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Britt Burner Esq.

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By Britt Burner, Esq.

Britt Burner Esq.

If you are a parent of a young child, you have probably heard that you should have a will. But do you know why? There are two main reasons a parent of a minor child needs a Last Will and Testament and, in some cases, a revocable living trust. The first is to create a testamentary trust to hold assets distributable to the child who cannot legally inherit assets as a minor. The second is to name a guardian in the event both parents pass away before the child reaches the age of eighteen. 

So, what happens if you die without a will or trust? This is referred to as dying “intestate.” If you die intestate, to the extent that you have assets in your sole name, they will be distributed according to the state’s intestate succession statute. 

In New York, the spouse inherits the first $50,000 of your assets and the balance is distributed 50% to the spouse and 50% to the child(ren). This is usually not practical for a married couple, since most people want the surviving spouse to inherit everything, with children inheriting only upon the death of both parents. 

If you are not married and 100% of the assets go to your child(ren) or if you are married and it is only 50%, the default scenario is incredibly inefficient. If assets are to be paid out to a minor rather than to a testamentary trust created by your will or trust, a guardian of the property will be appointed by the court to handle the finances. Even if a family member or friend is eventually appointed, the court still appoints a guardian-ad-litem to represent the interests of the child. This is expensive, intrusive and ongoing. An annual budget is required and any deviations must be approved by the court. 

Furthermore, the assets remain in an account that is held jointly with the court and can only be accessed by court order. Additionally, the child will be able to take possession of all remaining assets at either 18 or 21 years of age – a time when the child may be too emotionally immature or inexperienced with finances to handle this sum of money. 

It makes sense to engage in estate planning that creates a trust for the benefit of your child(ren) upon your death. Any life insurance, bank accounts or retirement assets can list the trust as beneficiary. Organizing the disposition of your assets is crucial to making sure that those that are dependent upon you will be cared for at the time of your death.

Beyond the finances, there is the consideration of physical custody or guardianship of the minor child. If both parents pass away without a will that nominates a guardian, someone must petition the court to be appointed. This someone could be anyone, not necessarily the individual(s) you would choose to raise your child in your absence. This could lead to different family members or friends asserting control, with a judge ultimately deciding who will take on this responsibility. 

The simple solution to make this awful situation smoother for those you leave behind is to prepare a will. That way you can choose who will raise your child, who will handle your child’s inheritance and under what circumstances your child will inherit.

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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 Britt Burner, Esq.

Britt Burner Esq.

Turning 18 is a right of passage. According to New York State law, you are now and adult! With the reward and freedom of adulthood also comes responsibility. 

You may be on a continued education path to college or starting a new job. Some new adults are still receiving monetary and housing support from their families while others find themselves navigating on their own. Either way, on the “adulting to-do list” you should also add the basics of estate planning. Whether you are 18 or 81, there are four key documents you should consider: health care proxy, HIPAA release form, living will, and power of attorney.

Once adulthood is reached, a parent no longer has the authority to make medical decisions on behalf of their child. Since you are no longer under your parents’ care, they do not have an automatic right to access your medical records; no one has that right. It is important to designate who may receive this information if you should become incapacitated and, further, who you want to make medical decisions for you if you cannot do so for yourself. 

A health care proxy allows you to appoint an agent to make medical decisions for you in the event you cannot do so. You must choose a primary agent but can nominate alternates in case your primary is unable or unwilling to act. If you are in the hospital and have not signed a health care proxy, the law has a default regarding who can make medical decisions. Is this who you would choose? 

Beyond the proxy, a HIPAA release form should also be considered. HIPAA is the Health Insurance Portability and Accountability Act. It is the law that protects your personal medical information. A HIPAA release authorizes others to obtain your medical information. Executing these documents will ensure that your parent (or whomever you designate to make such medical decisions) will not face resistance when it comes to inquiring about the status of your health or providing care instructions to your doctor.  

In contrast, the power of attorney is a document that has to do with your financial and other non-medical information. This document will name 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 on your behalf. A power of attorney can be beneficial if you need someone to pay a bill, apply for financial aid, or hire a professional, such as an accountant or lawyer. 

You may also want to consider a living will. A living will is a guide to your agents regarding 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. The decisions you make today are not set in stone; these documents can be changed at any time. Anyone entering the first phase of adulthood should become familiar with these documents. 

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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.

Disabled / handicap parking. METRO photo

By Britt Burner, Esq.

Britt Burner Esq.

For disabled individuals, it can be difficult to navigate public benefits, especially when you have assets or income that exceed the allowable limits. Two commonly used vehicles to manage assets are Achieving a Better Life Experience (“ABLE”) accounts and Supplemental Needs Trusts (SNTs).

In September 2017, New York State passed a law authorizing ABLE accounts for disabled individuals in accordance with the federal law. ABLE accounts allow for money to be saved by someone receiving public benefits, such as SSI, without affecting eligibility.

To qualify for an ABLE account, the beneficiary must be diagnosed with a significant disability before age 26. Contributions can be made to the account by the beneficiary, friends, family members, or 529 college savings account rollover, but the total annual contribution cannot exceed a certain limit, which is pegged to the gift tax exemption. This amount is $18,000 in 2024 and is subject to change year by year. Employed beneficiaries may deposit an additional amount up to the Federal Poverty Line for a one-person household, but only if they are not contributing to a retirement savings account in that year. The 2024 Federal Poverty line amount is $14,580 in the continental US. 

However, ABLE account balances are limited. Under the SSI program, the first $100,000 in the account is disregarded as a resource. Any amount above that is counted as a resource. The SSI resource limit is $2,000. If you exceed this, SSI payments will stop until the resources are below the allowable limit. 

A disabled person may spend their ABLE account funds on “qualified disability expenses,” which are expenses and basic costs of living that are intended to maintain and improve their quality of life. These qualified expenses include but are not limited to education; health and wellness; groceries; housing; transportation; legal fees; assistive technology; personal support services; funeral/burial expenses, etc. 

Depending on the amount of money the recipient of benefits has and the anticipation of future funds, either from earnings or inheritance, it may be prudent to consider creating an SNT (supplemental needs trust) in addition to the ABLE account. 

Like the ABLE account, SNTs allow people with disabilities to save money without affecting their eligibility for public benefits such as SSI. There are two main types of SNTs. A first-party trust is self-funded by the beneficiary of the trust. To create a first-party SNT, the beneficiary must be younger than 65 years old. New funds may not be deposited into this SNT after the beneficiary turns 65. A third-party trust is funded by someone else, such as a parent or grandparent. There are no limits to the amount that can be contributed into either of these trusts per year, and there is no limit to the total asset balances in the trust. 

A trustee will be designated to control the assets in the trust and oversee the management and disbursement of its funds. SNTs allow the beneficiary to use the funds for expenses not paid for by public benefits. Such expenses can include clothes, entertainment, educational and recreational expenses, and transportation. SNTs may not be used for everyday expenses such as groceries. 

While SNTs do not have contribution or balance limits as ABLE accounts do, they have more complicated rules for what the funds can be used for. A qualifying individual does not need to choose between the two accounts. An SNT can be established for purchases and expenses not covered by public benefits, and an ABLE account can be set up for basic cost of living expenses and everyday expenses. 

Navigating the placement of funds while qualifying for government benefits can be complicated. However, with proper planning, the use of the funds can be maximized to the individual while also receiving the benefit of public assistance.

Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. 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.

Britt Burner Esq. speaks at the New York State Bar Association’s Elder Law and Special Needs Section summer meeting. Photo courtesy of Britt Burner, Esq.

Burner Prudenti Law has announced that partner Britt Burner, Esq. is the New York State Bar Association’s (NYSBA) newest Chair of the Elder Law and Special Needs Section. She kicked off her term, which officially began on June 1, 2024 and runs through May 31, 2025, at the Section’s annual meeting in Montreal held July 11-13, 2024.

The NYSBA’s Elder Law and Special Needs Section provides members with educational opportunities relating to Elder Law and Special Needs Law. The Section offers CLE (Continuing Legal Education) courses and webinars, as well as published materials on legal practice, procedure, and developments in the law. By helping to enhance the skills of lawyers who practice in this field and by providing them with opportunities for networking and knowledge sharing, the Section aims to improve the quality and efficiency of legal services offered to New Yorkers.

The Section also advocates for improvements in law and procedure that affect seniors and the disability community, in the form of studies, legal analyses and recommendations, and more. Of particular importance to Burner this year as Chair is addressing the legislative and budget concerns, especially those relating to Medicaid, that affect elder law attorneys and their clients.

With vast experience practicing as an elder law and special needs attorney, Britt Burner is well-positioned to lead the Elder Law and Special Needs Section. Before serving as an officer of the Section, she served as Vice Chair of the Section’s Medicaid Committee as well as Chair of its Legislation Committee. In addition to educating other lawyers about this area of law, Burner frequently offers seminars in the community to educate the public about elder law and special needs law as a means to help empower them to make the most informed decisions for their futures and that of their families. She is frequently honored for her contributions to the profession, having been most recently named a 2024 Super Lawyer in the field of Elder Law as well as recognized among the 2024 Best Lawyer rankings for Elder Law and Trusts & Estates in Manhattan, among numerous other awards.

The first order of business as Burner began her new term was to plan the Section’s annual meeting that was held in Montreal from July 11-13, 2024. There, she had an opportunity to share her vision for the upcoming year: increasing membership and continuing to ensure that every NYSBA elder law attorney’s concerns are heard on the state and national level.

“Serving as Chair of the New York State Bar Association Elder Law and Special Needs Section is an honor that I don’t take lightly,” shared Britt Burner, Esq. “As an elder law and special needs attorney I have personally benefited from the collective knowledge and support the Section offers, and I am thrilled to be able to pay it forward by serving as Chair.”

From left, Britt Burner, Esq., Hon. Gail Prudenti and Nancy Burner, Esq.

On Aug. 16, Burner Law Group, P.C. announced that it changed its name to Burner Prudenti Law, P.C. and welcomed new Partner Hon. Gail Prudenti, former Chief Administrative Judge for the State of New York. 

The hiring and new name reflects the firm’s three partners — Nancy Burner, Britt Burner and Gail Prudenti — and the firm’s continued expansion of its Trust & Estates and Elder Law practices.

“Gail Prudenti is one of New York’s preeminent trust & estates attorneys with decades of experience as a distinguished judge, an outstanding law school dean, and as a trusted attorney,” said Nancy Burner, Founding Partner. “Adding Gail positions Burner Prudenti Law to uniquely serve our clients’ growing needs for elder law and trust & estates expertise.”

Founded in 1995, as Nancy Burner & Associates and later, Burner Law Group, the firm is a wholly women-owned full-service boutique law firm specializing in elder law, estate planning, trusts & estates and real estate with offices in East Setauket, East Hampton, Westhampton Beach and NYC.

Over the years, the firm has developed a reputation for excellence, compassion and integrity, helping clients with matters involving wills and trusts, wealth management, guardianship, and long-term care.

“In thinking about the next chapter in my career, I wanted an opportunity where I could continue to make a difference in the community and help families solve their legal issues — Burner Prudenti Law provides me with both opportunities,” said Hon. Gail Prudenti, Partner. “I am delighted to be joining such an outstanding team of attorneys and a firm that shares a commitment to providing exceptional legal services, bettering the Long Island and New York community, and putting clients’ needs first.”

“This is an exciting time for the law firm, and we look forward to continuing our mission to help clients plan for their future through valuable and trusted legal services,” added Britt Burner, Partner. “Judge Prudenti’s wealth of legal and administrative knowledge will be invaluable to the firm’s work and the client experience.”

For more information, call 631-941-3434.