14955448 sbroken contract 300x244 The Perils of Inconsistencies Between Divorce Decrees and Beneficiary Designations.   The standard language in divorce decrees regarding each party’s obligation to maintain life insurance for the children of the marriage is, in many instances, not sufficient to protect the intended beneficiaries.  To avoid such pitfalls, it is recommended that the two parties negotiate the beneficiary designation language to help insure that the divorce decree accurately reflects what is intended, and precludes either party to the agreement from unilaterally changing the intended results.  The following examples highlight the perils of ignoring this recommendation.

Example 1: The Lincoln National Life Insurance Company v. Ruybal, 2014

-In 2002, Rudolpho Ruybal and his wife, Valerie Gomez, divorced.  In their divorce decree, they agreed to relinquish any rights to each other’s life insurance policy.  Additionally, they agreed to retain their current policies, naming their children as beneficiaries.

- Rudolpho had group term life insurance coverage through his employer.  The employer changed the carrier issuing the coverage three times, once in 2004, once in 2007, and once in 2009.

- In 2007, Rudolpho submitted a changed beneficiary designation form, designating his sister, Jacqueline, as beneficiary.

- Upon his death, Jacqueline and Rudolpho’s children made competing claims on the policy’s insurance proceeds, and litigation ensued.

- The Colorado district court focused on the specific divorce decree language requiring the spouses to keep their existing insurance policies payable to the children.  Technically, Rudolpho had not taken any steps to change policies, thus abiding by the terms of the decree.  Rather, his company changed carriers.  The court deemed that the policy under the new carrier was different than the existing policy at the time of Rudolpho’s divorce.  Therefore, the new beneficiary designation was deemed valid, and Jacqueline was awarded the proceeds.

Example 2: Hearing v. Minnesota Life Insurance Company, 2014

-  Jon Holloway was divorced in 1998.  The divorce decree required that he maintain $100,000 of life insurance for his daughter, Nikole.  Nikole was nine at the time.

- Despite the decree, Jon purchased a $100,00 life insurance policy in 1998, designating his sister, Joetta Hearing, as beneficiary.  Jon may have intended to keep his ex-wife from exercising any control over the insurance money if he died while Nikole was a minor.

- Approximately nine months before he died, Jon sent Nikole a note stating that he wanted her to get most of the insurance money.  However, he never revised his beneficiary designation form.

- Upon his death, both Nikole and Joetta filed claims for the insurance money, and litigation ensued.

- Applying state law, the Iowa district court stated that a beneficiary designation is valid unless

. the deceased expressed a clear intention to change his beneficary designation and

. he did all he could to notify the insurance company of his intention to change beneficiaries.

- Since he had not revised his beneficiary designation form, Jon had not met the second requirement.  Consequently, the court ruled in favor of his sister, Joetta, despite Jon’s note to his daughter.

Conclusion:

The above two cases indicate the power of the beneficiary designation.  The courts ruled in both cases that the named beneficiaries were entitled to the death proceeds, despite the competing claims arising from the obligations originally created during divorce proceedings.  As noted in our introduction, careful structuring of the language in a divorce decree is critical for protecting your interests and those of your children.

Attorney Elga A. Goodman specializes in estate planning and elder law.  She can be reached at 973-841-5111.

 

 

 

 

 

 

 

 

 

 

 

 

{ 0 comments }

6612092 sarguing couple 300x210 If You Do Not Want Your Executor to Receive a Commission, Put It In Writing!Unfortunately, when a loved one dies, arguments may arise among the heirs to the estate (also known as the beneficiaries).  One potential area of dispute may involve a commission due the Executor for serving in that capacity.  The following is a brief overview of the Executor’s role, and an example of the type of problem that may surface.

Overview

Many of us have accumulated assets over the years (for example, a house, stocks, jewelry, and personal mementos).  When you prepare a Will, you can specify how you want these assets (your “estate”) distributed once you’re gone.  Also, in your Will, you can designate the Executor(s) – the person, persons, or entity responsible for “settling” the estate in accordance with the terms of your Will.

Among the key things the Executor must do is

- identify all the assets left upon your death, determine the value of those assets, gather the assets, and protect them.

- use the assets to pay off all your debts and expenses, including all outstanding federal and state taxes.

- distribute to the beneficiaries whatever assets remain after all debts, expenses, and taxes have been paid.

Disputes Among  Beneficiaries

As the above suggests, the Executor’s responsibilities may be very time consuming.  Settling an estate may often take one or more years.  Under the law, an Executor is entitled to receive a commission for his efforts.

However, if you do not want your Executor to receive a commission, you should state that in your Will.  If you neglect to do so, circumstances may arise that result in disputes among beneficiaries.

Example:

Upon the death of their mother, Susan and her two brothers, Jack and Robert, became the sole beneficiaries of their mother’s estate.  In their mother’s Will, Jack was designated as Executor, and he was instructed  to divide the estate equally among the three siblings.  Problems arose when, upon fulfilling his Executor responsibilities, Jack presented his siblings with a written accounting as required by law.  The accounting specified how the estate was settled, including all expenses, debts, and taxes paid out, the inheritance each of the siblings would receive, and the commission due Jack from the estate for serving as Executor.

Susan and Robert were outraged.  They clearly remembered their mother saying that she did not want Jack to collect a commission for serving as Executor.  The problem was that their mother never included this information in her Will.  So, under the terms of the existing Will, Jack was entitled to the commission.  Many heated arguments ensued.  Jack did ultimately collect his commission, but Susan and Robert never forgave him!

It’s not enough to inform family and friends of your intentions.  To help preempt feuds after you’re gone, you need to make sure that your Will accurately reflects your wishes.  Once you’re gone, you won’t be able to correct mistakes or omissions.

Getting Legal Help

Experienced Estate Planning Attorney, Elga A. Goodman, can help you with all your estate planning needs.  She can work with you to help insure that your Will  accurately reflects your intentions.  Contact us today at 973-841-5111.

 

 

 

{ 0 comments }

6015186 sPOWER OF ATTORNEY FORM 200x300 My Authority Under the The Power of Attorney Ended? One important aspect of estate planning involves the Power of Attorney (POA).  Much confusion abounds regarding when POAs stop being in effect. We hope the following discussion will help clarify this issue.

Generally speaking, the POA is a legal document whereby one person (the principal) authorizes another person (the agent) to act on the principal’s behalf while the principal is alive.  Typically, POAs involve matters of financial management.  POAs can be written to give the agent broad, general powers or limited powers for specific situations only.  The POA is frequently used in the event of a principal’s illness or disability, or when the principal can’t be present to sign necessary legal documents for financial transactions.

So, for example, Mary Jones has a POA designating her son, Michael. as her agent.  Her specific POA gives her son broad powers.  Mary becomes disabled and needs to move into a nursing home.  Some of her assets must be sold to finance her new expenses.  As her agent, among other things, Michael proceeds to

- sign the contract with the nursing home.

- sell Mary’s home.

- sell some of her stocks and bonds.

- pay all of Mary’s bills on a monthly basis.

- pay Mary’s federal and state taxes.

Two years later, Mary passes away.  As noted above, a POA is only in effect while the principal is alive.  Upon her death, Mary’s POA, designating Michael as her agent, ceases to be in effect.  

Now that Mary is deceased, her estate will become the responsibility of the Executor (designated by Mary in her Will, or, if no Executor was named, then appointed by the surrogate court).  We will discuss the role of the Executor in a future article.

The important point here to remember is that an agent’s POA authority stops once the principal is deceased!

Getting Legal Help:

Experienced Estate Planning Attorney, Elga A. Goodman, can help you understand the various aspects of estate planning and can work with you to create the right plan for you and your family.  Contact us today at 973-841-5111.

 

 

 

 

 

 

 

{ 0 comments }

21167755 s 1happy elder couple 300x200 CCRC: An Alternate Long Term Care Option for Baby BoomersTimes change….  That’s a given.  And, for those of us at or approaching retirement, how we expect to live out our senior years has certainly changed.  In the not too distant past, many seniors could expect to live with adult children or other loved ones as their abilities to care for themselves diminished.  But, in today’s world where seniors are living longer and families are overextended in many ways, including financially, such expectations are often unrealistic.

In approximately the past 15 years, Long Term Care Insurance has gained prominence as an option.  This type of insurance aims to cover all or a large part of costs associated with home health care, assisted living, nursing homes, and other long term care services that may arise. These services are typically not covered by traditional health insurance or Medicare.

Now, another care option is gaining the attention of older, financially secure adults.  The Continuing Care Retirement Community (CCRC) offers a somewhat different approach for seniors.  Usually restricted to individuals aged 55 and older, CCRCs offer a sort of one stop shopping arrangement often referred to as “aging in place.”  Requiring a sizable up-front entry fee plus basic monthly fees, individuals start off living independently in houses, apartments, or condos.  The independent living arrangement may include a variety of recreational options and communal activities for active residents.  However, if residents require assitance with daily living as they age, CCRCs provide such services, including nursing home care as needed.  No need to leave the community and make other arrangements.  No need to worry about space availability.  The  CCRC will care for you on location, placing you, as needed, in the appropriate facility within the community.

Of course, when considering such options it is critical that you carefully review the terms of the contract.  Marketing brochures and other sources of information won’t necessarily tell you everything you need to know.  Will you get back any or all of your up-front CCRC payment if you change your mind and decide to leave?  How are increases over time, if any, determined?  Who makes the decision as to when additional services/living arrangements are needed?  Do your heirs inherit any of the upfront CCRC payment?  What happens if your financial assets are depleted during your residency?  Contracts must spell out exactly what you will and won’t get.  So, be sure to read them carefully, ask questions, and, if you’re still uncertain about terms and conditions, it’s highly advisable to seek assistance from a professional such as an attorney or financial advisor.

Getting Legal Help

Experienced Estate Planning and Elder Care Attorney, Elga A. Goodman, can help you explore elder care options and understand contractual terms and conditions.  Contact us today at 973-841-5111

 

 

 

 

{ 0 comments }

The National Academy of Elder Law Attorneys (NAELA) has designated May National Elder Law Month.  Below is a recent article that appeared in the NAELA: Eye on Elder and Special Needs Issues newsletter.  It addresses disturbing new hospital practices that may severely impact medicare patients.

May 2014


Observation Stays in the Hospital: The Impact on Medicare Beneficiaries

By Judith Stein, Esq.

In December 2013, Ms. M., 99, was found on the floor in her assisted-living apartment. She was sent to the hospital and treated for a broken shoulder. She stayed at the hospital for three nights, but instead of being deemed an “inpatient,” she was considered to be under “observation.” As a result, she had to pay $300 a day for subsequent skilled nursing facility care that otherwise would have been covered by Medicare.

The Problem
Under the Medicare statute, an individual must have an inpatient stay in the hospital of at least three consecutive days, not counting the day of discharge, in order to meet Medicare criteria for coverage of post-acute care in a skilled nursing facility (SNF). Unfortunately, like Ms. M., many Medicare beneficiaries are being denied access to Medicare coverage of SNF stays because of the growing use of “observation status” in the hospital setting. Pursuant to this practice, hospitals classify patients as “outpatients” receiving observation services rather than admitting them as inpatients.i

Care received by patients in observation status is often indistinguishable from care received by inpatients. But the designation of a patient as an outpatient (covered under Part B of Medicare) vs. an inpatient (covered under Part A) can result in beneficiaries being charged for some services received in the hospital that would otherwise be covered, including their prescription medications. Further, the most vulnerable patients will be responsible for their entire subsequent SNF stay, having not satisfied the statutory three-day inpatient hospital stay requirement.

Use of “Observation Status” Is on the Rise
Hospitals’ use of observation status and the amount of time patients spend in observation status have both increased significantly in the last few years. The Center for Medicare Advocacy (CMA) regularly hears about beneficiaries throughout the country whose entire stay in a hospital, including stays in excess of 14 days, is classified by the hospital as outpatient observation.

The primary motivation for hospitals’ increased use of observation status is the threat of punitive action by Recovery Auditors. These Medicare contractors review claims. If they reject a hospital’s admission of a patient as an inpatient, the hospital loses reimbursement for almost all related services. Penalties imposed on hospitals that readmit patients who return to the hospital shortly after discharge from a prior inpatient admission also foster the use of observation status.

The Centers for Medicare & Medicaid Services (CMS) has issued various payment rules in an attempt to address certain problems posed by the use of observation status, but these rules do not solve the problem for beneficiaries.ii

Take Action
CMA and the National Academy of Elder Law Attorneys (NAELA) have brought together a broad coalition of organizations representing consumers, nursing homes, physicians, and other stakeholders supporting a bipartisan, common-sense approach to help Medicare beneficiaries who are hospitalized in observation status.iii The Improving Access to Medicare Coverage Act of 2013 (H.R. 1179) introduced by Reps. Joe Courtney (D-CT) and Tom Latham (R-IA) would require that time spent in observation in the hospital be counted towards meeting the three-day prior inpatient hospitalization requirement for Medicare coverage of SNF care. A companion bill has been introduced in the Senate, S. 569, co-sponsored by Sens. Sherrod Brown (D-OH) and Susan Collins (R-ME). We urge you to ask your Members of Congress to support these bills. Find out more about Observation Status on NAELA’s website.

For individuals who find themselves affected by observation status, see the Self-Help Packet for Observation Status problems on CMA’s website.


iSee, generally, the Center for Medicare Advocacy website.
iiSee, e.g., the Center’s Weekly Alert “New Study: CMS’ New 2-Midnight Rule Increases Use of Observation Status” (February 20, 2014).
iiiSee NAELA’s webpage devoted to observation status. Also see a flyer supporting this legislation by the observation status coalition, including a list of members.


About the Author
Judith Stein, Esq. is the founder and executive director of the Center for Medicare Advocacy and a past president of the National Academy of Elder Law Attorneys.


{ 0 comments }

25263044 sMay 300x300 May is National Elder Law MonthThe National Academy of Elder Law Attorneys (NAELA) has designated May “Elder Law Month.”   NAELA members are attorneys who are experienced and trained in working with the legal problems of aging Americans and individuals of all ages with disabilities.  Given the growing aging population in the United States, elder law awareness is more important than ever.

Elder Law attorneys deal with such matters as

  • Health and personal care planning, including Living Wills and Powers of Attorney; lifetime planning.
  • Financial planning; housing opportunities and financing; income, estate, and gift tax matters.
  • Asset protection; planning for a well spouse when the other spouse requires long term care; public benefits such as Medicaid and insurance; Veterans’ benefits.
  • Guardianship and guardianship avoidance.
  • Resident rights in long term care facilities; nursing home claims.

 Given the broad scope of issues, Elder Law attorneys may specialize in specific subsets of Elder Law categories.  Elder law attorneys are important resources for clients because they understand that clients’ needs may extend beyond basic legal services and they stay informed about and connected to the local networks of professionals who serve the elder population.

Elder Law Events in May

NAELA attorneys will be hosting a variety of Elder Law events throughout New Jersey in May.  Come hear Elder Law Attorney, and NAELA member, Elga A Goodman, speak about Life Planning: Legal Tools to Enhance your Golden Years at the Washington Township Library on Monday, May 19th, at 12 p.m. and at the Summit Public Library on Tuesday, May 20th, at 7:30 p.m.  Please RSVP at 973-841-5111.

 

 

 

{ 0 comments }

9280114 sman and dollars 300x300 Taking the Law Into Your Own Hands Can Prove CostlyWe’ve all heard the adage, “You get what you pay for.”  When it comes to getting “do it yourself” legal material off of the internet vs. seeing an attorney, this may certainly apply.  The following is a cautionary tale that highlights potential problems that may arise.

Ms. Ann Adrich, living in Florida, decided to draft her own Will using a preprinted form rather than going to an attorney.  She scrupulously listed all of her existing assets and designated her sister, Mary Jane, as her primary beneficiary.  When Mary Jane passed away, Ann inherited significant assets from her estate.  So, upon her sister’s death, Ann amended her own Will with a handwritten codicil, designating her brother as beneficiary.

Unfortunately, there were some significant problems with Ann’s “do it yourself” approach.  Ann’s preprinted Will did not include a “residuary clause” that would have specifically addressed who should inherit any new assets that Ann accrued after preparing her Will.  And, the codicil that Ann hand-wrote, leaving all her worldly possessions to her brother, did not conform with state requirements, and, therefore, was not a valid “Will” or codicil under Florida law.

Upon Ann’s death, litigation ensued.  Her brother argued that Ann’s intent was for him to inherit all of her assets, including those that Mary Jane had left to Ann.  However, Ann’s nieces argued that, regardless of intent, the Will did not include the necessary residuary clause, and the codicil was invalid.  Therefore, the nieces argued, the assets that Ann had inherited from Mary Jane should not pass to Ann’s brother, but should pass via “intestacy” (a legal procedure whereby assets that are not addressed in a Will are passed down to heirs, according to the law of descent and distribution).

After extensive and expensive litigation, the Florida Supreme Court ruled in favor of the nieces.  The key lesson was expressed by Florida Supreme Court Justice Babara Pariente who wrote:

“While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.”  Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer.  However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset.  In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.”

Getting Legal Help

Experienced Estate Planning Attorney Elga A. Goodman can assist you with all your estate planning needs, including preparing all the necessary documents.  Contact us today at 973-841-5111.

 

 

 

{ 0 comments }

Many of us accumulate assets over the course of our lives – assets such as a home, a business, stocks and bonds, jewelry, cars, and assorted other personal items of greater or lesser value.  Taken together, these assets form an estate.  And, for many of us, estate planning becomes part of our “to do” list.  This may involve, among other things, preparing a Will, a Health Care Directive (also known as a Living Will) and a Power of Attorney, and setting up a Trust.  Understanding what the various estate planning tools do and do not do is important for successful estate planning.  Today we’ll be discussing truths and myths about a common type of trust, the “Living Trust,” also known as a “Revocable Trust. “

25871771 s 1smiling middle aged couple1 235x300 Living Trusts   Truths and MythsTruths:

A Living Trust is a tool established during your lifetime for your benefit (and for the benefit of designated loved ones).  You transfer some portion or all of your assets into the Living Trust to be managed by a Trustee that you have selected.  Please note, you may designate yourself as Trustee.  You may modify or terminate this trust at any time during your lifetime.

Elderly individuals may find Living Trusts useful tools in anticipation of disability or dependence on others.  Under the terms of a Living Trust, if a person becomes incapacitated, the assets will be readily available to him or to designated individuals.  A Living Trust also offers a person peace of mind that, upon her death, the trust beneficiaries will have relatively rapid access to the trust’s assets since Living Trusts generally avoid probate (a court process overseeing the administration of a Will).  While probate is a cumbersome process in some states, it is relatively straightforward and inexpensive in New Jersey.  That said, Living Trusts may be particularly advantageous for people holding assets such as real estate outside of their home states since probate will, in all likelihood, be avoided in the states where such real estate is held.

Myths:

You may have heard that a Living Trust:  1. provides protection from creditors; 2. serves to avoid income taxes; 3. avoids estate or inheritance taxes; 4. cannot be contested upon your death.

None of these myths is true!  Placing some or all of your assets in a Living Trust does not remove those assets from the general pool available to your creditors.  Nor does a Living Trust provide any income tax protection.  And a Living Trust, in and of itself, does not provide any inheritance or estate tax planning protection.  Finally, a Living Trust can be contested on such grounds as mental incapacity, undue influence, or fraud.

Getting Legal Help:

Experienced Estate Planning Attorney, Elga A. Goodman, can work with you on all your estate planning needs including establishing a Living Trust.   She can help you understand your options and prepare an estate plan that reflects your unique circumstances and wishes.  Contact us today at 973-841-5111.

 

 

 

 

 

 

 

{ 0 comments }

14993211 estate planning cloud 300x225 Estate Planning: Three Things To Consider When Choosing An Attorney.You’re ready to do some estate planning – a Will perhaps, or a Trust-related matter.  You need to find a lawyer.  There are certainly many attorneys from whom to choose.  But how do you pick the right one?

The following guidelines may help you in your search.

1. It’s always a good idea to work with an attorney who specializes in the area of law pertaining to your needs.  You probably wouldn’t go to a real estate attorney to handle your divorce.  So, if  estate planning matters are on your mind, seeking out an estate planning attorney is advisable.  And, while this may be obvious, it’s worth mentioning that you want an attorney who is licensed to practice in the state where you live, someone with a thorough understanding of the applicable state laws.

2.  Getting information about an attorney before you schedule an appointment can save you time, energy, and possibly money in the long run.  Recommendations from  trusted friends and associates can be useful in refining your search.  And, many attorneys have online websites where you can read about their credentials, areas of specialization, and how their clients rate them – all potentially useful information.

3. And last, but certainly not least, meeting with the attorney for an initial consultation is critical.  It’s really important that you feel comfortable with the person you select.  Estate planning is a very personal and potentially complicated matter.  You want to make sure that you and the attorney you ultimately choose communicate well with each other so that you can successfully accomplish your goals.

Some points to consider during the initial meeting:  Is the attorney

- a good listener, taking the time to understand what your specific needs are?   If you’re having a hard time getting a word in edgewise, and the discussion keeps going off course, perhaps this isn’t the right attorney for you.

- patient in answering your questions and willing to explain things thoroughly, calmly, and using language that’s clear and straightforward?  Abrupt responses or impatient reactions to your questions may make you feel foolish or intimidated.  That’s not exactly the type of environment conducive to a successful working relationship.

Bottom line,  you should feel at ease with the attorney you pick.  Mutual respect is important.  Sometimes, this means you may need to speak with more than one attorney before you find the right one.  It’s definitely worth the effort.  After all, this is about your estate, your needs, and those of your loved ones.

Getting Legal Help

Experienced Estate Planning Attorney, Elga A Goodman, can work with you to address all your estate planning issues.  Contact us today at  973-841-5111.

{ 0 comments }

prenuptial agreement1 300x199 How Late Is Too Late To Sign A Prenuptial Agreement?A prenuptial agreement (prenup) is a written contract that two people enter into before they marry.  There are many reasons for these contracts. Frequently addressed are issues regarding financial assets accrued by each party before the marriage along with assets accrued jointly during the marriage.  Prenups commonly include provisions for division of property and spousal support in the event of divorce or death.

Timing is important when entering into a prenup.  Coming to a mutual agreement about the terms and conditions can sometimes take several weeks or months.  Should the prenup be signed no later than one month before the wedding, one week before, or is the night before acceptable?  While there are no set rules, signing at the last minute is not advisable.

A recent Florida case highlights the potential problems associated with signing a prenup at the last minute:

- A few weeks before their wedding, a future husband presented his fiance with a first draft of their prenup.

- Eleven days before the wedding, the fiance reviewed the draft with her attorney.  Her attorney identified some problems, advised against signing the agreement, and said she would contact the future husband’s attorney to address the issues.

-  The fiance did not communicate with her attorney again prior to the wedding.  Rather, she went on a brief vacation a few days before the wedding and reconnected with her future husband on the night before the wedding.  At that time, he gave his fiance a revised prenup and told her to get it signed in front of a notary.  Which is exactly what she did at 2 a.m. on the day of her wedding – without reading the agreement!

- Sadly, 7 years later, the wife sued for divorce and asked that the court deem the prenup invalid.  This case ultimately went to the appellate court which stated that the circumstances under which the agreement was signed suggested duress and coercion that could qualify as grounds for nullifying the prenup.

The lesson here is clear.  A prenup is supposed to clarify certain issues for a couple before they marry.  Signing off late may just muddy the waters and defeat that purpose.

Getting Legal Help

Experienced Estate Planning Attorney, Elga A. Goodman, can help you with all your estate planning needs.  Contact us today at 973-841-5111.

{ 0 comments }