Finance & Law

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Federal and state funding of COVID-19 related relief will likely require major budget overhauls and could potentially change the estate and gift tax landscape.

On the federal level, the 2017 Tax Cuts and Jobs Act doubled the estate and gift tax exclusion from $5,000,000 to $10,000,000, as adjusted for inflation, for decedents passing away between 2018 and 2025. However, the increase in the exclusion amount is temporary and is scheduled to sunset on December 31, 2025 and revert back to $5,000,000 (adjusted for inflation).

Currently, the federal 2020 lifetime exclusion amount is $11,580,000 per person, which can be utilized to transfer assets during life or upon death, free of federal estate or gift tax. In New York, the current estate tax exclusion is $5,850,000. New York does not impose a gift tax, although gifts made within three years of death are brought back into the estate for estate tax purposes.

Portability on the federal level allows a surviving spouse to use the deceased spouse’s unused federal lifetime exclusion. Therefore, if the first spouse to die has not fully utilized his or her federal estate tax exclusion, the unused portion, called the “DSUE amount,” can be transferred to the surviving spouse. The surviving spouse’s exclusion then becomes the sum of his or her own exclusion plus the DSUE amount. 

To take advantage of the DSUE amount, a timely filed federal estate tax return must be filed within 9 months from the deceased spouse’s date of death, or within 15 months pursuant to an extension request. Many surviving spouses may not be aware of this requirement or fail to see how filing a return would be beneficial at the time of the first spouse’s death with the current exclusion amount being so high. If ignored, upon the death of the surviving spouse, his or her estate is unable to utilize the DSUE amount unless other specific actions are taken. New York State does not currently have portability.

With the looming sunset, practitioners were concerned with what exclusion amount would be used to calculate the estate tax for a decedent dying after January 1, 2026 who made gifts between 2018 and the end of 2025, or the DSUE amount for the spouse that died between these dates that filed a return for portability. Finally, on November 26, 2019, the Treasury

Department and IRS issued regulations clarifying that the estate tax and DSUE amount will be calculated using the increased exclusion amount that was in place between December 31, 2017 and January 1, 2026, confirming that there will be no “claw back.”

Increased spending associated with COVID-19 will likely leave the government searching for revenue. One such avenue could be a reduction in the exclusion amount on the federal and/or state level, even prior to the current federal sunset date. It is more important than ever for an executor to file a federal estate tax return on the death of the first spouse to lock in the higher DSUE amount. 

Additionally, individuals with high net worth should consider gifting assets now to reduce their taxable estate on both the federal and state levels. 

With so many political and social changes on the horizon, it is of paramount important to work with an experienced estate planning attorney to discuss these issues, review your estate plan and potentially revise your current estate planning documents to include provisions for estate tax planning on the death of the first spouse. The potential to be subject to estate tax could increase for a significant number of individuals if the exclusion amount is lowered in the future.

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

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By Linda Toga, Esq.

Linda Toga, Esq.

With the COVID-19 pandemic on everyone’s mind, many people who have not engaged in estate planning have contacted me about how best to proceed with the development of an estate plan. 

It seems that the fear of the virus has made people understand the need for estate planning. However, even if you have a will or a trust, a power of attorney and/or a healthcare proxy, now is a good time to review your documents to confirm that they still express your wishes and meet your needs. Advanced planning is not something you think about once and forget. Successful planning requires that you periodically review and possibly revise your documents to reflect changes in your life circumstances. 

Some things to think about are:

Your beneficiaries: Have any of the beneficiaries named in your will or trust passed away? If so, you may want to name some new beneficiaries to share in your estate. Even if a beneficiary is still living, you should ask yourself if that person is still someone to whom you wish to leave a bequest. Relationships change over time. Are there new people in your life who are important to you? Are there beneficiaries named in your documents with whom you now have little or no contact, perhaps as the result of a divorce or relocation? Did you name a charity that no longer exists as a beneficiary? Are any of the beneficiaries now disabled? If you answered “yes” to any of these questions, you should consider making changes to your will or trust. 

The bequests: If you financial situation has changed since you created your estate plan and you can now make more generous bequests, you may want to revisit the size of bequests made to certain individuals. The converse is also true. If your estate is likely to be significantly smaller, perhaps you want to limit the bequests you are making either by removing some beneficiaries or decreasing the amount or percent of your estate going to each beneficiary. 

Your fiduciaries: The word fiduciaries refers to the people you have named as executor, trustee, agent and/or guardian in your estate planning documents. If any of the people you named as a fiduciary have passed, you should name a successor. If you named a sibling as an executor because your children were minor and now they are responsible adults, perhaps you want to name one of more of your children as the executor(s) of your estate.

Many clients revise their estate plans and name their children as agents on their powers of attorney or healthcare proxies when their children are older, more responsible and in a better position to make important decisions. This may be something you want to consider. If you named guardians to care for your children in the event you die when the children are still minors, it is very important to revisit this appointment. Perhaps your children have attained the age of majority and no longer need a guardian in which case the provision naming a guardian can be deleted. 

If a guardian may still be needed, you should consider the relationship the named guardian has with your children. Perhaps the person you named no longer has a good relationship with your children, or they have moved out of state and could only serve if your children are relocated. Has the guardian’s financial situation or living arrangements changed to the point that taking in and caring for your children will be overly burdensome? Since the guardian you name may be raising your children, all of these issues deserve serious thought. 

Although there are many issues to consider when reviewing your estate plan, the points mentioned above can provide a good starting point. Retaining an experienced estate planning attorney to review your documents with you and to discuss any changes you may want made will ensure that your estate plan will once again reflect your wishes. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. Call 631-444-5605 or email Ms. Toga at [email protected] to schedule a consultation. 

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Community Based (homecare) Medicaid is a program that can assist families in paying for the cost of home health aides as well as other programs, supplies and equipment, to help people age in place. Medicaid, unlike Medicare, is a need-based program with certain asset and income requirements.

These separate requirements for Medicaid eligibility must both be met by the applicant. To meet the Community Medicaid asset requirements, an individual is permitted to own a home, have liquid non-retirement assets that do not exceed $15,750.00, retirement savings in any amount, an irrevocable pre-paid funeral account and one car. With respect to income, an applicant may retain a monthly income of $875.00 plus a disregard of $20.00. The recipient must continue to take required monthly minimum distributions from retirement accounts.

Unlike nursing home Medicaid, any excess income can be directed to a Pooled Income Trust for the benefit of the Medicaid applicant and the monies deposited into that trust can be used to pay the household expenses of the Medicaid applicant. These household expenses are not limited to shelter but can include food, luxury items and any non-covered medical expenses.

Until recently, under the New York Medicaid guidelines, there has not been a look-back for Community Medicaid, meaning an applicant for Community Medicaid could transfer an unlimited amount of assets in one month and be eligible the 1st day of the following month. Soon, this will no longer be the case. 

An amendment was made to New York Social Service Law Section 366 subd.5 under the 2020-2021 New York State Budget, wherein a thirty (30) month lookback was instituted for Community Medicaid coverage. The change is set to roll out on October 1, 2020. 

This means that an individual applying for Community Medicaid post-October 2020, will have to submit 30 months of financial disclosure for eligibility purposes. To the extent there are uncompensated transfers or gifting, the applicant will be penalized and not enrolled in Community Medicaid for a specific period. The divisor currently used is $13,407.00, meaning that for every $13,407.00 the applicant transferred for less than fair market compensation, he or she will be penalized for a period of one month.

For example, if it is determined that an application gifted $60,000.00 within the 30-month lookback, the applicant will be ineligible to receive Community Medicaid for approximately 4.5 months, requiring an out of pocket payment for care received for those months. This raises the question of where the money for that care will come from. 

What if you gifted the money without an expectation of receiving it back and without taking into consideration your own care needs? It is still unclear how the penalty period will run, from which date it will be calculated and how applicants will be able to mitigate any transfers they did make during the lookback. 

Similarly, it is not clear if the 30-month lookback will affect those currently enrolled in the Community Medicaid program. The law does not address whether transfers made prior to the change in the law will be exempted from the lookback and whether there will be a post eligibility lookback assessed to those already on the program. 

To remain eligible, a Medicaid recipient must recertify their Medicaid benefits annually. Under the current regulations, only financial documents showing assets and income as of the date of recertification need be provided. However, in light of the new lookback, it is uncertain if the recertification process will now require a 30-month lookback. Likewise, it is unknown whether the local department of social services will discontinue benefits for those recipients who had transferred assets in the last 30 months.

The Community Medicaid program in New York allows our seniors to remain in their home, receiving care. With careful planning this program can still allow many individuals to age in place. The changes to the Medicaid qualification process highlight the need for sound estate planning that includes consideration of asset protection planning.

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

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My father died in September, 2018. This April I received a check from the United States Treasury payable to my father in the amount of $1,200. The check reflects the Economic Impact Payment or stimulus check authorized for many citizens as part of the Coronavirus Aid Relief and Economic Security or CARES Act. My family could really use the money since I lost my job when the business I worked for closed in March but, I’m not sure if I should I cash the check.

THE QUESTION: Are deceased individuals or their families entitled to Economic Impact Payments?

THE ANSWER: There has been a great deal of confusion concerning stimulus checks that were sent to deceased individuals. I have received quite a few calls from clients asking whether they can cash checks sent to individuals who died recently, as well as individuals that died well before your father. 

Adding to the confusion is the fact that some of the checks in question include the notation “DECD”, short for deceased, on the payee line. This certainly suggests that the Treasury knowingly sent checks to deceased individuals and has lead a number of people to conclude that the checks can be cashed. Other callers have suggested that since their loved one either died from the coronavirus or suffered financially from the virus before passing that their estate should be entitled to the stimulus funds. Unfortunately for the families of the deceased check recipients, the government does not see it that way. 

On May 6, more than a month after checks were first mailed out, the IRS tried to clarify the situation by stating on its website that funds that were sent to deceased individuals should be returned. They provided instructions for how that should be done. 

However, rather than bringing clarity to the issue, the posting on the website added to the confusion. That’s because the posting states that if the payee died “before receipt of the payment,” the payment should be returned. If all payments were made by checks that were mailed to the recipients and delivery times throughout the country were the same, the IRS post may settle the question. 

However, since the time it takes for mail to be delivered to different places varies, and since some people received checks through the mail while others had the funds deposited directly into their bank accounts, a rule that relies on receipt of the payment rather than the date the payment was authorized inevitably favors those people with slow mail service. 

For example, if Mr. Smith’s check is mailed on April 11 and received on April 14 and Mr. Cooper’s account is credited on April 11, and both men die on April 12, the IRS post suggests that Mr. Smith’s estate can keep the money but, Mr. Cooper’s estate is expected to return the funds. It seems unlikely that the Congress intended the CARES Act to discriminate against people with direct deposit but, absent further clarification from the IRS, they will suffer that unintended consequence. 

Although it is clear that the Treasury expects checks payable to deceased individuals to be returned, some people point out that it may be premature to return funds to the IRS at this time. That is because Congress is debating additional relief packages that may provide that the families of deceased recipients of stimulus checks are entitled to retain the funds. 

Even if the family of an individual who died years ago and was not impacted by the coronavirus may not be entitled to a keep the stimulus check, provisions may be made to help the families of those who died from or suffered financially from the pandemic. There is precedence for such relief since the government did not require that funds payable to deceased individuals through the Economic Stimulus Act of 2008 be returned. Then, as now, the goal of the stimulus checks was to stimulate spending and specifically to boost consumer spending.

At this time, it may be prudent to take a wait and see approach, especially with respect to checks that were sent to individuals who died recently. That is especially true since it is unclear how the government will get back the stimulus money that was given to deceased individuals. Collection efforts by the treasury cannot be started until death records are compared with the list of payees and the list of estates that already returned checks. That will take time. 

In addition, Congress may yet decide that the funds need not be returned. Considering the confusion surrounding the initial issuance of the stimulus checks, the prospect of getting a returned check reissued in the event Congress authorizes payments to deceased individuals is poor. That being said, once the question of eligibility is conclusively resolved, stimulus checks that were sent to deceased individuals who are found to be ineligible to receive the funds will have to be returned. 

As far as the check sent to your father is concerned, I would be surprised if Congress decided that your father or his estate is eligible for stimulus funds relating to the pandemic. However, I recommend that you monitor the situation closely so that you can make an informed decision as to whether you need to return the check. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected] She will respond to messages and emails as quickly as possible. 

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Congratulations! You’re going to be graduating from high school very soon and are (fingers crossed) heading off to college in the fall. In preparation, you are shopping for school supplies, bedding, a new wardrobe, and researching the best classes to take. What you’re likely not thinking about is ensuring you have the proper estate planning documents in place before taking that next step in your life.

Drawing up a will or advanced directives for a college student may seem like an unnecessary task and expense, but once you turn 18, you are considered an adult under New York State law. Since you are no longer under your parents’ care, they do not have an automatic right to make decisions on your behalf. While this may seem like your long-awaited initiation into the freedom of adulthood, the reality is that situations may arise where a parent or other family member’s input is crucial.

Students are especially prone to getting sick or injured and, combined with living on their own, make it necessary to put certain legal directives in place. The three documents every college student needs are a health care proxy, HIPAA release form, and durable power of attorney.

A health care proxy allows you to appoint an agent to make medical decisions for you if you cannot do so for yourself. You can only name one agent but can nominate alternate agents in case your primary agent is unable or unwilling to act. The HIPAA release form further authorizes your agent to obtain your medical information. Without these documents, your parent (or whomever you designate to make such medical decisions) is going to face resistance when it comes to inquiring about the status of your health or providing care instructions to your doctor.

The power of attorney names an agent to make financial decisions on your behalf. The power of attorney does not strip you of your financial powers but rather duplicates them so that your agent can act in your stead if you are incapacitated or otherwise unable to act. A power of attorney can be beneficial if you need someone to pay a bill, apply for financial aid, or hire a professional on your behalf, such as an accountant or lawyer.

Beyond the aforementioned documents, you may also consider a last will and testament and a living will. Although they sound similar, they are very different documents. Depending on the extent of your assets, either saved or inherited, you may want to designate beneficiaries in a last will and testaments or trust. A “living will” documents end of life decisions, such as whether you want to be kept alive by artificial means if you have an incurable disease or are in a persistent vegetative state.

Although these are questions that you will hopefully not face for decades, planning for your future is an important way of taking control of your life. Any new graduate — or eighteen-year-old for that matter — should make time to seek the advice of an Estate Planning attorney to discuss what documents should be in place as you enter the world of adulthood.

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

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Linda Toga, Esq.

THE FACTS: My father recently died at the age of 98. I am 78 and not well. My oldest brother is the executor of my father’s estate. In his will, my father directs his executor to distribute this estate in equal shares to me and my siblings. My brother strongly dislikes my wife and has made it clear that if I pass away before my father’s estate is settled, that he has no intention of distributing my share of the estate to my wife.

THE QUESTION: Can my brother legally withhold my share of my father’s estate from my wife?

THE ANSWER: As executor, your brother is legally bound to honor your father’s wishes whether he likes it or not. Regardless of whether you are alive at the time of distribution or not, your brother cannot change the terms of the will. 

If you had died before your father, how your share of his estate was to be distributed would have depended on the language in your father’s will. For example, if your father’s will said his estate was to be divided equally amongst his children, per stirpes, and you predeceased your father, your share of his estate would pass to your children, not your wife. If your father’s will stated that his estate was to be divided equally between his then living children, your share would be distributed, pro rata, to your siblings who were alive when your father died. However, since you were clearly alive when your father died, you have a vested interest in your share of his estate. 

If you are still alive when your father’s estate is settled, you are obviously entitled to receive your share of his estate outright. You can then do with your inheritance whatever you wish. If you pass before your father’s estate is settled, your share of his estate will pass to your estate. 

Once an executor or administrator is appointed by the court to handle your estate, that person will have the authority to distribute your inheritance in accordance with the provisions of your will. If you do not have a will, the intestacy statute will dictate how your estate will be distributed. 

If your wish is to have your estate, including the inheritance from your father, pass entirely to your wife, you should retain an experienced estate planning attorney to prepare a will that reflect your wishes. This is particularly important if you have children since, without a will, the intestacy statute would require that your children receive a share of your estate. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected] She will respond to messages and emails as quickly as possible. 

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By Nancy Burner, Esq.

Nancy Burner, Esq.

When a person does their estate planning, he or she will typically prepare a Last Will and Testament. A will contains a provision that nominates an Executor. Since there is a nominated executor, typically, in probate proceedings the appointment of the fiduciary is not complicated as it is controlled by the selection made by the testator.

It is significantly different when a person dies intestate (without a will). In these situations, the Surrogate’s Court is required to appoint an Administrator. The rules on the priority of who is eligible for appointment are contained in Surrogate’s Court Procedure Act. The statute contains a detailed order of priority in the court’s granting of letters of administration. Absent a showing that the person with statutory priority is ineligible to receive letters of administration due to several grounds including: that person is an infant; incapacitated; a non-domiciliary of the United States; a felon or does not possess the qualifications required of a fiduciary by reason of substance abuse or dishonesty, letters must issue to that person.

The decedent’s surviving spouse has priority to receive letters. Unless he or she is ineligible as stated above, the spouse will be appointed. This becomes an issue in many second marriage situations where the children of the first marriage do not get along with spouse from the second marriage. Unless there are grounds to disqualify the spouse, it is likely not worth pursuing objections to his or her appointment. Filing objections will delay the matter and cost a lot of money in legal fees with little likelihood of success.

Complications in the appointment of an Administrator also arise when there are several people in one category with equal priority to serve. This happens when the decedent has no spouse and several children. This situation can also arise in families where the decedent has no spouse, children, or surviving parents but several surviving siblings. Regardless of whose consent is required in each case, letters of administration can only issue to an eligible person(s) or person nominated by all interested parties.

It is not always advisable to resolve family disputes for letters of administration by agreeing to have the two or more administrators serve together. If the level of hostility is great, it is unlikely that they will be able to work together for the smooth administration of the estate. The parties might be able to agree on a third party to serve, known as a designee.

 If not, the court may appoint one of the parties or might appoint the Public Administrator. While the Public Administrator will ensure fairness in the process, its fees are typically higher than if a family member served. The Public Administrator will take statutory commissions if appointed, and the Public Administrator will also be entitled to have its attorneys’ fees and the expenses of its office paid from the estate.

The appointment of an Administrator can be as simple or as difficult as the family dynamics allow. Regardless, if you are seeking to become the administrator of an estate, you should seek the advice of an attorney experienced in estate administration to guide you through the process. Getting appointed by the court is only the first step in the process of administering an estate.

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

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Linda Toga, Esq.

By Linda Toga, Esq.

THE FACTS: For months now I have been meaning to schedule an appointment with an estate planning attorney to discuss my wishes with respect to a will, healthcare proxy and power of attorney. I have a lot of questions and really need some guidance as to what I should do and how I can best ensure that my wishes will be honored. Since the onset of the coronavirus crisis, I have been losing sleep over the fact that I do not have an estate plan in place. 

THE QUESTION: Now that law offices are closed and social distancing is a reality, is there anything I can do to move my estate planning process along? 

THE ANSWER: While estate planning is extremely important, at this point in time it is more important that you do your part to avoid the spread of the virus. I urge you to stay at home to the extent possible and, if you do leave the house, to be sure to wipe down frequently used surfaces, wash your hands often and follow the guidelines set by the government for social distancing. 

That being said, while you are at home, you can certainly give some thought to your estate plan and gather the information that will be needed in order for your estate planning documents to be prepared. Although I am not in my office on a regular basis, I am continuing to work with both current and new clients by phone and email. 

While personal contact may not be an option at this time, a great deal can be accomplished remotely and I welcome the opportunity to discuss with you your concerns and wishes. Also, it should be noted that the legislators in Albany and the New York State Bar Association are considering changes to the law that would allow for remote execution and witnessing of estate planning documents during this crisis. 

In the meantime, you should give some thought to who you want to name as your agent or agents in your advanced directives such as your power of attorney and healthcare proxy. It is a good idea to ask the people you are thinking of naming as your agents whether they are comfortable with acting in that capacity. Some people may not want to or may not feel they are capable of taking on the responsibility of handling your affairs or making end of life decisions on your behalf. 

While it is important for any agent that you name to know what your wishes are, it is absolutely critical that the person you name as your healthcare proxy be fully aware of the circumstances, if any, under which you may want certain types of treatments and/or procedures to be withheld.

Once you’ve decided on who you want to name as your agents and have discussed with those people your wishes, you should be sure you have the information such as the agents’ phone numbers and addresses that will be needed to prepare your advanced directives. 

In terms of your will, you should give some thought to what assets you have and what assets will pass under your will. Only assets owned by you individually as opposed to assets that are owned jointly, held in trust or subject to a beneficiary designation form will pass pursuant to your will. These assets are called probate assets. 

Once you have a handle on what assets are probate assets and what assets will pass outside your will, you can think about who the beneficiaries of your estate will be and if and how you want the assets divided. You should consider what will happen if a beneficiary predeceases you and whether you want assets to be distributed upon your death or held in trust for future distribution. In addition to how your probate assets will be distributed, think about who will handle your estate. At a minimum, you need to name an executor and a successor executor.

Although making decisions about who will serve as your agents and executor, what your wishes are with respect to end of life care and how your assets will be distributed may seem overwhelming, as I mentioned before, I am available by phone and via email to discuss with you the estate planning process and your unique circumstances. 

Once we have developed a plan, I will send you drafts of your estate planning documents for review. Hopefully by then a procedure will have been worked out for the remote execution and witnessing of your estate planning documents. If not, at least you will be ready to execute your documents in the presence of witnesses as soon as the restrictions that are currently in place are lifted.

In the meantime, I hope that the coronavirus crisis does not cause you or your loved ones undue stress or inconvenience and that you stay well. I look forward to hearing from you. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected] She will respond to messages and emails as quickly as possible. 

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By Leah Chiappino

One of the most trying aspects of COVID-19 is the financial turmoil it has brought on both national and local business sectors. Financial adviser Michael Christodoulou of Edward Jones Investments in Stony Brook answered some commonly asked questions about how to secure investments and resources for small businesses, and the types of financial assistance offered through the recent stimulus package.

Q: What is your advice for people, especially those that are retired or nearing retirement, regarding their stocks and 401(k) plans?

A: For one thing, ask yourself this: When do you really need the money from your investment accounts, such as your IRA and your 401(k) or similar employer-sponsored plan? These are retirement accounts, so, depending on your age, you may not need to tap into them for 20, 30 or even 40 years. If so, your losses may be “paper” ones only for now and aren’t subjecting you to imminent financial jeopardy. This isn’t to minimize the effect this downturn will have on you, of course — it always takes time to recover lost ground, and there are no guarantees with investing. However, although past performance does not guarantee future results, it is useful to note that, over its long history, the U.S. stock market has typically trended in one direction — up — despite serious and sometimes lengthy declines such as we saw in the Great Depression and, to a lesser extent, the bursting of the dot.com bubble of the early 2000s and the financial crisis of 2008-09.

Nonetheless, you may have shorter-term goals — a wedding, down payment on a home, overseas trip, etc. — for which you need to save. For these goals, though, you wouldn’t want to touch your IRA or 401(k), anyway, as you’d likely face taxes and penalties. Instead, you’ll want your money invested in liquid, low-risk accounts that will be minimally affected, if at all, by declines in the financial markets. These vehicles might include Certificates of Deposit (CDs), money market accounts and even good old-fashioned U.S. savings bonds, all of which offer the protection of principal and can pay higher rates than traditional bank savings accounts.

Q: Should people stop contributing to retirement during this time?

A: Every investor has a different time horizon and risk tolerance. Depending on their time horizon and risk tolerance there may be a number of different recommendations.

For example, if a client has a longer-time horizon until retirement it may make sense to continue investing periodically in their retirement plan. But for someone who is looking to retire relatively soon, they might want to stop contributions or start saving those assets in low-risk accounts.

I highly recommend they work with their financial adviser in order to have a personalized strategy designed based on their goals for retirement.

Q: How would you advise small businesses go about applying for governmental assistance, especially through the federal stimulus bill?

A: Small businesses should work with their tax professionals/CPA and financial adviser in order to review their individual situation. I recommend they start by logging onto www.sba.gov/disaster. During this time, they should also be very cautious about scams. 

Q: The economic effects of this virus are already enormous, and will get exponentially worse. How do you think people can financially cope if this crisis continues?

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) offers help for investors and small businesses. As we go through the coronavirus crisis, we are all, first and foremost, concerned about the health of our loved ones and communities. But the economic implications of the virus have also weighed heavily on our minds. However, if you’re an investor or a business owner, you just got some help from Washington, and it could make a big difference, at least in the short term, for your financial future. Specifically, the passage of the $2 trillion CARES Act offers, among other provisions, the following:

  • Expanded unemployment benefits: The CARES Act provides $250 billion for extended unemployment insurance, expands eligibility and provides workers with an additional $600 per week for four months, in addition to what state programs pay. The package will also cover the self-employed, independent contractors and “gig economy” workers. Obviously, if your employment has been affected, these benefits can be a lifeline. Furthermore, the benefits could help you avoid liquidating some long-term investments you’ve earmarked for retirement just to meet your daily cash flow needs.
  • Direct payments: Individuals will receive a one-time payment of up to $1,200, although this amount is reduced for incomes over $75,000 and eliminated altogether at $99,000. Joint filers will receive up to $2,400, which will be reduced for incomes over $150,000 and eliminated at $198,000 for joint filers with no children. Plus, taxpayers with children will receive an extra $500 for each dependent child under the age of 17. If you don’t need this money for an immediate need, you might consider putting it into a low-risk, liquid account as part of an emergency fund.
  • No penalty on early withdrawals: Typically, you’d have to pay a 10 percent penalty on early withdrawals from IRAs, 401(k)s and similar retirement accounts. Under the CARES Act, this penalty will be waived for individuals who qualify for COVID-19 relief and/or in plans that allow COVID-19 distributions. Withdrawals will still be taxable, but the taxes can be spread out over three years. Still, you might want to avoid taking early withdrawals, as you’ll want to keep your retirement accounts intact as long as possible.
  • Suspension of required withdrawals: Once you turn 72, you’ll be required to take withdrawals from your traditional IRA and 401(k). The CARES Act waives these required minimum distributions for 2020. If you’re in this age group, but you don’t need the money, you can let your retirement accounts continue growing on a tax-deferred basis.
  • Increase of retirement plan loan limit: Retirement plan investors who qualify for COVID-19 relief can now borrow up to $100,000 from their accounts, up from $50,000, provided their plan allows loans. We recommend that you explore other options, such as the direct payments, to bridge the gap on current expenses and if you choose to take a plan loan work with your financial adviser to develop strategies to pay back these funds over time to reduce any long-term impact to your retirement goals.
  • Small business loans: The CARES Act provides $349 billion to help small businesses — those with fewer than 500 employees — retain workers and avoid closing up shop. A significant part of this small business relief is the Paycheck Protection Program. This initiative provides federally guaranteed loans to small businesses who maintain payroll during this emergency. Significantly, these loans may be forgiven if borrowers use the loans for payroll and other essential business expenses, such as mortgage interest, rent and utilities, and maintain their payroll during the crisis. Please visit sba.gov/disaster for more information.

We’ll be in a challenging economic environment for some time, but the CARES Act should give us a positive jolt — and brighten our outlook.

Q: Do you have any information on how residents will know the exact number on their stimulus check for those above the $75,000 income threshold?

A: I would advise individuals to contact their tax professional/CPA. They will be able to give more accurate guidance based on their clients’ taxable situation and possible qualifications for the CARES Act direct payment program.

Q: What is your advice for those that have recently lost jobs and need to prioritize their loans? How can people cut back, and are there any specific loans that should be paid over others?

A: In the unfortunate event that you or a family member loses your job there are some easy steps to follow to help you better prepare yourself for this event. The federal government has taken a big step in protecting renters by issuing a 120-day moratorium on evictions from federally subsidized housing and property with federally backed mortgage loans. Some states have barred evictions for a few weeks. Please check with your landlord and or mortgage company.

Q: With stocks dipping, is now a good time to buy?

A: Before investing we recommend that investors understand their time horizon with the asset they are thinking about investing. What will that money be used for in the future? At what point in the future will you need the money?

For investors with a long-term outlook and time horizon, we remain confident that a rebound will take shape. It may take a while longer to materialize, but we think it will be robust and fueled by a return of confidence in the post-virus outlook. Long-term investors don’t need to capitalize on the pullback all at once but should consider opportunities to benefit from this decline. Consider:

  1. Rebalancing: Trimming overweight allocations and filling gaps in underrepresented asset classes and sectors.
  2. Systematic investing: Taking advantage of the ongoing volatility by systematically investing at regular intervals, reducing the “timing” aspect as the selloff plays out.
  3. Look for good buying opportunities, because they are certainly out there. A well-managed company with a solid business plan that produces quality products and services is going to be that same company after the coronavirus and oil price panics subside and, right now, that company’s stock shares may literally be “on sale.”

We recommend you consult with a financial adviser in order to make sure you completely understand your level of risk and time horizon.

Q: Do you have any recommendations for a set amount people should have in savings in case of an emergency? What is the best way to do so?

A:  I believe everyone should have an emergency fund. Unfortunately, there isn’t a universal dollar amount that applies for everyone.

If you don’t already have an emergency fund, take these first steps to prepare:

  1. Detail your current financial situation including your income, expenses, assets and debts and any money previously set aside for unexpected expenses.
  2. Create a detailed budget in order to figure out what your monthly and annual living expenses add up to.
  3. Consider saving between three and six months of living expenses if you are still working; 12 months or more if you are retired.

This is just a starting point. Depending on your age, your list may look considerably different. Your financial adviser can help you put together your cash flow analysis related to your financial goals and help you calculate how much cash you may need for your next unexpected event.

Q: How do you think people should go about negotiating with credit card companies and banks if they need relief?

A: If someone is facing some financial hardship, they should contact their credit card company or bank directly. In most cases these companies can provide guidance and options so the individual understands their options and can make a decision based on all the information provided to them.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Many people use irrevocable trusts as part of their estate plan for tax savings, asset protection and Medicaid planning. In all these types of trusts, the grantor (creator) of the trust is going to be limited to their access of the principal of the trust in order to ensure that their planning needs are met. This means that their ability to use trust assets as collateral for a loan is going to be limited. 

A concern that should be discussed before transferring real estate to an irrevocable trust, is whether or not you 1.) have an existing mortgage and plan to refinance in the near future and 2.) whether you think you may need to get a new mortgage or line of credit in the near future?

It is common, particularly in Medicaid planning, to transfer real estate to your irrevocable trust because Medicaid trusts typically provide that the grantor can reside in the property and shall maintain all tax exemptions formerly afforded to them. This makes the home an easy asset to protect since the transfer does not affect everyday use of the property. The biggest exception is the Grantor’s ability to refinance or secure new mortgage products once the property is in a trust since many banks will not lend to properties owned by an irrevocable trust.

While most irrevocable trusts do not expressly prohibit the Trustee from securing a mortgage with a trust asset, the loan industry’s underwriting guidelines typically do not allow it. 

Luckily, some banks are catching up with the times and have special products which can be secured against properties in irrevocable trusts. However, you should expect to pay higher interest rates.

If your preferred lending institution will not work with your property in the trust, then it may be possible to revoke the trust with the consent of the grantor and beneficiaries. However, once a trust is revoked, it will no longer afford you the planning goals it once did.
In other words, if your house was in a Medicaid Trust for 7 years and you revoke it to avail yourself to the low interest rates now available for mortgages, it will no longer be protected. The home would have to be placed in another Medicaid trust for an additional 5 years before it would be protected again should you require nursing home care and ask that the Medicaid program pay for said care. 

Always speak to your attorney before taking any asset out of an irrevocable trust. While everyone wants to pay the lowest interest rate possible, the protection you are getting by keeping the assets in the trust may outweigh the cost savings. If beneficiaries will not consent, or cannot consent due to death, disability or minority, the Trustee may be able to “decant” the irrevocable trust assets to a new trust with different terms which the bank may find more favorable. Decanting requires a Trustee who is not an interested party, so if the current Trustee is also a beneficiary, a new Trustee will need to be appointed. 

Decanting has become popular in recent years not only for amending trusts to please the lenders, but to fix a myriad of issues that older trusts may present. This is a specialized area of the law and you should seek counsel that is familiar with sophisticated trust and estate principles before transferring any asset from one trust to another.

In sum, transferring your property to an irrevocable trust will likely limit your choices for refinancing or mortgaging the property in the future. If this is something you are considering, speak to your attorney about obtaining financing before you transfer your house to the trust to avoid the hassle later.

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