatest benefit is the availability of a care provider who can come into their home and provide assistance with activities of daily living such as dressing, bathing, light housekeeping and meal preparation. 

Community Medicaid will also cover the cost of certain approved assisted living facilities and some adult day care programs. The availability and accessibility of care in the community is oftentimes far more available than most of our clients think. 

The community-based Medicaid program is invaluable for many seniors who wish to age at home but are unable to do so without some level of care and certain supplies the cost of which would be otherwise too expensive to sustain on their own. With some careful planning aging in place is certainly a viable option for most clients we meet.

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

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Accountings are part of the administration of an estate, regardless of whether the decedent died with a will or intestate.

By Nancy Burner, ESQ.

Nancy Burner, Esq.

There are many steps and layers associated with the administration of an estate. Ultimately, for most estates, the goal is to distribute the assets to the respective beneficiaries named in the decedent’s will or are intestate heirs pursuant to the laws of intestacy. As part of this administration process, and prior to making any final distributions, the beneficiaries of the estate are entitled to receive and review an accounting prepared and provided by the fiduciary for the estate.

One of the fiduciary duties the executor or administrator is tasked with is to marshal the assets of the estate. The administrator reports to the beneficiary the assets of the estate; the income collected during the pendency of the administration; the expenses, debts and claims that were paid on behalf of the estate; and the amount and value of funds that ultimately remain on hand to be distributed to the beneficiaries.

The function of the accounting is to provide a clear and concise review, in proper reportable form, of all of the estate receipts and expenditures of the estate so that the beneficiary fully understands exactly why he or she is receiving a certain sum of money. As discussed above, once the accounting is approved, the ultimate distribution is made in accordance with the terms of the probated will or as provided by the laws of intestacy.

Once provided with the accounting from the fiduciary, the beneficiaries of the estate generally have questions regarding the transactions of the fiduciary. It is important that the fiduciary respond and address any concerns the beneficiary may have regarding the administration of the estate.

After explanation and substantive discussions, most accountings are approved by the beneficiaries and the estate fiduciary can proceed to the next and likely final step of making final distributions.

Conversely, beneficiaries also have the legal right to object to the accounting provided by the fiduciary. Once this occurs, there are provisions in the Surrogate’s Court Procedure Act (SCPA) and other statutes that provide a means by which the beneficiaries can investigate any questions they have about the administration of the estate.

Specifically, SCPA 2211 entitled, “Voluntary account; proceedings thereupon” allows a party to take oral testimony of a fiduciary to examine all of the papers relating to the accounting. These papers include, but are not limited to, bank statements, brokerage statements, deeds, tax returns, financial records, bills and receipts. Following the completion of the SCPA 2211 examination, a decision can then be made by the beneficiaries as to whether to file formal objections to the accounting.

The Surrogate’s Court in New York generally encourages interested parties to resolve their disputes, including any accounting contests, without extensive court intervention, proceedings or a trial as these proceedings can be costly and time consuming.

Accountings are part of the administration of an estate, regardless of whether the decedent died with a will or intestate. Accordingly, whether you are the fiduciary or a beneficiary, it is important to consult with an experienced estate administration attorney to assist and guide you through the accounting process.

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

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There are many benefits to naming a minor as beneficiary of a tax-deffered retirement account.

By Nancy Burner, ESQ.

Nancy Burner, Esq.

Many of our clients have retirement assets held in a traditional IRA, 401K, 403(b) or other similar plan. It is important to periodically review the beneficiary designations on these types of plans. A review should confirm that the institution still has the proper designations on file, the clients’ wishes are being followed, the designations fit into the larger estate plan of the client and that the best interests of the beneficiaries are taken into account. This is of special concern if the beneficiaries are grandchildren or other minors.

There are certain benefits to leaving retirement assets to a minor who is a much younger beneficiary than the original account holder. When you leave retirement assets to a nonspouse, the beneficiary has the right to take it in an “inherited IRA.”

The beneficiary of an inherited IRA must start taking distributions the year after the death of the original account holder. These distributions are taken as a “stretch,” meaning they are determined by the life expectancy of the new IRA beneficiary. In that case, the account can grow tax deferred over a much longer life expectancy.

The rule of thumb is that the account will be worth approximately 30 times its value if distributions are taken over the life expectancy of a grandchild. For example, suppose you name your grandchild as beneficiary of an IRA account with a $100,000 balance. If your grandchild takes distributions based upon her life expectancy each year, then the account could be worth $3,000,000 over her lifetime. This is one of the great benefits of naming a minor as beneficiary of a tax-deferred retirement account.

The problem is that you cannot achieve the benefit of the stretch if you name a minor directly as the beneficiary of any account — you must name a trust for the benefit of the minor.

Since she is not an adult, the minor will be unable to take the distributions as required beginning the year after your death. The only way to access the account is for the court to appoint a guardian for the property of the child, usually the parent. First, this will be a costly and unnecessary proceeding. But the result is even worse.

The court will direct the guardian to distribute the entire IRA and pay the income tax. The income tax will be based upon the parents’ income if the child is under 14 years of age, also known as the “kiddie tax.”

In addition, the monies that are left after paying the income tax will be deposited in a bank account earning very little interest. If that isn’t bad enough, the account will be turned over to the child upon attaining the age of 18. This will obviously impact the child’s financial aid when he or she applies for college. This is a financial disaster. In addition to retirement accounts, you do not want to name minors directly as beneficiaries on IRA accounts, annuities, insurance policies, bank accounts or any other account. Any and all distributions for a minor should be distributed to a trust that is drafted for the benefit of the child.

The trust should be created as part of the estate plan, either through a last will and testament or in an inter vivos trust. Providing for the beneficiary’s share to go into a trust will ensure the benefits of inheriting a retirement asset are received.

The beneficiary can get the stretch on the account and the asset will not need to be held by the court. However, be certain that the trust you are naming for the benefit of the minor is drafted for the purpose of receiving retirement accounts; all trusts are not created equal in this respect. A trust must be properly drafted and meet certain requirements set by the IRS in order to accept the IRA distribution and receive the benefits described above.

Before naming a beneficiary on an account, one should check with the institution holding the account. Each plan has its own individual rules regarding the designation of beneficiaries. For example, the New York State Teacher’s Retirement system has certain benefits for which you can name a trust as beneficiary, while other benefits, including pensions, do not allow this type of beneficiary. Retirement savings can be the largest asset one leaves behind. Being sure it is properly designated can protect the best interests of your beneficiaries long after you are gone.

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

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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.

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