9584531 s 300x72 When Theres No Will, Problems May AriseA critical part of estate planning involves preparing your Will.  Doing so helps ensure that your estate will be distributed to your heirs according to your wishes. Unfortunately, many people neglect to prepare a Will.  The reasons are many.  But the bottom line is that once you’re gone, and there’s no Will, things get more complicated for your loved ones.  And, your estate will be distributed according to state law – not according to your wishes!

The following summarizes three issues that arise when a person dies “intestate” (i.e., without a Will).

1.  When a person dies and leaves a Will, the Executor named in the Will is responsible for managing the estate until it is closed out (i.e., all debts, funeral expenses, and taxes are paid, and estate assets are distributed to beneficiaries).  However, when someone dies intestatethe Surrogate’s Court assigns an “administrator” to take on this function.  Most often, the court will appoint a close relative to serve as administrator.  By neglecting to prepare your Will, you’ve given up your right to select the person you prefer to administer your estate.  You’ve placed that decision in the hands of the court.  And that may result in assorted family disputes that might have been avoided.

2.  If you die intestate, you’ve also given up your right to determine exactly who gets what.  The court will distribute your assets in accordance with the state’s “intestate succession” laws.  These laws determine who the rightful heirs are and what share of your estate each of them will receive.   Whether or not you would have selected all or some of these heirs, whether or not their respective shares are consistent with what you would have wanted is not considered by the court.  You gave up your rights and your beneficiaries may consequently suffer.   

3.  If you die intestate, your administrator will be required to post a bond for a specified amount of money as determined by the court.  The bond  serves as security.  If the administrator fails to successfully carry out his/her duties, then the bond will cover resulting damages or losses.  In many cases, the cost of the bond, which must be paid annually until the estate is closed, will be more than what it would have cost to prepare a Will.  And, the bond may pose significant hardship for the administrator.

Preparing your Will is the right way to go if you want your estate managed in accordance with your wishes.  You owe it to yourself and to your beneficiaries!

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 }

17223581 l 1 300x200 Estate Planning   Questions About Tangible Personal PropertyPreparing a Will enables you to direct how and to whom your estate will be distributed once you’re gone.  Your estate is comprised of your (1) intangible personal property (including cash, IRA’s, 401Ks, bank accounts, insurance policies, etc.), (2) real estate, and (3) “tangible personal property.” 

Many times people wish to be very specific regarding how their tangible personal property will be distributed among beneficiaries.  One option is to itemize such specific bequests in a Will.  Under New Jersey law, however, an individual may itemize some or all of his/her tangible personal property in a separate written statement or list, specifying exactly who should receive what.  This list may be revised by the testator (the person bequeathing his/her estate) as often as desired during his/her lifetime, and does not require an attorney, witnesses, or notarization.  So for example, while a parent may state in her Will that her estate should be equally divided between her two children, she may attach a statement specifying that

- the gold watch goes to her daughter and the stamp collection goes to her son.

or

- her pearls go to her favorite niece, Alice.

The term tangible personal property is generally understood to mean items that can be felt or touched.  Typical items include clothing, jewelry, art, musical instruments, writings, furnishings and other household goods.  Often, these items are of relatively little monetary value, but of great sentimental worth.  It is important to remember that if you are preparing a separate statement or list, it may only serve to distribute tangible personal property, not cash, securities, negotiable interests or services.

Sometimes, however, it isn’t clear whether or not an item falls under the definition of tangible personal property.   For example, is a collection of gold Krugerrand coins considered cash or tangible person property?  These coins are minted by the Republic of South Africa, and each coin contains exactly one ounce of gold.  Given the potential for error, it’s best to consult with an attorney.  If it’s determined to be cash, then the collection should be bequeathed through the Will, which you must sign along with two witnesses, and which must be notarized.  If it’s deemed to be tangible personal property, then you can just gift it via a separate list, without the need for witnesses or a notary.  And, you can change your mind about who will receive the coins as often as you like.  Just redo the list.

When doing your estate planning, you want to feel confident that the items you bequeath to specific people on a separate list are, in fact, tangible personal property.  You don’t want your bequests to result in disputes among your heirs or in court proceedings because the items were not gifted in a legally correct manner.  

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 }

28248655 asian family  Estate Planning: Telling your Children What Youre Planning and Why  A critical part of estate planning involves identifying your beneficiaries, and specifying what they will inherit.  Parents (particularly those who are widowed or divorced) often designate their children as beneficiaries.  However, problems may arise among the kids depending on how those assets are divided.  Examples abound, but here are just a few:

You have three children, and you specify that

A.  50 % of your estate will go to your unmarried daughter.  The remaining 50% will be equally divided between your two married sons.

B.  your son, who received $200,000 from you to start a business, will inherit $200,000  less than each of the other two children.

C.  your two oldest children will receive their inheritances outright.  However, your youngest child’s inheritance will be held in Trust, with your oldest child serving as Trustee.

You have your reasons for what you’re doing.  But, if you don’t share those reasons with your kids, later on there may be hard feelings and misunderstandings about your intent.   Once you’re gone, your kids are left to interpret your Will without your input.  And  that may lead to major problems, possibly even litigation.

So, for example,

- in A. above, your sons may think you loved your daughter more than them.  After all, your sons have children to raise and put through college, and your unmarried daughter doesn’t have any of those responsibilities and she has a good job.  So, in your sons’ minds, it’s obvious who you loved most!

- in B. above, the son who received the startup money may not understand your reasoning and may feel very bitter about how the assets were distributed.  As far as he can tell, during your lifetime you were financially generous with the other kids too.

- in C. above, your youngest child, whose inheritance was left in Trust, may interpret your actions to mean you thought he was a “loser,” unable to manage his own affairs.  He may feel that you loved and respected his older sibling who was designated Trustee more than you loved and respected him.

Conclusion:

Informing your children in advance about your decisions regarding estate distribution may help avert discord after you’re gone.  Certainly, one good option is a face-to-face discussion.  However, an excellent alternative is to prepare a letter that explains why you’ve chosen to pass on your estate in your particular way.  The point is to clearly communicate your thoughts so that your children aren’t left guessing, and, possibly, fighting in court for years!

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 }

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 }