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Nancy Burner Esq.

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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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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.

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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.

When a couple gets divorced, the court attempts to divide the marital property as fairly and equally as possible. 

This doctrine of Equitable Distribution considers factors such as the length of the marriage, age and health of each party, and the earning power of each spouse. Under New York State law, “marital property” is broadly defined as property acquired by one or both spouses during the marriage. “Separate property” is defined as property acquired by an individual prior to marriage. Separate property is not subject to Equitable Distribution.

However, certain types of assets acquired during marriage are not subject to Equitable Distribution. Inheritance, gifts received from individuals other than one’s spouse, and personal injury compensation are considered separate property.

At first glance, it may appear that your child’s inheritance does not need protecting, but this is not the end of the story. Separate property can become marital property if “commingled” with marital property. 

For example, if your child were to deposit their inheritance into a joint account with their spouse, use inherited assets to purchase a home titled jointly, or your child’s spouse contributes to the maintenance and capital improvements of inherited property, the assets would become commingled and thus subject to Equitable Distribution upon divorce.

The best action you can take to prevent this from occurring is to leave your child’s inheritance in a trust. You could name your child as trustee or appoint someone else, and you would be able to limit distributions from the trust as you see fit. Importantly, the trust adds a layer of separation, better protecting the inheritance from a divorcing spouse and creditors by maintaining its status as separate property.

Moreover, with a trust you can control the remainder beneficiaries of the property you leave your child after his death. If you were to leave them their inheritance outright, your child’s own will would dictate how their estate were to pass. But with a trust you could stipulate that upon your child’s death any remaining assets pass to whomever you wish. This could be your grandchildren, your other children, or your favorite charity.

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.

Revocable trusts have become increasingly popular estate planning tools to avoid probate. A  trust allows for the orderly and private administration of your assets at death without court  involvement. 

A revocable trust is a trust that you create during your lifetime designed to give you flexibility and control over your assets. You may act as your own trustee, thereby  maintaining complete control over your assets. Assets can be transferred in and out of the  trust at your discretion and you may change or revoke your trust at any time. 

A revocable trust can hold any asset. Common assets include real property, non-qualified  investment accounts, bank accounts, certificates of deposit, and life insurance policies. Qualified retirement accounts should never be transferred to a revocable trust as it would  cause a taxable event.  

Assets titled in the name of your revocable trust pass to the beneficiaries automatically,  thereby avoiding probate. Likewise, any assets with designated beneficiaries pass directly to  beneficiaries. Assets in your sole name that do not have designated beneficiaries must go  through probate.  

Why do people want to avoid probate? Probate is time consuming and can be expensive. When a person dies with a will, the nominated executor must file a probate petition with  the Surrogate’s Court before having the authority to act. First, the Executor will file the  original will, certified copy of the death certificate and the probate petition in Surrogate’s  Court. Then, notice is given to the decedent’s next-of-kin who would have inherited had  there been no will. The next-of-kin will either sign waivers and consents or be issued a  citation to appear in court to have the opportunity to object to the Executor. 

After  jurisdiction is complete and issues with the will, if any, are addressed, the Surrogate’s Court  will issue a decree granting probate and Letters Testamentary. Only then can the Executor  gather the assets and distribute them according the directives in the will.  

When a person dies without a will (intestate), the process is similar. 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. As with a probate proceeding, all interested  parties must be given notice and must either sign a waiver or be served with a citation issued by the court. The Court will then issue Letters of Administration appointing them as Administrator.  

By creating and funding a revocable trust, your beneficiaries will avoid having to go through  this probate process. This avoids the attendant costs and delay, which can be substantial if  there is a will contest or hard to find relatives. Additionally, because of the backlog created  by the pandemic and the recent ransomware attack on the Suffolk County government this  past fall, the courts are extremely behind.

Even “straightforward” probate matters take months, even years, to make their way through the court system. This explains why more and more people  are deciding to create revocable trusts so that their spouses and children can inherit their  estate seamlessly, free from court interference. 

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.

The Medicare program is administered jointly by the state and federal government. Medicare is available to adults 65 years of age and older, or to anyone under the age of 65 who is entitled to Social Security Disability. 

Medicare provides varying levels of medical coverage, depending on the plan you have. Medicare Part A and Part B, two of the more basic plans, provide coverage for hospitalization stays, rehabilitation, physical therapy, routine doctor visits, and medical equipment. Medicare Part A will also cover the cost of hospice care with a terminal diagnosis of less than 6 months. 

It is important to note that Medicare will not pay for long term services in a facility or services received at home on a long term basis. For example, if you fall and require surgery, you may need rehabilitation in a facility before able to safely return home. In this case, as long as all requirements are met following the hospital stay, Medicare Part A will cover the full cost of the first 20 days in a rehabilitation facility. For days 21-100, there is a co-pay per day if the patient continues to need rehabilitation services. 

If you have a supplemental insurance policy or commonly referred to as a “gap” policy, this may help ease the cost of the daily out of pocket co-pays. After Medicare stops paying, the full cost of the nursing home falls on the patient. This can cost can be upwards of $600 per day.

As you can see, coverage for rehabilitation under Medicare Part A is intended to be short-term. The goal is improvement of acute conditions through rehabilitation and skilled nursing care. While given up to 100 days, patients rarely qualify for this full amount. After admittance to a facility, the patient is evaluated periodically. Once the facility determines that the patient no longer needs skilled care, coverage under the Medicare program ends.

The most important piece to understand is the difference between skilled care and custodial care. Medicare does not cover custodial care. There are many circumstances where the patient does not fall into the category of needing rehabilitative or skilled care, but the family cannot bring their loved one home safely. Medicare does not pay for time to set up a discharge plan. Once Medicare terminates coverage, the patient needs to return to the community or start privately paying for care.

As you enter the arena of Medicare and with unpredictable times, education is key. It is important to meet with your Elder Law attorney to discuss future care plans and options for aging in place successfully.

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.

When the SECURE Act passed in 2019, the biggest impact on estate planning was the elimination of the “lifetime stretch” for most beneficiaries of individual retirement plans (IRAs). 

Before the SECURE Act, a beneficiary of an IRA had the option to take distributions over their own life expectancy. This allowed families to pass down tax-deferred accounts and accumulate wealth tax free across generations. Now, the only beneficiaries eligible for the stretch are spouses, disabled or chronically ill individuals, minor children of the plan owner, and those not less than ten years younger than the plan owner. For non-eligible beneficiaries, the 10-year rule applies. This rule requires that the beneficiary withdraw the entire inherited retirement account within 10 years.

The new SECURE Act 2.0, passed on January 1, 2023, brought new rules and clarifications. The original SECURE Act was silent on whether the 10-year payout rule required distributions on an annual basis. SECURE Act 2.0 clarifies that the beneficiary must take out at least the required minimum distribution each year, with a full payout by the tenth year. Luckily, anyone who inherited an IRA before the clarification will not be penalized for failure to take out the required minimum distribution. 

SECURE Act 2.0 has brought relief for stranded 529 Plans. Unused 529 funds can now be rolled over into a Roth IRA without a penalty. Beginning in 2024, the beneficiary of a 529 Plan can roll funds (capped at $35,000.00) into a Roth IRA. It used to be that a 10% penalty was imposed, and the withdrawals taxed if not used for qualified educational expenses. To qualify, the 529 account must have been open for at least 15 years. Keep in mind that there is a limit to the annual contribution amount, which is currently set at $6,500 for 2023. So it would take five years to move the maximum amount allowed into the Roth.

The new SECURE Act also fixed the issue of leaving a retirement account to a Supplemental Needs Trust. The Supplemental Needs Trust was not being afforded the lifetime stretch if the remainder beneficiary was a charity. SECURE Act 2.0 allows for a charitable remainder beneficiary without the loss of the stretch for the primary disabled beneficiary.

Another boon is that the age that a person must start taking their required minimum distribution has increased to 73 from 72. The penalty for not taking timely distributions has also decreased. For those 64 or younger, SECURE 2.0 increases the minimum age to 75 starting in 2033. This allows individuals to keep money in their retirement accounts longer, allowing it to grow without incurring taxes on withdrawals.

The SECURE Act and SECURE Act 2.0 have made major reform to longstanding retirement planning. It is advisable to speak with your estate planning attorney to discuss if these changes warrant updates to your estate plan.

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.

Each year, the Department of Health will release updated resource and income levels for the  Medicaid program. This year there has been a significant increase. Beginning January 1, 2023,  New York State will be increasing the asset limits for community and nursing home Medicaid and income limits for community Medicaid. 

For both community (home health aides) and chronic (nursing home) Medicaid, the available  asset limit for 2023 is being increased to $28,133 for an individual applicant (the former asset  limit for 2022 was $16,800) and $37,902 for a married couple (up from $24,600), allowing  Medicaid applicants to retain significantly more assets and still be eligible for Medicaid.  

The income limit for community Medicaid applicants is being increased from $934/month to  $1,563/month for individual applicants and for married couples the income limit is being  increased from $1,367/month to $2,106/month. There is an additional $20.00 disregard that  can be added to each allowance; therefore, the total of income allowance for an individual  applying for Medicaid can have $1,583/month and married couples can have $2,126.00. 

Under  this program, any excess income can be directed to a Pooled Income Trust for the benefit of  the Medicaid applicant and the monies deposited into the trust can be used to pay the  household expenses of the Medicaid applicant. In New York, all Pooled Income Trust are  managed by charitable organizations. It is important to use the monies in the Pooled Income Trust because when the applicant passes away, the balance goes to the charity.  

As for nursing home Medicaid applicants, the monthly income limit will continue to be $50, but the income limit for the non-institutionalized spouse is being increased to $3,715/month.  Additionally, federal guidelines permit community spouses to retain up to $148,620 in assets plus a primary residence with a maximum value of $1,033,000. 

Even if the community  souse has assets and income over the threshold, New York’s spousal refusal provisions provide even more protection in that a community spouse can elect to sign a document  which allows them to retain assets in any amount, including assets which were previously in the name of the spouse that requires care in a nursing facility. 

Individuals applying for Medicaid benefits after January 1, 2023, should apply based on the  asset and income limits discussed above. For those individuals who are already receiving  community Medicaid and are using a pooled trust for their excess monthly income, your  monthly budget/spend-down will remain the same until you recertify, at which time the  increased income limits will be applied. 

However, starting in January 2023 Medicaid  recipients may ask their local Medicaid office to re-budget their spend-down based on the  new income limits before their next renewal, enabling community Medicaid recipients to  keep more of their monthly income sooner. It is advisable to consult an elder law attorney  in your area to determine if a re-budget is appropriate in your case.  

While the asset allowance has been increased, keep in mind that the five-year look-back  period for nursing home Medicaid still applies, which means that any transfer of assets made  within this period for below market value will incur a penalty period and Medicaid coverage  will commence only after the penalty period has elapsed. Typically, there is always  Medicaid planning that can be accomplished even if the individual immediately needs  Medicaid coverage and has done no pre-planning. 

*Please note, the income and assets are based on the 2022 Poverty Level. This is subject to  change based on the 2023 Poverty Level. 

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.

Various types of property, such as bank accounts and real estate, can be owned jointly with another person(s). Depending on the type of joint ownership, the property may pass automatically to the joint owner, outside of probate and those named in the will.

A will only governs assets in the decedent’s sole name that do not have a designated beneficiary. For example, if a co-owner of a checking, savings, or deposit account were to pass away, the account would automatically become solely owned by the surviving owner, outside of probate, and the will of the deceased owner would not apply.

Real estate can be jointly owned in several different ways, each coming with a different set of rules:

Joint Tenancy: Also known as “Joint Tenancy with Rights of Survivorship,” Joint Tenancy provides that upon the death of a joint owner, that owner’s share automatically goes to the surviving joint owner and does not pass through probate and is not governed by a will. 

For example, if Mary and Bob owned property as Joint Tenants and Bob passed away, Mary would automatically become the sole owner even if Bob’s will directed that all his property should pass to his children. When Mary passes away the property would pass according to her will since she is now the sole owner. The main advantage of Joint Tenancy is that it avoids probate upon the death of the first Joint Tenant and probate (the process by which the court verifies the validity of a will) is typically costly and takes several months to complete.

Tenancy by the Entirety: Tenancy by the Entirety is a type of joint tenancy only available between spouses and is valid in a few states including New York. As with Joint Tenancy, upon the death of the first spouse their interest automatically passes to the surviving spouse outside of probate and is not governed by their will. 

In addition to avoiding probate, Tenancy by the Entirety provides several protections in that one spouse cannot mortgage or sell the property without the consent of the other spouse, nor can the creditor of one spouse place a lien or enforce a judgment against property held as tenants by the entirety. 

Tenancy in Common: Here, there is no right of survivorship and each owner’s share of the property passes to their chosen beneficiaries upon the owner’s death. Tenants in Common can have unequal interests in the property (e.g. 50%, 40%, 10%) and when one Tenant dies their beneficiaries will inherit their share and become co-owners with the other Tenants. 

A Tenant in Common’s share will pass according to their will (if they have one) which means the nominated Executor will have to probate the will by filing a petition with Surrogate’s Court. However, a Tenant in Common can still avoid probate if their share of the property is held in trust, in which case the terms of the trust (rather than their will) would control how the property passes at death and no court involvement would be needed.

A comprehensive estate plan with an experienced attorney ensures that probate and non-probate assets work in harmony. In addition, there are capital gains consequences when transferring ownership interests during your lifetime — and such “gifts” should never be done without consulting an attorney or accountant. 

One of the biggest problems we see with DIY wills is the testator failing to account for the different types of ownership and what assets pass through the will.

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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