Estate Planning for Second Marriages

Question:  My spouse and I each have children from previous marriages. While we want to provide for our surviving spouse when the first of us passes away, we want to ensure that each of our respective estates is ultimately going to our respective children. Is there a way to accomplish this?

Answer:   That is not an uncommon question at all. There are several issues for you to consider, the first consideration being the execution of a post-nuptial agreement, wherein each of you agree to waive certain interests that spouses have in the other’s estate.

New York law states that a surviving spouse has a right of election; i.e., a right to receive one-third (1/3) of their spouse’s assets at the death of the first spouse. That means that even though you might effectively “disinherit” your spouse by distributing probate and non-probate assets to your children, the surviving spouse can still elect  to receive one-third of your estate (this may include assets that pass inside and outside of your Will, such as joint accounts). Although you each may profess to have no interest in the other spouse’s estate, that does not prevent the surviving spouse from changing his or her mind when the first spouse dies. A pre-nuptial agreement or a waiver of the right of election can solve this problem. In this way, each spouse mutually waives their right to take 1/3 of the first deceased spouse’s estate, merely enforcing what you already agreed upon. While the right of election is usually only exercisable by the surviving spouse, there are some instances where someone appointed to act on behalf of the survivor could receive court approval to assert this right to an elective share.

The manner in which assets are titled and the type of investments make a difference. The surviving spouse may have a right of election against some but not all of your assets. The simple use of designated beneficiaries, or holding property jointly with another person with rights of survivorship, may pass those assets to your selected beneficiary but may not prevent the spouse from electing against those assets. By changing the way assets are invested, you may be able to avoid the right of election. For instance, life insurance is not subject to the elective share. Finally, you should carefully review all of your assets (including life insurance and retirement funds) to see how they are titled and review the designation of beneficiaries as well.

However, just because the spouse waives their right of election does mean that they cannot be provided for at all. Typically, the first spouse to die would transfer the property to a trust for the benefit of the surviving spouse giving them certain rights to the other’s property for the remainder of their life but ensuring that the remaining trust property be distributed to the decedent’s children when both spouses have passed away.

A well thought out estate plan, one to which both spouses have consented, will make sure that your assets pass to those whom you have designated while still providing for the surviving spouse during their lifetime.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Law Attorney
Nancy Burner, Esq., CELA
Nancy Burner & Associates, P.C.
East Setauket, New York
An ElderCare Matters Partner


Are German reparation payments for Holocaust survivors Medicaid exempt?

Question:  Are German reparation payments for Holocaust survivors Medicaid exempt?

Answer:   Under federal and state Medicaid law, German reparations payments for Holocaust survivors are exempted from being counted as either “income” or a “resource.”  By being exempt, these payments (1) are not counted when determining if a person is income-eligible for a particular program; (2) are not included in the income that must be turned over to the facility by the Medicaid recipient each month; and (3) are not counted towards the resource limits, which are $2,000 for the applicant/ recipient and no more than $117,240 for their community spouse.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Care / Senior Care Directory
Linda S. Ershow-Levenberg, Esq., CELA
Fink Rosner Ershow-Levenberg, LLC
Clark, New Jersey
An ElderCare Matters Partner


Questions and Answers about VA Benefits

Question:  Could you please provide us with some Questions and Answers about Veterans Administration (VA) Benefits?

Answer:  I am pleased to provide you with the following Questions and Answers about VA Benefits:

Question: Is Pension the only VA Disability Benefit?

Answer:  No. Absolutely not! In fact the Non-Service Connected Disability Pension (since January 1, 1976 called the “Improved Pension” as opposed to the Old Law Pension or Section 306 Pension), is by far the smaller of the two VA administered Disability Programs. There are over 10 million Veterans on the Service Connected Compensation Program and only about 375,000 Veterans on Pension! Service Connected Compensation is harder to prove legally but it can provide over twice the amount of monetary benefit based on total disability (the inability to hold or seek gainful employment due to the disability.)

Question: When does my claim become effective?

Answer: The Start Date of VA Disability Claims is first day of the month after the claim was received by the VA. It does not start when the VA actually receives the claim. If it takes the VA 4-5 months to adjudicate your claim, your first award check will be for all of the months from the start date. This is called the retroactive payment. Subsequently, the VA will direct deposit your award or mail you a paper check if you have no banking account on the first of every month for the preceding month.

Question: Does the VA count any financial assistance or gift I give to my parent as income?

Answer: Yes. However, the proper thing to do is to use your financial assistance to pay direct medical or living bills. Do not transfer the money into the claimant’s name. If you do, technically, it becomes income again and will be counted against the claimant thus reducing the benefit dollar-for-dollar. By paying the bill directly (like to an assistance living facility, for example), the gift falls under the definition of “private charity” (38 CFR 3.272(b)) and is not countable as income.

Question: Does the VA have a “look back” period as does Medicaid?

Answer: No. There is currently no look back period.

Question: What about spouses that were separated at the time of death?

Answer: Spouses separated for the reason of “marital discord” are still eligible as long as they did not divorce.

Question: Can a remarried Spouse receive Death Pension benefits?

Answer: Generally speaking, No. The definition of “Surviving Spouse” is that of a spouse who was married to the Veteran at the time of his or her death and has not remarried. However, there is an exception to this rule based on when the second marriage occurred and when it was terminated. The rules are also different in compensation cases.

Question: My financial planner claims that he can help me with a claim because he uses a VA-accredited attorney to prepare the claim. Is this legal?

Answer: No, it is not legal. If a financial planner is providing you with advice regarding your estate in regards to filing for a VA disability benefit, obviously intent to pursue the benefit has already been expressed. Hence, the financial planner is providing advice on a claim which is prohibited. Also, a VA-accredited attorney may only be assisted by a legal intern, or staff under the attorney’s direct, physical supervision (38 CFR 14.629.) A financial planner is obviously none of these.

Question: My Assisted living community referred me to someone who “helps” Veterans with disability claims. Can I use them to file a claim?

Answer: That depends. Federal law requires anyone assisting with a claim for VA benefits be accredited by the VA General Counsel (Title 38 USC §5901 and 38 CFR 14.626). The VA only recognizes three types of individuals that can be accredited: attorneys, claims agents and Veteran Service Officers. Every person accredited by the VA receives credentials from the General Counsel. Ask to see their credentials or search for them on the General Counsels website http://www4.va.gov/ogc/apps/accreditation/index.asp. If they cannot provide their official VA credentials or you cannot find their name listed on the General Counsel’s website, avoid them at all cost! They are in acting violation of federal law.

Question: Should I obtain help to file a VA benefit claim?

Answer: Filing a claim for VA disability benefits is a complicated process, even when the claims seem straightforward. Even though the VA makes basic claims forms available, we highly recommend that anyone making a benefit claim obtain assistance and guidance from an accredited attorney, claims agent or veterans service officer. The process and forms can be confusing and any information omitted or completed incorrectly can delay the process by several months.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Care Matters Professionals
Kevin Pillion, Esq.
Life Planning Law Firm, P.A.
Sarasota, Florida
An ElderCare Matters Partner


What is a Special Needs Trust?

Question:  What is a Special Needs Trust?

Answer:  While the majority of the clients we see love their children equally and wish to treat them equally when they die, there are circumstances where this is not a good idea. One of those circumstances is where a child has “issues”. Issues, in this context, usually mean that he or she has a developmental disability that may last for their lifetime and now or later they may need government assistance. Issues could also mean that he or she has an alcohol or drug dependency and also may need government assistance, or worse yet, may use their inheritance to further their addiction with a terrible ending.

Although it may seem like a good idea, I strongly discourage people from establishing custodial accounts or leaving cash or other assets outright to heirs with disabilities, if they are or will receive benefits from the State. The distribution of assets outright may disqualify the beneficiary from government assistance, which is means-based.

When the assets of an individual with special needs exceed the governmental financial resource limits, the individual may be disqualified from both Supplemental Security Income (SSI) and Medicaid.

A more appropriate way to pass an inheritance to a special needs beneficiary is to utilize a Supplemental Needs Trust, also known as a Special Needs Trust. Supplemental Needs Trusts can be either self-settled Trusts, or third-party Trusts. A self-settled Trust is a Trust set up with the disabled persons own assets. The disabled individual is the Grantor and the beneficiary. A third-party Trust is created by one person (the Grantor) for the benefit of another, so long as the Grantor is not legally responsible for providing support for the disabled individual.

A Supplemental Needs Trust containing certain provisions may be established to administer and distribute Trust assets to a beneficiary with special needs without otherwise disqualifying them from governmental benefits. If drafted properly, the assets in the Trust are not counted for the purpose of determining eligibility for governmental benefits. A properly drafted self-settled Supplemental Needs Trust will require the Trust to pay back the government after the death of the special needs individual for governmental benefits provided to the individual.  If the assets are depleted then they do not need to be reimbursed.   Supplemental Needs Trusts should be drafted with care. The instrument should not direct the Trustee to make disbursements for a disabled person’s heath, maintenance or support as this will cause the Trust assets to be includable in determining eligibility for governmental benefits. One way to accomplish this goal is to give the Trustee absolute discretion on disbursements. When distributions are up to the Trustee’s sole and absolute discretion, the assets in the Trust are not counted when calculating eligibility for governmental benefits.

Supplemental Needs Trusts can be a valuable tool in planning for disabled individuals. The process requires consideration of many issues and should be approached with care by qualified professional.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Care / Senior Care Professional
George P. Guertin, Esq.
Guertin and Guertin, LLC
North Haven, Connecticut
An ElderCare Matters Partner


Denver Elder Law Attorney Answers Today’s Question about Joint Tenancy on ElderCareMatters.com

Question:  Should I put all of my assets in joint tenancy?

Answer:  No! There are times when titling a particular item of property in joint tenancy makes sense. However, putting all your assets in joint tenancy, especially without proper planning, can be disastrous. Your joint tenant isn’t just a signer, he or she owns an undivided one-half (½) of your assets. Nothing prevents a joint tenant from clearing out all of your bank account; and nothing prevents a creditor of your joint tenant from executing judgments against your joint tenant’s interest in your property. If your will says “leave everything to my daughter,” but your assets are in joint tenancy (with right of survivorship) with your son, then your son will take everything when you die; not your daughter.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Care Matters Partner
John J. Campbell, Esq., CELA
Law Offices of John J. Campbell, P.C.
Denver, Colorado
An ElderCare Matters Partner


Atlanta CPA Answers Today’s Question about Family Finances

Question:  Help – we need to get on the right financial path before it is too late! My husband and I are in our early 60s and find ourselves wrestling with a host of financial issues, including elder care and estate planning as well as retirement planning. Can you provide us with some financial tips?

Answer:  I think that we all could use the reminder that our human flaws show up very clearly in our family finances. The fact is that we ALL lie to ourselves, from time to time, about what’s really happening with our wallet.

This habit of lying to ourselves threatens our financial stability. Instead of spending $10, we spend $30. Instead of recognizing that we *want* that new shirt, car, or fine dinner at a restaurant, we lie to ourselves until we are convinced that, for one reason or another, we *need* that new shirt, car, or fine dinner. The credit crunch of 2008-09 can partly be blamed on a nation full of people who convinced themselves that a $800,000 home was necessary — even though a $350,000 home was more than sufficient. We must learn to live within our income … and this sometimes means that we must stop lying.

So, I’ve compiled a short list of ideas on how to stop lying to ourselves, and to instead face the truth when making purchase decisions.

1. Have (and stick to) a budget. Is this purchase in my budget? For example, your family budgets a certain amount each month to spend on clothing. You’ve agreed that this amount is sufficient to meet your needs. So you set this amount before facing a purchase decision. If during the month you want to exceed the budget because Kohl’s is having a fantastic sale, then you are now lying to yourselves. You aren’t saving money by exceeding your budget during a sale. In fact, now you have to dip into savings to pay for your overspending.

2. Set a per-purchase spending limit. A wise man said, “The four most caring words for those we love are, ‘We can’t afford it.’” Take some time with your spouse to set what I call a “What I can spend without having to ask my spouse if it’s okay” spending limit. Some spouses have decided that neither one of them is allowed to spend more than $100 at any given time without calling and asking the other one if it’s okay (this does not apply to groceries). Let me tell you right now, these limits have stopped many from making a lot of unnecessary purchases.

3. Replace bad habits with enjoyable, inexpensive activities. Shopping or overspending is a habit that we have likely formed over years. Since our brains are programmed to react in a certain way in specific situations, any change is met by resistance. The existing habit is simply more comfortable and natural. To help change your behavior, replace the bad habit with another activity.

For example, instead of going to the mall to pass time, go to a local park with a soccer ball and spend some time with family or friends. Start or re-start a hobby. Your new hobby might even be a low-cost home business where you make money!

4. Make sure that the reason you tell yourself  you are making the purchase and the *actual* reason you are making the purchase are the same. Ask yourself, “Why am I really making this purchase?” Am I buying this dress for my wife because I love her and want to show my appreciation, or am I trying to prove to her and the world that I am a good provider? We lie to ourselves to cover our true motives. If the real reason you are making a purchase isn’t in line with your principles and budget, then don’t buy it.

5. Take stock of, and enjoy, everything that you already have! Develop gratitude for what you already have in your life. Purchasing new things is often a sign of ingratitude for what life has already afforded us … or a sign that we feel deficient in some area.

Overcoming bad habits and addictions is a process that requires concerted effort. Face each day one at a time, and stop lying to yourself! Don’t believe the story you’ve created in your mind that justifies unnecessary and financially harmful purchases.

If you need help with this or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Care Matters Partner
E. Dennis Bridges, CPA
Atlanta, Georgia
An ElderCare Matters Partner


Leading Connecticut Elder Law Attorney Answers Question about VA Benefits

Question:  We are in the process of applying for VA Long Term Care Benefits for my mother, who is 82 years old. I understand that she qualifies for these Aid & Attendance benefits, except that she may have too much cash in the bank. Can you please tell me what this dollar amount should be?

Answer:  The best thing you can do is seek assistance from a qualified Elder Law attorney who is accredited by the VA.  A knowledgeable Elder Law Attorney can help you plan so that your mother’s facts and circumstances meet all of the VA program’s requirements.  Although VA Aid & Attendance considers net worth when determining eligibility, there is no strict asset limit set by law, which is why you might be getting conflicting answers to this question.  In addition, all personal goods are generally exempt from the VA’s calculation of an applicant’s net worth, including the applicant’s home, vehicle, household goods, and personal effects, as well as burial policies/plans and small life insurance policies.  Eligibility determinations are made at the discretion of a VA caseworker.  The regulations do say that if an applicant has over a certain amount in assets based on marital status, a special report must be written to justify the applicant’s approval for benefits.  For this reason, it is unlikely that someone with assets over this amount will be found eligible to receive benefits.  However, even if an applicant has a net worth under the limit, VA caseworkers have been trained to consider whether the applicant’s assets will be used up during the person’s lifetime.  Due to this somewhat vague standard, it is important to consult an Elder Law Attorney who has experience with this process and can help to ensure your mother qualifies for this benefit.  Also, if you are considering applying for Medicaid it is important to remember that how the VA looks at your assets is different from the way Medicaid looks at your assets.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Connecticut Elder Care Partner
Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, Connecticut
An ElderCare Matters Partner


What is “Aging in Place”? Today’s Q&A on ElderCareMatters.com

Question:  What is “Aging in Place”?

Answer:   An AARP survey found that 85% of all Americans over the age of 65 would prefer to stay in their own homes and communities as they age, and that most seniors would prefer to receive their elder care assistance in their home rather than have to move to an institutional setting like a nursing home.  This “stay at home” approach is known as “Aging in Place”.

If you need help with this or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Care Matters Partner
Bob Dailey
Visiting Angels East Valley
Mesa, Arizona
An ElderCare Matters Partner


Why is it important to use an Attorney when applying for Medicaid Benefits?

Question:  Why is it important to use an Attorney when applying for Medicaid Benefits?

Answer:  Applying for Medicaid benefits can be a daunting process. The Deficit Reduction Act of 2005 increased the look-back period for nursing home applications from three years to five years (36 months to 60 months). This means that five years of financial documentation must be provided to the Medicaid agency in order for the application to be complete.

Unfortunately, the Medicaid application process is not one that can be easily researched online. Due to specific rules and regulations, as well as the lack of uniformity amongst counties, it is a matter of knowledge and experience in the area that allows for successful navigation of the system.

While there are certain cases that can be handled without the assistance of an attorney, it is important for an applicant and his or her family to obtain competent legal advice if they are interested in protecting assets, or if the applicant has made gifts within the five years prior to applying for Medicaid.

Unlike other areas of the law, specific instructions and procedures are difficult to find in writing. For example, in New York City a “transmittal” form is required, while Nassau County asks for a “pick-up letter”. If the documents specific to the applicant’s county of residence are not provided, the application can be refused or denied, which can potentially affect the applicant’s eligibility date. Counties also differ in the turn-around time allowed for additional information requests and in the ability to grant extensions to obtain missing documentation.

Furthermore, an elder law firm can devise and implement a comprehensive Medicaid and estate plan that often saves clients thousands of dollars. Creative legal techniques may be used to preserve assets even at the 11th hour in most cases.

We have had clients come to our office who had either been unaware of the existence of elder law attorneys or who did not want to pay for fees associated with using an attorney. Unfortunately, many of these clients have had Medicaid applications that had either been denied or had been approved for a period and then subsequently denied when Medicaid reviewed the case and discovered an issue at a later date.

For example, it is not uncommon for a family to come into our office after receiving guidance on how to protect assets with a ‘gift/loan plan.’ A gift/loan plan is a technique that can save approximately half of the applicant’s assets even if advanced planning was not done. Unfortunately, it is all too likely that such a plan will not be implemented correctly, and that rules will be misapplied by a non-attorney who is not familiar with all the planning techniques available to him or her. As such, it is beneficial to obtain the advice of an experienced elder law attorney who can implement the right plan, explain all the rules, and weigh the costs and benefits of the best Medicaid plan under the circumstances, including gift, estate, and capital gains tax implications. Each case must be assessed and tailored to the individual’s specific needs, rather than applying the cookie cutter approach often employed by non-professionals.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

ElderCare Matters Partner
Ronald A. Fatoullah, Esq., CELA
Ronald Fatoullah & Associates
Great Neck, New York
An ElderCare Matters Partner


America’s Caregivers Can Find Help with a Wide Range of Elder Care Matters on One Website

Question:  Our family is now dealing with elder care issues for both sets of parents, and we desperately need help with a host of elder care matters, including Elder Law, Geriatric Care Management, Home Care, Medication Management, and Financial Management. When will ElderCareMatters.com include ALL Elder Care Professionals in our State so that we can simply search this one Elder Care website to find ALL the help we need with our family’s Elder Care Matters? This would truly simplify our LIVES.

Answer:   ElderCareMatters.com was founded more than a decade ago with one objective in mind: To provide families across America with a Single Internet Source to help them plan for and deal with their Elder Care Matters. We now offer families easy access to thousands of Elder Care Professionals across America on ElderCareMatters.com, and we are continually striving to include ALL competent Elder Care Professionals across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

Thank you for your support of ElderCareMatters.com.

psanders1 Caregivers Desperately Seeking Resource to Locate Elder Care ProfessionalsPhillip G. Sanders, MBA, MSHA, CPA
Founder & CEO of ElderCare Matters, LLC
ElderCareMatters.com


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