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Revocable Living Trust

AARP agrees that utilizing a revocable living trust is the new thing! Revocable living trusts provide savings opportunities, save probate expenses, and provide other advantages over a will.

What is a revocable living trust?

It is a relationship established between three parties:

    1. The creator of the trust;
    2. The trustee who manages the property within the trust and distributes proceeds to beneficiaries; and
    3. The beneficiaries who receive the property according to the terms of the trust.

A revocable living trust allows assets within the trust as well as income generated by those assets to be managed and distributed by the trustee. The trust income and property are then distributed in accordance with the terms and conditions of the trust. This type of trust is referred to as a living trust because it is established during the life of the creator.

How does one benefit from a revocable living trust?

A revocable living trust provides numerous benefits to the creator. If the creator becomes incapacitated, the trustee is typically authorized to manage all of the assets within the trust as well as any obligations in accordance with the terms of the trust without court intervention. A revocable living trust will also provide financial assistance to family members if the creator becomes incapacitated. Upon the death of the creator, the trust transfers assets outside of the estate and outside of probating a Will. A living revocable trust can also be structured to minimize federal or state tax consequences. A revocable living trust also allows the creator to act as trustee, either with their spouse or without their spouse, or even revoke or modify the trust prior to death.

How does a revocable living trust compare to a will?

Both a revocable living trust and a will are tools that provide a method of passing property and other assets to family members and loved ones. However, a revocable living trust avoids the probate process, whereas a will does not. Unlike a will, a revocable living trust does not need to be administered by a probate court. By avoiding probate, an estate can essentially save numerous costs and assets will be distributed faster to family members and loved ones. In addition, a revocable living trust protects the privacy of the decedent as well as their finances. While court documents and the probate process are a matter of public record, a revocable living trust is handled outside of probate and is therefore kept private.

The attorneys at Hobson-Williams, P.C. are skilled in all aspects of elder law and are dedicated to representing clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Hobson-Williams, P.C. for a consultation by calling them at 866-825-1LAW or vising them at www.thobsonwilliamslaw.com.

Keeping Your Will Updated and Naming Beneficiaries on Assets

A Last Will and Testament is an important estate planning document that contains provisions for assets and the distribution of property upon death. Unfortunately, many individuals fail to account for assets that do not pass directly under a Will. These assets may include life insurance policies, pensions, IRAs, and 401(k) or 403 plans. After the policyholder of these assets dies, the policies may distribute the benefits to their heirs at law if there is no beneficiary designation and no Last Will and Testament. Following major life events, such as marriage, divorce, change of employment, disability or death of a spouse, individuals should create or update their Last Will and Testament and their beneficiary designation forms on retirement benefits or other assets.

 

A life insurance policy is a financial instrument that pays out a sum of money either on the death of the policyholder or after a set time. A policyholder must designate a beneficiary of the policy proceeds when he or she passes away. If the individual fails to update their policy, especially following a major life event, an unintended party, such as a former spouse, may end up being the sole beneficiary. For this reason, it is best for policyholders to consistently amend and update polices to align with their wishes for the future. A policyholder may be able to name their estate as a beneficiary, to have the policy’s proceeds pass under a Last Will and Testament and divided amongst the individual’s designated beneficiaries. However, if the proceeds become part of the insured’s estate, they are not exempt from the estate’s creditors and are subject to probate.

 

Generally, if the deceased names a beneficiary for a pension, IRA or a qualified retirement plan such as a 401(k) or 403 plan, it will not be subject to probate and thus the terms of a Will do not control. Once an individual dies, the beneficiary named on the policy or IRA will be entitled to the funds remaining in the account. To access the funds, the beneficiary makes a claim and the IRA/Pension/Insurance policy makes a payment or a series of payments to that person.

 

However, complications arise when individuals fail to keep beneficiary designations up to date or fail to name a beneficiary at all. If an individual does not name a beneficiary, the funds will be payable to the estate and subject to probate for distribution. The probate process could result in delays, reducing the amount of funds received by the beneficiaries and limiting payout options. It is important that, if the individual gets married, has children, or gets divorced, he or she updates their beneficiary designations. If an individual dies without changing a plan’s designation from a former spouse, his or her ex-spouse will be entitled to its contents, even if the ex-spouses haven’t spoken in years or if the ex-spouse remarried. It is important to also update the retirement accounts if a beneficiary passes away. If a beneficiary dies before the account holder, it would be construed as if there were no beneficiary named and the account’s funds would most likely be payable to the estate and subject to probate.

 

Neglecting to update a Will, life insurance policy, and retirement accounts when major life events occur may lead to unwanted outcomes. It is important that individuals review these documents regularly to ensure that it reflects their current situation and wishes for the future. If you or a loved one needs assistance with reviewing a Will or another estate planning matter, look to the experienced New York estate planning lawyers at Hobson-Williams, P.C. The firm’s attorneys will help you establish an estate plan that is reflective of your current wishes and will help ensure your assets will pass as intended. For more information or to schedule a consultation, call contact our New York estate planning law firm at (718) 210-4744.

Health Care Proxies and Power of Attorney

A Health Care Proxy is a document that designates an agent to make health care decisions on an individual’s behalf in the event that he or she is unable to do so. Federal regulations, such as the Health Insurance Portability and Accountability Act (HIPAA), protect the confidentiality of an individual’s medical information as well as their ability to make health care decisions. The establishment of a Health Care Proxy and the HIPAA release form are the best means of carrying out health care decisions on behalf of loved ones.

A signed Health Care Proxy must contain specific language that allows an agent, the appointed medical care representative, the ability to act on behalf of the individual, or principal. For instance, if the principal would like the agent to be able to access his or her medical records, then the Health Care Proxy should explicitly state just that. Additionally, the signing of a new Health Care Proxy overrides any previously executed proxy. This is important to note because if the principal has a comprehensive Health Care Proxy, but signs a basic Health Care Proxy while at a hospital, it will essentially revoke his or her comprehensive Health Care Proxy that had been previously signed. This means that the comprehensive Health Care Proxy will no longer be a viable document and can no longer be used because it is not in effect.

Also, it is important to maintain a Durable Power of Attorney. A Durable Power of Attorney is important to have because, oftentimes, an agent is unable to deal with Medicare or Medicaid and other supplemental insurance companies without it.  You will also need a Durable Power of Attorney to handle financial affairs and to be able to act if the principal becomes incapacitated.  In these instances, a Health Care Proxy is not suffient and a Durable Power of Attorney is required for a third party to act on your behalf.

A Power of Attorney allows the principal to designate an agent to act on their behalf for financial matters. It is very important to have a valid Durable Power of Attorney prior to an individual becoming incapacitated because it alleviates the need to Petition the court for the appointment of a Guardian to handle the individual’s affairs when they become incapacitated.

In addition to a Health Care Proxy and a Durable Power of Attorney, individuals should also sign a HIPAA release form as well. This document allows anyone listed on the form to be able to access an individual’s medical records if needed. The HIPAA release form is accepted by most hospitals and doctor offices in the United States. By signing a HIPAA release form, it simplifies the process for obtaining medical records.

The attorneys at Hobson-Williams, P.C. are skilled in all aspects of elder law and are dedicated to representing clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Hobson-Williams, P.C. for a consultation by calling them at 866-825-1LAW or vising them at www.thobsonwilliamslaw.com.

Increase in the New York Estate Tax Exclusion

As of April 1, 2017, the New York State estate tax exclusion increased to $5,250,000 from the $4,187,500 exclusion amount in effect since April 1, 2016.  As of January 1, 2017, the federal estate tax exclusion is $5,490,000. The New York State exclusion amount will remain in effect until December 31, 2018 and, as of January 1, 2019, this amount will be indexed for annual inflation.

In 2000, New York state repealed its gift tax. For New York State residents, this meant that gifts made to family and friends over the course of their lifetime would not be included in their gross estate. However, in 2014, a three-year look back period was enacted for gifts made between April 1, 2014 and January 1, 2019. This means that a three-year look back will take place upon a resident’s death and any gifts made within that time period would be included in the estate for the purpose of calculating the estate tax in New York. There are certain gifts that are excluded from the three-year look back period. They are as follows:

  • Gifts made when the decedent was not a New York State resident.
  • Gifts made before April 1, 2014.
  • Gifts made on or after January 1, 2019.
  • Gifts that are taxed under a federal estate tax law.

In 2017, for federal gift taxes, annual gifts in the amount of $14,000 per person are allowed without having to report these gifts on a tax return. This also applies to New York State. Federal estate tax law contains a portability provision. This provision allows unused estate tax exemptions of a married tax payer to transfer to a surviving spouse.  In New York State, there is no portability provision within the estate tax laws. Without this provision, the way in which a couple maintains title to their assets may affect the amount of estate tax that will be paid in New York State upon a spouse’s death.

Even though the estate tax exclusion amounts are increasing, estate planning is still often necessary and complex. If you are looking to make changes to an estate plan or gifting strategy, it is important to contact an experienced attorney that concentrates their practice in these matters. The lawyers at Hobson-Williams, P.C. are skilled in all aspects of Trusts, Estates and Elder Law and are dedicated to representing its clients with diligence and compassion. Contact the experienced New York attorneys at Hobson-Williams, P.C. for a consultation by calling (718) 210-4744 or by filling out our contact form.

Voluntary Administration Proceedings for Small Estates

When a parent dies without a Will and leaves behind money (example $10,000) in a sole checking account, a proceeding would be governed by the small estate process. Not all estates require a full probate or an administration proceeding. If the deceased passed away after January 1, 2009 and has $30,000 or less in personal property, they are entitled to a voluntary administration proceeding, which is a simplified Surrogate’s Court procedure.

The small estates procedure cannot be used if the individual who passed away owned real property when he or she died. The process can be utilized if the deceased died with or without a Will or if they conveyed their property into a trust.  To start the small estates process, an Affidavit of Voluntary Administration must be filed. By filing the Affidavit of Voluntary Administration, a person is asking to be appointed as a voluntary administrator of the estate.

This individual may be nominated in the deceased’s Last Will and Testament, if one was created, or, if a Will is not available, the deceased’s closest living relative would be chosen. The individual who files the Affidavit is asking the court to allow them to collect the deceased’s assets, pay any debts, and distribute their personal property to those who have a legal right to inherit them, either in accordance with a Last Will and Testament or under the laws of intestacy if the individual died without a Will.

A Voluntary Administration proceeding is less complex than a full probate of the Will or an administration proceeding. In a Voluntary Administration proceeding, consent does not have to be given by the beneficiaries of the deceased’s estate. This helps to avoid Last Will and Testament contest, which can be a long and expensive process. Additionally, a Voluntary Administration proceeding helps to avoid litigation over the appointment of a fiduciary in a full probate or administration proceeding.

Even though a Voluntary Administration proceeding may be less complex than a full probate or administration proceeding, it is important to consult an experienced attorney to assist you in the process. The experienced attorneys at Hobson-Williams, P.C. are available to assist you with any concerns relating to Elder Law, Trusts and Estates. For more information or to schedule a consultation, contact our knowledgeable New York Elder Law attorneys at (718) 210-4744.

Negotiating Legal Fees

Questioning an attorney bill is not that uncommon in today’s world. In fact, state and local bar associations both consistently report that fee disputes are some of the most common complaints that they receive against lawyers. This has even led some states to start up certain attorney-client fee dispute programs to resolve the issues. While attorney fees are most certainly not cheap, it is important to remember that in most cases the fees are, indeed, justified.

Lawyers typically have a few different types of fees, those of which include fixed fees, conditional fee arrangements, contingency fees and their general hourly rates. Fixed fees are fixed prices that may include just the lawyer’s fees or some additional aspects of the service. Conditional fee agreements are a sort of “no win, no cost” agreement. If you lose your case, in general, you will not be required to pay a fee. However, you still may be held liable for some out-of-pocket expenses, such as court fees. If your lawyer agrees to represent you under a contingency agreement, they will be able to claim a certain percentage of any money they win on your behalf plus expenses.

It is important to keep in mind that when a lawyer is handling a case for you, they are helping to make your life easier. They eat, sleep and breathe your case from start to completion, handling stressors so you don’t have to. Essentially, your problems are now their problems. They work early mornings and late nights diligently to complete your case in a timely manner, and, if need be, will represent you in court.  When a lawyer is working on your case, they’re giving up time that could be devoted to other cases and the ability to earn money on other cases.  Lawyers are, no doubt, worth all the money they are asking and it is important to be respectful of their work when it comes to asking for a fee reduction. Lawyers know the true value of their work, and, if they are reputable, then they will not go out of their way to charge you an amount of money that is unfair. It is necessary to keep their hard work in mind, and someone asking them to lower their fees may come across as rude or insulting.

Lawyers are expensive, but you get a lot for your money. If you are unhappy with your attorney’s fees, the best way to go about handling the issue is to be open and honest. Explain why you are incapable of paying the fees, and if there are any other options for you. Many lawyers offer a variety of fee arrangements such as flat fees, deferred payments, reduced scale of representation or offer different payment plans. Lawyers may, oftentimes, have the ability to assign work to junior associates to keep costs lower, such as a combination of associates, paralegals or partners. However, if a high level of obligation is required for your case, the legal fee can only drop so much.  You never want an attorney working for you that is dissatisfied with the fee they receive.  How effective will a dissatisfied attorney be?  Reducing the cost of legal services past a certain point, may result in a reduction in the lawyer’s service to the client.

At Hobson-Williams, P.C., we understand that facing attorney fees may be overwhelming for some. Rest assured that our lawyers are on your side, and would never charge you more than what your case is worth. We are here to help you, and we will do everything in our power to get your life back on track for a price that is beneficial to everyone involved. Call us today at (718) 210-4744 for more information or to schedule a consultation.

Why Establishing a Durable Power of Attorney is Important

A power of attorney is an important estate planning document and can be an essential tool in ensuring that an individual’s wishes are carried out should he or she become mentally or physically incapacitated. A power of attorney is a standardized legal document that allows an individual, known as the principal, to designate a representative, known as the agent, to make financial decisions on their behalf if they become incapacitated or unable to act on their own behalf. A power of attorney specifies how much power an agent will have and can be created with limited powers, broad powers and can become effective upon the occurring of an event. Many individuals assume that regardless of whether it is limited or broad that the document will contain the same language and provisions. However, more often than not, this presumption is incorrect and may lead to issues in the future.

A durable power of attorney gives an agent essentially the same powers as the principal. The term “durable” means that the power of attorney will still be effective even if the individual becomes incapacitated or subsequently disabled. A power of attorney goes into effect as soon as it is signed and notarized. The principal may specify that the agent cannot use the power of attorney unless he or she becomes incapacitated or unable to act for themselves. However, if this stipulation is not specified, the power of attorney may be able to utilize his or her power prior to those circumstances.

Some individuals seek to establish a power of attorney that is effective upon a triggering event, such as incapacitation. However, there are several unforeseen issues that may arise if this type of power of attorney is created. One issue that may arise is that the agent may need to show an affidavit that states that the triggering event has occurred prior to them utilizing the power of attorney. Another issue that may arise is that regardless of the law stating that the agent can make financial on behalf of the principal with the affidavit, banks and other institutions may be hesitant to grant the agent his or her power under this type of power of attorney.

Many individuals believe that by establishing a power of attorney his or her agent has broad gifting power. Usually, when someone establishes a statutory power of attorney that is not the case or, in some instances, it will not allow an agent to make a gift in excess of $14,000 per person, per year. When a power of attorney does not include a statutory gift, rider authorizing major gifting power, it may result in an agent being unable to transfer assets.  This may result in the Principal being unable to transfer funds to be eligible for Medicaid or to receive reductions in estate tax. Furthermore, a broadly drafted power of attorney with language permitting an agent to create a revocable or irrevocable trust on behalf of the creator can save a tremendous amount of money in the future, whether it is for estate planning or long-term care planning purposes.

In New York State, an agent is permitted to gift and transfer assets to themselves and others.  However, this is only allowed if the power of attorney clearly states that the agent can do so. This is referred to as a statutory gift rider, also known as a gifting clause. By establishing a power of attorney with a gifting clause, it allows an agent to make gifts or transfer assets for purposes such as long-term care planning or to meet estate and income tax needs.

A common question people ask regarding the establishment of a power of attorney is, will the principal lose control of his or her finances and assets after the legal document is established? The answer is “perhaps”. The principal still has the right to control his or her financial resources and properties. However, with the establishment of a power of attorney, the principal allows the agent access to their finances without permission. For this reason, it is important that individuals choose an agent they trust who will not be dishonest or unscrupulous with the assets.

For individuals seeking to establish a power of attorney, it is important that they consult an experienced estate planning lawyer who will draft the document to meet your current and future needs and wishes. The elder law and estate planning attorneys at Tanya Hobson-Williams, PC are skilled in all aspects of estate planning and are dedicated to representing its clients with diligence and compassion during emotional times. Contact the experienced New York estate planning and elder law attorneys at Tanya Hobson-Williams, PC for a consultation by calling (718) 210-4744 or by filling out our contact form

New York Homeowners May Be at Risk of Losing Foreclosure Help

Last year, the foreclosure rate in New York State surged and today thousands of residents are at risk of losing their homes. It was recently announced that state-funded resources that provide foreclosure assistance will not receive funding as of October 2017 and will stop accepting clients as of this spring. Currently, there are no plans to replace the funds allocated to foreclosure assistance. Some warn that the lack of foreclosure resources for New York residents can have devastating effects, leading to homelessness and homeowners falling victim to scams.

 

Newsday reported that in 2016, there were nearly 33,000 new foreclosure filings across New York State. According to Legal Services NYC, New York City saw more than 7,500 foreclosure filings and more than 50,000 pre-foreclosure notices were sent to city residents during the year. New York City neighborhoods that have been hit hard by foreclosure are southeast Queens (including Jamaica, Ozone Park, and Saint Albans) and eastern Brooklyn (including East New York, Canarsie, and East Flatbush). Parts of the Bronx (including Highbridge, Crotona, and Fordham) have the highest foreclosure rates in the city, according to the Center for New York City Neighborhoods. More than 8,000 foreclosures occurred on Long Island, a number higher than that in 2007, when the financial collapse occurred, according to Empire Justice Center.

 

Currently, there are 32 state-funded entities that provide help to homeowners who need loan modifications or other forms of foreclosure assistance. However, New York residents may be in jeopardy of losing this support network. Since 2012, the New York State Attorney General’s office has committed $100 million to help New York residents avoid foreclosure on their homes. The initial funding came from the Attorney General’s settlement with the big banks over deceptive practices that led to the financial crisis. However, that settlement money now goes directly to the state’s coffers instead of the Attorney General’s office.

 

As of October 1, 2017, the entities that provide this help to homeowners in need will no longer receive funding. In Governor Andrew Cuomo’s initial 2018 budget, he has not included any money to replenish these foreclosure service funds.  Advocates are pushing for state officials to provide the $10 million for the remainder of fiscal year 2017 and an additional $20 million for 2018.

 

In anticipation of the lack of funding, state-funded entities will stop taking new clients this spring because the casework is so labor-intensive and it takes a long time to resolve. With the lack of foreclosure assistance resources, nonprofit entities will be unable to help New York homeowners save their homes using loan modifications and settlements. As a result, more people are likely to lose their homes to foreclosure and New York neighborhoods will be negatively impacted by the economic domino effect. New York homeowners may also be at greater risk of falling victim to scams. Oftentimes, these organizations can detect when a homeowner has been a victim of a scam and provide assistance.

 

At Hobson-Williams, P.C., we understand that facing foreclosure can be a difficult and overwhelming experience for homeowners and their families. Our foreclosure defense lawyers can negotiate with mortgage companies on your behalf to help save you time, money, and, ultimately, your home. If you are facing foreclosure on your home, call our New York foreclosure defense law firm at 1-866-825-1529.

 

Tracking down a Retirement Account

Many individuals have worked for different companies throughout the years and may have had a 401(k) plan worth a small amount of money when they left.  Some people lose track of these accounts over the years or find that their plan was transferred to another administrator. Sometimes, in such a case, the administrator may not be able to locate the plan.  Unfortunately, there is no central repository for missing 401(k) funds to date.

 

The Pension Benefit Guaranty Corporation is responsible for safeguarding traditional pensions.  There is a proposal by the Pension Benefit Guaranty Corporation to hold orphaned 401(k) funds from closed plans which would start in 2018.  Senator Steve Daines and Senator Elizabeth Warren proposed that the IRS establish an online database that would allow individuals to locate 401(k) plans and pension plans from open and closed accounts.

 

If an individual’s 401(k) balance was less than $5,000 at the time they left a company, it is possible that a forced IRA transfer took place.  This means that the money would be housed with a small accounts financial services firm.  When an employer cannot locate an individual and they proceed to close the account, the money may be transferred to a bank account, IRA, or state escheat office.  If this took place, a person has the option to contact the state escheat office to locate the unclaimed money. Another option is, if the employer is still in business, an individual may contact them directly to see what happened to the account.  Further, if the company no longer exists, the United States Department of Labor may be able to help track down the money.

 

Tracking down lost retirement accounts can be a tedious process.  That is why it is of utmost importance to always keep track of retirement plans. There are many instances when employers may allow their employees to transfer old 401(k) accounts into their plan, or roll the money into an IRA. It is important to hold onto retirement money and consistently keep track of it, rather than attempting to locate it years later.

 

Maintaining good records is an important aspect of estate planning. If you or a loved one needs assistance tracking down a retirement account, or any other aspect of estate planning or elder law, contact the experienced elder law attorneys at Hobson-Williams, P.C. for the representation you deserve and to ensure that your future plans are carried out. Call us today at (718) 210-4744 for more information or to schedule a consultation.

 

How Joint Accounts and Gifting Affect Medicaid Eligibility

As individuals begin to age, long-term care services and how to finance them become major concerns. Many turn to Medicaid to pay for their long-term care needs. Medicaid is a joint Federal and State funded program that provides medical insurance and long-term care payments on behalf of middle- to low-income individuals, including those who are elderly and disabled. However, since Medicaid eligibility is determined by the combined value of income and assets, gifting money and joint accounts may impede a person’s ability to secure Medicaid benefits.

 

Whether a penalty period results from the transfer or gifting of money to another person depends upon whether the individual is applying for Chronic Care Medicaid or Community Medicaid. For Chronic Care Medicaid, which provides coverage for long-term care services in a nursing home facility, there is a five-year look-back period. This means that, if an individual transfers or gifts money within five years of applying for Chronic Care Medicaid, he or she will face a penalty period. For Community Medicaid, which provides support for long-term care in the home, there is no look-back period when applying for coverage and the applicant will not face a penalty period for transferring or gifting money.

 

Joint accounts may also hinder an individual’s ability to secure Medicaid benefits. When an individual applies for Medicaid coverage for long-term care services, the state will assess the person’s income and assets to see if they qualify for public benefits. Even though the bank account has two names on it, the state presumes that the content of the joint account belongs to the Medicaid applicant, regardless of who contributed money into the account. The state will presume that the account belongs to the Medicaid applicant unless it is proven that the individual did not contribute money into the account. If the Medicaid applicant is unable to overcome the presumption, then 100 percent of the account’s contents are considered to belong to the Medicaid applicant.

 

Whether the state presumes that all contents of a joint account belong to the Medicaid applicant depends upon what type of joint account it is. If the account is a convenience account, the entire account will be presumed to belong to the applicant. However, if the funds are placed in a joint stock or brokerage account, then there is no presumption that the account belongs solely to the Medicaid applicant. In this instance, each individual is presumed to own half of the joint stock or brokerage account.

 

Individuals who are applying for Community Medicaid may be able to eliminate income over the state income limit by placing the excess income into a Pooled Income Trust.  When applying for Community Medicaid, an applicant’s resources may be “spend down” by placing them into a trust or by making transfers. Under current Medicaid regulations, there are certain asset transfers into trusts that may be identified as exempt income when determining Medicaid eligibility.  Transferring assets should never be done without first consulting a qualified Elder Law attorney familiar with transfer of assets rules.

 

As you or your loved ones reach retirement age, it is important to determine what long-term services you will need and how you will pay for them. The New York Elder lawyers at Hobson-Williams, P.C. are experienced in assisting elderly and disabled individuals meet Medicaid income eligibility standards and will help establish trusts and assist with exempt transfers to protect their assets. For more information or to schedule a consultation, call our New York elder law and estate planning office at (718) 210-4744 or fill out our contact form.