Authors Posts by Nancy Burner Esq., CELA

Nancy Burner Esq., CELA


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By Nancy Burner, Esq.

Nancy Burner, Esq.

There is a common misconception about estate taxes when a decedent dies. At the outset it is important to know that the New York State exemption in 2024 is $6,940,000. The federal exemption for 2024 is $13,610,000. Therefore, if your estate is under these amounts, then there is no tax due. Often clients are anxious to make annual gifts with the mistaken belief that their heirs will pay a tax at their death. First, any amounts to spouses are tax free. Any amount under the above thresholds is also tax free. Nevertheless, for estates over the exemption amounts, either the New York or federal, additional planning is necessary. The balance of this article is for estates that exceed these threshold amounts.

But before we consider those taxes, let’s be clear about what comprises your taxable estate. All assets that you own at your death are counted towards your taxable estate, including IRA’s, annuities, bank accounts, real estate, life insurance owned by you or for which you have the power to change the beneficiary.

In New York, estates valued below this threshold amount ($6.94 million) will not incur any tax. For any estate that is over the threshold by no more than 5%, the estate is only taxed on the overage. However, for any estate valued at more than 5% over the threshold amount, ($7.287 million) the entire estate is taxed and there is no exemption available.

To illustrate: For decedents dying in 2024, consider an estate valued at $6.0 million. This is under the threshold amount and no tax is due. For an estate valued at $7.1 million, which is $160,000 over the threshold amount, there will be a tax for the $160,000 overage, to wit: the taxable estate is $397,444. However, for an estate valued at $7.3 million ($13,000 over the 5%), the value of the estate is above the threshold by more than 5% and the estate tax rises sharply, to wit: the taxable estate is $678,000. This commonly known as the “cliff.”

Estate tax planning for NY residents is often focused on keeping assets under this

cliff. There are several techniques that can be used to avoid the cliff. For instance, each individual can make tax free annual gifts in the sum of $18,000 per person in 2024. Annual gifts can be utilized during lifetime to bring the value of an estate under the cliff, and maybe even under the threshold.

However, in an instance where the decedent dies and the estate is over the threshold, we often use a provision in the Will or Trust to reduce the taxable estate with gifts to charities. This is a savings provision that provides for a charity to receive any amounts disclaimed by the beneficiaries. By adding that type of clause, the beneficiaries have up to 9 months after the decedent’s death to file a qualified disclaimer, renouncing any such overage and having the disclaimed amount pass to the named charity. The beneficiaries can disclaim any amount necessary to bring the estate under the threshold and reduce the estate tax to zero.

Another technique is to make a large gift more than 3 years prior to death. Since New York State does not have a gift tax, only an estate tax, this works quite well. Take the example of an individual with $8.94 million in assets, which is $2.0 million over then threshold. If she transfers the $2.0 million to her heirs directly or to a properly drawn trust for heirs, and survives the gift by three years, then she still has a full New York State exemption. The lifetime gift is essentially transferred estate tax free. If she dies before the three years, the gift will come back into the estate for the purposes of calculating the estate tax.

This same technique would not work for federal estate tax purposes, because any lifetime gift over the annual gift amount does reduce the lifetime applicable credit. This year the applicable credit amount is $13.61 million. This amount is indexed for inflation and will increase again in 2025. However, in 2026 the credit amount will be reduced as the law that created it will “sunset”. Most experts believe the federal exemption will be approximately $6.5-$7.0 million as of January 1, 2026. For clients with estates over that amount, it is necessary to plan early and reduce their taxable estates before the federal applicable credit is reduced. This is usually done with sophisticated trust planning which moves assets “over the tax fence” and uses the credit before they lose it.

Nancy Burner, Esq. is the Founding Partner of Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Establishing a clear and thorough estate plan is essential for artists to maintain control over their artwork and preserve their legacy. An artist’s estate not only includes physical art, but a bundle of intellectual property rights, including copyrights. Additionally many artists have art collections that include others artists’ works as well as their own. The artist’s own art work is generally treated differently than their art collection, but both can be hard to value at death.

Generally speaking, at death one can dispose of these assets either through a Last Will and Testament or a Living Trust. With either document, an artist can specify not only who is to inherit a particular work of art, such as a family member or art gallery, but how the artwork is to be managed. For example, the artist can specify the proper storage and handling, appraisal, and insurance for the art work. Professional art appraisers and dealers can be hired to find buyers or exhibit the art to a wider audience. If doing so, it is important to set aside some estate assets to pay for the upkeep and handling of the art. If the Executor or Trustee is left to handle the art without any monetary resources, the plan will not work.

The main difference between a Will and a Trust is that a Will must be validated through Surrogates Court in a probate proceeding. Probate takes several months, sometimes years, for the nominated Executor to be officially appointed and imbued with the authority to collect the decedent’s assets, pay off any debts, and distribute the property to the beneficiaries according to the terms of the Will. 

A Living Trust, in contrast, is a separate legal entity created during one’s life to avoid the probate process. Provided the art work and intellectual property are transferred into the trust during life, the trust assets will pass free from court interference at death, avoiding the costs and delay of probate.

Avoiding probate is often appealing for artists because artwork and copyrights are particularly difficult to categorize and value in a probate petition. In addition, using a trust ensures privacy whereas a Will becomes public information when it goes through the courts. 

Further, a trust created during life can have provisions regarding incapacity, ensuring that precious pieces of art are properly cared for by the successor trustee in the event the artist can no longer maintain the works. Finally, some pieces of art cannot sit for the years it may take to go through the probate process.

The main advantage of a Living Trust is that it is not subject to continuing court oversight. If someone creates a trust for their art in their Will, any changes must go through the courts. For example, any change to the trustee would require court approval. Not so if the art trust was created in a Living Trust. A Living Trust can allow the beneficiaries to remove and replace a trustee without court interference. This is particularly important in artist estates where the Trustee is a professional instead of a family member. Many famous artist’s estate were mishandled by so-called trusted advisors. Avoiding the costs of litigation is reason enough to create a trust for artwork – especially if the artist is well- known.

An experienced estate planning attorney can help create an effective strategy for the artwork in your estate, ensuring your collection ends up in the right hands after death. Artwork can simply pass outright to beneficiaries if there is no substantial resale market. But, if the artist had established sales throughout their life, creating a trust or foundation at death to hold the art is the better route. As with any estate, the goal is to minimize in- fighting. Since art is so personal and cannot be easily divided, it is even more important to bequeath your works of art in a way that does not cause conflict.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner Esq.

Nancy Burner, Esq.

A Durable Power of Attorney is a statutory form that enables the principal (the creator of the power of attorney) to empower a trusted individual, as acting agent, to manage the finances and property during the principal’s lifetime. Having a Durable Power of Attorney in place is incredibly important, especially later in life if the principal lacks legal capacity. Even if incapacitated, the appointed agent will still be able to use the document to access bank accounts, sign checks, pay bills, and carry out any essential estate planning.

Durable Powers of Attorney in New York are governed by Title 15 of New York General Obligations Law. The statute enumerates several categories of powers that may be granted to an agent: (A) real estate transactions, (B) chattel and goods transactions, (C) bond, share, and commodity transactions, (D) banking transactions, (E) business operating transactions, (F) insurance transactions, (G) estate transactions, (H) claims and litigation, (I) personal and family maintenance, (J) government benefits, (K) financial matters related to health care, (L) retirement benefits, (M) tax matters, and (N) all other matters.

These transactions are further defined in GOL Sections 5-1502A through 5-1502N (and thus aren’t spelled out in the Power of Attorney form itself), but certain powers relating to these various transactions are limited unless expressly stated otherwise in the “Modifications” section of the form. For example, Section 5-1502D provides that the authority over “banking transactions” allows the agent to modify, terminate and make deposits to and withdrawals from any deposit account, but with respect to joint accounts, the agent cannot add a new joint owner or delete a joint owner unless such authority is expressly granted. 

In addition, as to insurance transactions, Section 5-1502F provides that the agent may not change the beneficiary designations unless the Durable Power of Attorney specifically states otherwise, and under Section 5-1502L an agent similarly cannot change the designation of beneficiaries of any retirement accounts unless this authority is expressly granted. Further, Section 5-1502K gives the agent authority over health care financial matters, benefit entitlements, and payment obligations, but this authority does not include the authority to make health care decisions for the principal — this authority can only be granted by a valid Health Care Proxy.

GOL Section 5-1513 sets forth particular requirements regarding the authority of an agent over gifting transactions. If the principal grants the agent authority relating to personal and family maintenance (Section (I) of the form mentioned above), the agent may make gifts that the principal customarily made to individuals, including the agent, and charitable organizations, not exceeding $5,000 in any one calendar year. In order to authorize the agent to make gifts in excess of the $5,000 annual limit, the principal must expressly grant that authorization in a separate Modifications section, including whether the agent has the authority to make gifts to himself or herself. 

While gifting is a significant power that should not be given lightly, it can be critically important in certain situations, such as Medicaid planning, where assets need to be transferred out of the principal’s name in order to meet the eligibility requirements. In order to qualify for Medicaid coverage for homecare or nursing home care in New York in 2024, an individual applicant cannot have more than $30,182 in assets. And if the applicant lacks the capacity to make the necessary asset transfers, without a Durable Power of Attorney with gifting authority, the only alternative would be for a legal guardian to be appointed by the court which is costly and time- consuming.

An experienced estate planning attorney can help explain the advantages of having a Durable Power of Attorney and prepare certain important modifications to the statutory form to better accomplish your estate planning objectives.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

For the charitably inclined, there is always a question of how to be most efficiently leave money to charities in your estate plan. Charitable giving ranges from simple small monetary amounts to more complicated charitable trusts. No matter the option, there are potential income tax and estate tax implications to consider.

Leaving a specific bequest in your ill or Trust is one common type of charitable gift. You leave a set amount to a charity of your choosing at the time of your death. For those that want to cap the amount that given to charity, this is a good option. These specific bequests are paid out first, off the top of the estate. Thus, if you only have $100,000 in your estate and leave specific bequests totaling $100,000, there will not be any assets left to the residuary beneficiaries. Usually, the residuary portion of an estate is the largest. But not always and especially not if you do not correctly allocate your assets.

Residuary beneficiaries are those that receive a percentage or fractional distribution of the “rest, residue, and remainder” of your estate. Take the example above, if your total estate assets equal $300,000, then after the $100,000 charitable bequests, your residuary beneficiaries receive the remaining $200,000. A charity can also be one of your residuary beneficiaries, in which case the charity would receive a fractional share of your choosing. 

In certain circumstances, it is beneficial to include a “disclaimer to charity.” You would add a provision in your Will or Trust directing that any “disclaimed” amount of your estate goes to charity. This is done for estate tax planning purposes. If your estate is more than 105% over the New York State estate tax exemption amount ($6.11 million in 2022), you then “fall off the cliff.” This means that your estate will receive no exemption and the entire estate taxed from dollar one. However, if your Will or Trust has a disclaimer provision, any amount that a beneficiary rejects goes to the charities that you listed.  That gift to charity serves to reduce your taxable estate, moving it back under “the cliff” and saving a great deal in taxes. This is an especially useful tactic for those with estates that are on the cusp of the exemption amount.

Another method of charitable giving is gifting tax-deferred retirement assets. While you are still living, you can gift from your retirement account up to $100,000 per year as a qualified charitable distribution. Making the gift directly to the charity removes the required minimum distribution from your taxable income. There are some pitfalls to avoid.  Not all plans qualify for this type of distribution, not all charities are considered “qualified,” you cannot receive a benefit in exchange for the distribution (ex. a ticket to a charity concert), and you must gift the funds directly from the retirement account to the charity.

In addition to charitable gifting from a retirement account during your lifetime, you can list charities as  after-death beneficiaries of your accounts. If you have a mixture of individuals and charities as beneficiaries, you may want to leave the retirement assets to the charities. This saves your individual beneficiaries from paying income tax on distributions. Especially in light of the SECURE Act, which requires that most beneficiaries of retirement account withdraw all the funds within ten years. The income tax consequences for such beneficiaries may be steep if there is a large retirement account. 

While there are several charitable giving options, each person will need to navigate a solution that suits them best. An experienced estate planning attorney will take into account the size of the estate, potential tax liabilities, how much you want to leave to charity, and your other beneficiaries. With proper planning, you can ensure your gifts go as far as possible to benefit the charities that you hold dear.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

By Nancy Burner, Esq.

Nancy Burner, Esq.

Community Medicaid is the program that covers care at home, such as a personal care aide. Chronic Medicaid is the program that covers nursing home care.

The requirements and application process for Community and Chronic Medicaid are very different. An applicant’s marital status implicates a different set of rules. It is important to know the differences and make sure you have the correct Medicaid in effect.

For 2023, an individual applying for Community Medicaid can have no more than $30,182 in assets, excluding the home if the equity is less than $1,033,000. Qualified funds such as IRAs or 401(K)s are exempt, so long as the applicant is taking minimum distributions, and which are counted towards the monthly income allowance. The applicant’s income cannot exceed $1,677 per month — but there are ways to capture the income using a Pooled Income Trust. 

While these limitations may seem daunting, the good news about Community Medicaid is that there currently is no look-back period. No look-back means someone looking to get care at home can transfer assets out of their name and be eligible the following month.

It is important to keep in mind, however, that in April of 2020 New York State passed a law introducing a 30-month look-back period for Community Medicaid. The look-back period was originally set to take effect in October 2020, but was delayed. The New York State Department of Health recently announced that the earliest the 30-month look-back period will be implemented, if ever, is mid to late 2025.

To qualify for Chronic Medicaid in 2023 an individual applicant can have no more than $30,182 in assets, and no more than $50.00 per month in income. There is no pooled trust option to protect excess income, so any income exceeding $50 per month will go towards the cost of the nursing home care. Like Community Medicaid, qualified funds such as IRAs or 401(K)s are exempt if the applicant is required to take minimum distributions. The home is not an exempt resource unless a spouse, disabled or minor child is living there.

Chronic Medicaid has a five-year look-back period. This refers to the period of time that the Department of Social Services will review your financials to determine if you made any transfers. To the extent that the applicant has made transfers or has too many assets in their name to qualify, they will be ineligible for Medicaid. However, there are exempt transfers that the applicant can make which will not render them ineligible:

— A spouse;

— A child under the age of 21;

— A blind or disabled child;

— A sibling who has an “equity interest” in the home and who has lived in the home for at least a year before the Medicaid application is filed; or

— A “caretaker” child who has lived in the parent’s home for at least two years before the Medicaid application is filed.

Due to the complexities of eligibility for Community and Chronic Medicaid, it is imperative to consult with an expert attorney in the field.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

A Descendants Trust (commonly referred to as an Inheritor’s Trust) is a trust that is created under a person’s living trust or last will and testament that only comes into effect upon the death of the creator (“Grantor” in the case of a trust or “Testator” if a will). When a person leaves an inheritance for a beneficiary, he/she can choose to leave the share to the beneficiary outright or in a further Descendants Trust. 

If left in a Descendants Trust, the inheritance: (1) can be protected from the beneficiary’s creditors, (2) will avoid becoming marital property subject to equitable distribution upon the beneficiary’s divorce, and (3) will be better preserved for future generations.

One advantage of a Descendants Trust is that if it is drafted correctly it can offer creditor protection for the beneficiary. Typically, the terms of the Descendants Trust will provide that income generated by the trust (e.g. interest, dividends) is distributed to the beneficiary annually/quarter-annually and trust principal can be distributed for the beneficiary’s health, education, maintenance, or support (“HEMS”) if the beneficiary is acting as his/her own trustee. 

Otherwise, an independent trustee (a person not related by blood or marriage to the beneficiary and is not subordinate to the beneficiary i.e. does not work for the beneficiary) can distribute trust principal for any purpose. By limiting distributions in this way, the trust property will be beyond the reach of the beneficiary’s creditors and protected from any potential judgments.

A second advantage of Descendants Trusts is that they are an effective tool of protecting the beneficiary’s inheritance in the event of divorce. Generally speaking, when people get divorced they each retain their “separate property” while “marital property” is equitably divided by the court. Separate property includes property received as an inheritance, but if that inherited property is comingled with other marital property during the marriage, it can be subject to equitable distribution upon divorce. 

However, if the inheritance is left in a Descendants Trust and the beneficiary keeps the inheritance in the trust and avoids comingling it, the property will be protected from the beneficiary’s spouse should they get divorced.

Another benefit of a Descendants Trust is that it is a good vehicle for preserving wealth for future generations. When property is left to a beneficiary outright, it simply becomes a part of the beneficiary’s own estate, and thus will pass according to his/her own estate planning documents upon his/her death. However, the terms of a Descendants Trust can stipulate the contingent/remainder beneficiaries so, for example, one can provide that upon a child’s death their share is to pass to his/her children in further trust. 

Additionally, for high net-worth individuals with taxable estates, by limiting distributions of trust principal for HEMS, as discussed above, property passing into the Descendants Trust will remain outside of the beneficiary’s taxable estate, saving the beneficiary potential estate taxes upon his/her own death.

A Descendants Trust can be a great option for those who want to leave property to beneficiaries with creditor issues, beneficiaries going through a divorce, high net-worth individuals, or simply for beneficiaries lacking fiscal responsibility where it would be best for their inheritance to be managed by another person as trustee. An experienced elder law attorney can advise you as to whether a Descendants Trust makes sense for your particular situation and estate planning goals.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

In addition to traditional healthcare advance directives, such as a Healthcare Proxy and Living Will, the MOLST form is another advanced directive one can execute to ensure their end-of-life wishes are followed.

MOLST stands for “Medical Orders for Life-Sustaining Treatment.” It was originally tested in Onondaga and Monroe Counties in May 2006. In July 2008, after a successful pilot program, the MOLST program was implemented on a permanent, statewide basis. The Department of Health updated the form in June of 2010 to make it more user-friendly and to make it compliant with the Family Health Care Decisions Act. Despite the fact that the MOLST form has been around for several years, many people are unaware of its existence. In fact, even many physicians and social workers are not familiar with it.

Unlike a Living Will which can be prepared well before the end of your life, the MOLST form is a medical document traditionally executed when the patient wants to avoid or receive any or all life-sustaining treatment, is in a long-term care facility or requires long-term care services and/or may die within the next year. It is intended to assist health care professionals in discussing and developing treatment plans that reflect the patient’s wishes. The program is based on the idea that communication between you as a patient (or your legal surrogate) and your health care providers will result in informed medical decision-making. 

A licensed physician must verify that the treatment plan accurately represents the patient’s wishes in light of their prognosis and sign the form. Once executed, all health care professionals must follow the orders designated by the patient from one location to another, unless a physician examines the patient, reviews the orders and changes them.

The MOLST form itself is bright pink to ensure that it can be found easily in an emergency. It documents medical orders regarding life-sustaining treatments such as Cardiopulmonary Resuscitation (CPR), intubation, mechanical ventilation, artificial hydration and nutrition. The form can be used to limit medical interventions like cardiopulmonary resuscitation (CPR) or to clarify a request for specific treatments. Through this document, you can include directions about other types of medical procedures that you may or may not want to receive. Moreover, because the form is intended to follow the patient, it is used and recognized in a variety of health care settings.

The benefit of the MOLST form is that it forces a constructive dialogue between the patient and their medical providers that will aid physicians, nurses, health care facilities and emergency personnel in fulfilling patient wishes regarding life-sustaining treatments.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. with offices in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

In December 2017, Congress passed the Tax Cuts and Jobs Act (“TCJA”).  This tax bill was an overhaul of the tax law affecting individuals and businesses in many ways. One of these changes substantially increased the Federal estate tax exemption.  

At the time the law was inked, the Federal Basic Exclusion Amount for an estate was $5.49 million ($5 million, indexed for inflation).  This meant that no taxes would be owed on the estate of a person dying in that year with a taxable estate less than that.  For estates over that amount, the overage was taxed at 40%.

The TCJA stated that for deaths in 2018, the exemption increased to $10 million, indexed for inflation.  Currently, in 2023, the estate tax exemption is $12.92 million.  This is an individual exemption, so a married couple enjoys $25.84 million between them.  

While this increased exemption is helpful for many families, it is not a long-term solution.  The law expanded the exemption but only for a limited period of time.  Barring any action by Congress to extend this further, this and other provisions of the TCJA sunset at the end of 2025.  As a result, where an individual dies on or after January 1, 2026, the exemption will return to the pre-2018 scheme of $5 million, indexed for inflation (likely to be just under $7 million).  For single persons with less than $7 million in assets, and couples with less than $14 million between them, there is no cause for concern when it comes to Federal estate taxes, even after the sunset.

With this looming sunset of the exemption amount, couples and single individuals may be able to take advantage now of the higher exemption amount with proper planning.  An alphabet soup of tools are available including SLATs, GRATs, IDGTS, etc.  The general idea being to remove assets from your taxable estate while you are alive, utilizing your expanded exemption, thus reducing the taxable assets at the time of death and passing more along to your beneficiaries.  There are also planning mechanisms for the charitably inclined that will serve to further reduce one’s taxable estate.

For New Yorkers, the State estate tax, currently $6.58 million, has been the larger concern.  Unlike the Federal, the New York exemption is not “portable” between spouses, meaning that the exemption of the first spouse to die cannot be saved to be used when the second spouse dies. Planning must be done to utilize each spouse’s exemption at the time of their respective deaths. 

Not all planning opportunities will suit your individual circumstances.  Determining the proper estate planning tools will depend upon your family structure, asset structure, and intended beneficiaries.  You should speak with your estate planning attorney today to better plan for tomorrow. 

Nancy Burner, Esq. is the founder and managing partner at Burner Prudenti Law, P.C. with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

As a part of Medicaid eligibility, existing members must recertify with the local Department of Social Services (“DSS”). This is a mini application wherein your will have to provide current financial statements, monthly income verification and pooled income trust deposits if using one. This has always been the case for recipients of Community Medicaid and Chronic Medicaid; however, this may be a new concept for those that started with the program post-March 2020.

Due to the COVID pandemic, DSS was extending benefits without the requirement of submitting the necessary documents. You may have even received a notice from your local department stating that “we will extend Medicaid coverage” and “based on the federal legislation signed into law on Wednesday, March 18, 2020, no person who currently has Medicaid coverage will lose their coverage during this time of the COVID-19 pandemic.” For some people, this meant no recertification for three years. But that time is over and as the new notices from DSS say it is time to “ACT NOW.”

Since this is the first time in three years that benefits have been adjusted, you could see a dramatic change in the income budgeting for the Medicaid recipient. One of the main reasons for recertification (other than confirming continued eligibility) would be to assess the monthly income budgeting. This would be the net available monthly income (“NAMI”) for Chronic Medicaid recipients which needs to be the amount paid over the nursing home each month. For Community Medicaid recipients it would mean adjustments to the funding of the pooled income trust. This is usually adjusted annually, and the change is barely noticeable. 

But now, after three years, the adjustment may seem dramatic, especially if there has been a major change with the Medicaid recipient, including the death of a spouse, change in value of a retirement account, or an increase in social security benefits. All of these circumstances can impact the monthly benefits.

Retaining an attorney to prepare and submit the recertification is typically advisable. If the application is not filled out correctly, or documentation is missing, the recertification could be denied for failure to provide information. This would result in a loss of benefits for the Medicaid recipient and the possibility of a gap in coverage.

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C. with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner Esq.

Nancy Burner, Esq.

Executing a Last Will and Testament with an attorney is an important step in deciding and planning your legacy. However, this does not mean that all is solved upon one’s death. It is important that the client and future executor understands the process of probate and the necessary requirements of the court system. 

Probate is the legal procedure by which your assets pass upon your death. When a person dies with a will, the nominated executor must file a probate petition with the Surrogate’s Court in the county in which the decedent lived. This is necessary to be officially appointed by the court so that the executor can distribute property or assets left by the decedent. 

First, the executor files the original will, a certified copy of the death certificate, and the probate petition in Surrogate’s Court. Then, notice needs to be given to the decedent’s next-of-kin who would have inherited had there not been a will. The next of kin will either sign waivers and consents in agreement or issue a citation to appear in court to have the opportunity to object to the will. Often a family tree affidavit needs to be filed by an independent person who knows the family history. 

After jurisdiction is complete and any issues with the will addressed, the Surrogate’s Court will issue a decree granting probate. The judge issues Letters Testamentary giving the executor authority to act. These Letters Testamentary serves as the physical paperwork for the executor to carry out distributions of the estate. 

When a person dies without a will (intestate), it is necessary to file an Administration Petition with the Surrogate’s Court. Here, a close relative of the decedent applies to become the decedent’s Administrator. The assets pass to blood relatives according to statute. The Court will then issue Letters of Administration appointing them Administrator. As with a probate proceeding, all interested parties must be given notice and either sign a waiver or served with a citation issued by the court. Sometimes a kinship hearing is necessary to prove relation to the decedent. 

As you can imagine, the probate process can be costly and time consuming in even the simplest cases. Probate proceedings can drag on for years when distant relatives cannot be located or a relative decides to contest the will. Contested wills can result in litigation proceedings and become draining mentally and financially for those involved. The good news is that probate can be avoided through the use of beneficiary designations and trusts.

Assets held jointly with rights of survivorship pass automatically to the surviving owner upon death. This is common in the case of spouses. Likewise, assets with designated beneficiaries pass to the designated beneficiaries, avoiding probate. Examples of jointly held assets include joint bank accounts and real property owned by spouses. Common assets with designated beneficiaries include retirement accounts and life insurance policies. If you have not named a beneficiary on an account that allows it, these assets must go through probate. Of course, not every type of asset allows a beneficiary designation. 

Another way to avoid probate is by creating a living trust. While there are many different types of living trusts, most can hold assets such as bank accounts, real estate, businesses, and personal belongings. For example, a revocable living trust is primarily used to avoid probate. You, as the grantor, would be both the trustee and beneficiary during your lifetime. You would add a successor trustee to take over if you became incapacitated and upon your death. This successor trustee can seamlessly take over management of the trust property and no court proceedings are necessary. 

Keep in mind, any assets owned by a revocable or irrevocable trust will simply pass according to the terms of the trust, free from court interference. Certain trusts also allow a trustee to control assets if one becomes incapacitated.  

One size does not fit all when it comes to trust planning. It is important to discuss the best option for you and your loved one with an attorney who specializes in this area of the law and can explain the pros and cons of trusts, probate and more. 

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C. with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.