“Everybody has a Will. But, perhaps you don’t know what yours says?”

In New York State, everybody has a plan to distribute assets after death. Without a written Will Last Will and Testament, your assets will pass-on by what is commonly referred to as “intestate distribution” or “intestacy.”

There are four ways to pass on property when you die:

1. by operation of law – joint tenancy;
2. by contract – beneficiary designation;
3. by Last Will and Testament – written instructions; or
4. by intestacy – statute determines how assets are distributed following death.

Intestate distribution is made to distributees, i.e. the nearest level of blood (including half-blood) relatives. Unless you change that distribution by leaving a valid Last Will and Testament document, your estate will pass as follows:

1. Survived by spouse and issue (“issue” means children or next lineal descendents)
   • Spouse gets first $50,000 and ½ of the residue of the estate
   • Issue equally share the rest;
2. Survived by spouse and no issue, then the spouse inherits all;
3. Survived by issue but no spouse, the issue equally share the estate;
4. No spouse or issue, then to your parents, then to siblings, then to nieces/nephews, etc… , and so on, all the way to first cousins once removed;
5. If there are no family members beyond that, your estate will pass to the State of New York.

There are many other rules and nuances to intestate distribution that are beyond the scope of this short article, but, remember, if you do not leave a Last Will and Testament for yourself, total strangers could inherit your life’s savings.

With a Will, YOU decide who receives your property and in what proportions. Your may create a trust for children or family members with special needs. You may nominate guardians for your minor children. If you don’t make this decision for yourself, New York State law will make those decisions for you.

Wills are not costly or complicated if you have relatively simple needs and the cost is an investment that is well-worth the effort to ensure your wishes are honored. If you have any questions about this article, or wish to speak to an attorney, please contact HoganWillig at 716-636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices in Buffalo, Lancaster and Lockport.

Tags: elder law month, last will and testament, living, will

May is National Elder Law month!  Throughout the month of May, please check our website for informative articles on Estate Planning and Elder Law topics.

HoganWillig will be hosting an Elder Law Day on Monday, May 13, 2013 at our Amherst, NY location (2410 North Forest Road, Suite 301).  We are offering FREE 20-minute private consultations with one of our attorneys for review of basic estate planning documents and elder law issues.  These FREE consultations will be by appointment only.  Appointment slots will fill-up quickly, so, please call for an appointment today:  (716) 636-7600.

Tags: elder law, elder law day, Estate Planning, free consultation

Join me at the Adam’s Mark Hotel, 120 Church St., Buffalo, NY 14202, for Elder Law Day 2013.

Free seminars on legal issues of interest to older adults and their families.

• Grandparents’ Rights
• Avoiding Financials Scams
• Wills, Trusts, and Small Estate Planning
• Medicare, Medicaid & Long Term Care
• LGBT Legal Issues
• Veterans’ Benefits
• Elder Abuse & Mistreatment

Tags: Avoiding Financials Scams, Elder Abuse, elder law, elder law day 2013, Grandparents' Rights, LGBT Legal Issues, Long Term Care, medicaid, medicare, Small Estate Planning, Trusts, Veterans' Benefits, Wills

April 16, 2013 is “National Healthcare Decisions Day.” It is a day set aside to educate the public about the importance of health care planning. This is to encourage people to express their personal wishes regarding healthcare, in writing, before a health care crisis occurs.

Although it is a difficult issue to address, it is important for all adults to consider who is best-suited to make medical decisions for them in the event they become too ill speak for themselves and convey their own wishes.

Health Care Proxy: A Health Care Proxy is a document which allows you to designate an agent to make health care decisions in the event you are unable to do so. Your health care agent should be a person you trust to carry-out your wishes and deal with your physicians.

Living Will: A Living Will supplements the Health Care Proxy by allowing you to document your wishes concerning treatment during a terminal illness or in the event you are in a vegetative state where there is no reasonable likelihood of recovery.

Appointing a health care agent is a good idea even if you are not terminally ill. A health care agent can act on your behalf should you ever become temporarily impaired. For instance, if you are unconscious as a result of a general anesthesia or have become comatose because of an accident, your health care agent would be able to make medical decisions on your behalf.

Family Health Care Decisions Act: On March 16, 2010, NYS Governor David Paterson signed the Family Health Care Decisions Act (“FHCDA”) into law. The FHCDA may permit family members to make medical decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, for patients who have lost their ability to make medical decisions and who had not previously prepared a Health Care Proxy or Living Will. However, the law may give some a false sense of security and belief that written a Health Care Proxy or Living Will is not needed. That is not the case.

The law established a protocol for doctors to determine whether a patient has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the law requires the selection of a ‘surrogate’ from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

The FHCDA does not solve problems where individuals desire to make very specific medical decisions for themselves based upon their own personal, religious or moral beliefs. Additionally, in family disputes, there will still be issues. For example, if several siblings have differing opinions regarding medical care for a parent, there will be problems to address.

Without advanced written directives for medical care, family members are left in the precarious situation of trying to figure out what to do. The FHCDA clarifies a decision-making hierarchy that may be helpful in emergency situations, but, it does not obviate the need for a Health Care Proxy and/or Living Will. Also, under the FHCDA statute, the health care surrogate is obligated to make decisions based on clear and convincing evidence of the patient’s wishes. The best way for a patient to express his/her own wishes, avoid family conflicts and select one’s own health care agent is to have a written Health Care Proxy and/or Living Will.

If you have any questions about this information, or wish to speak to an Elder Law/Estate Planning attorney, please contact HoganWillig, Attorneys at Law at 716-636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.

Tags: Family Health Care Decisions Act, FHCDA, hcp, health care proxy, living will, National Healthcare Decisions Day

The New York State Department of Financial Services now offers a FREE service to assist families with locating unclaimed benefits on life insurance policies and annuity contracts owned by or insuring the life of a deceased family member.

A July, 2011 investigation by the NYS Department of Financial Services found that insurance companies did not regularly seek out beneficiaries to pay death benefits but rather waited until a claim was submitted. For many people, they may be unaware that they are named as a beneficiary on a relative’s insurance policy, so, they fail to file a claim and the policy never gets paid.

The investigation also found that insurance companies checked the Social Security Administration’s “death master file” to know when to stop making annuity payments if a customer died, but, the insurers did not use that same list to know when to start making insurance payments.

Regulators adopted an emergency regulation that required insurers to conduct searches at least quarterly and, in December, Gov. Andrew M. Cuomo signed legislation that made these regular searches of records permanent.

The law also requires insurance companies to search for multiple policies a customer may have purchased and notify the parent company, subsidiaries and affiliates of a death so those entities can find policies where no claims have been filed. Additionally, they have to respond to consumer inquiries through the state’s new “Lost Policy Finder” to locate lost or unclaimed policies.

The “Lost Policy Finder” service through the NYS Department of Financial Services is available to: the Executor or Administrator of the deceased person’s estate or a member of the deceased person’s immediate family: spouse, domestic partner, child, grandchild, parent, grandparent, sibling, or closest living relative.

To complete an application to search for a lost or unclaimed policy, please go to : www.dfs.ny.gov/consumer/lost_policy_find.htm.

Information obtained from New York State Department of Financial Services website and The Buffalo News.

Tags: death master file, lost policy finder, unclaimed benefits

Medicaid is a joint federal-state Social Security program established by federal law in 1965. The laws governing Medicaid vary depending on whether the applicant is single or married, receiving services in the community or in a nursing home, and under or over the age of 65. Disabled individuals of any age, and medically needy individuals over the age of 65 are eligible for Medicaid as long as they meet the financial criteria.

Eligibility
Medicaid is a means tested program. In order to be eligible, Medicaid allows an “institutionalized person” (meaning anyone confined to a nursing home or other facility) to retain only $14,400.00 in resources (“resource allowance”), $50.00 per month in income, plus retain life insurance with a face value of $1,500.00 or less, while qualifying for Medicaid benefits. The “resource allowance” includes all resources, including bank accounts, jointly-held assets (in some cases, only one-half of these are included), cash value of life insurance policies, savings bonds, investment accounts, etc. The applicant can also establish a pre-need burial fund with a funeral home in an unlimited value, if it is set aside in an “irrevocable trust”.

Community Spouse
In the event the Medicaid applicant is married and his/her spouse continues to live in the community, the spouse will be allowed to possess assets totaling $74,820.00 (or one-half of the couple’s combined assets up to a maximum of $115,920.00, whichever is greater), in resources, a house with an equity value of no more than $750,000.00 and a car of any value, and still not affect the institutionalized spouse’s Medicaid eligibility.

NOTE: The State Minimum Community Spouse Resource Allowance is $74,820. The Federal Maximum Community Spouse Resource Allowance: $115,920 may be established.

Any assets beyond the allowable limits must first be “spent down” or applied towards the cost of the nursing home care before Medicaid will cover those costs. In addition, the community spouse may keep up to $2,898.00 per month income.

If the community spouse has less than $2,898.00, then income from the institutionalized spouse can be given to the community spouse to bring his or her income up to that level. If there is not sufficient income available to provide the community spouse with his or her income allowance, additional resources may be retained to generate extra income. Approval of this increase is only available through the fair hearing process.

If the community spouse has more than $2,898.00 in income per month, then Medicaid will suggest that he/she contribute 25% of the excess over $2,898.00 to the institutionalized spouse’s medical care.

There are several ways to protect the community spouse during the spend-down period. For example, there is no penalty period imposed on the transfer of assets to a spouse. Also, the couple is entitled to spend funds on anything for which they receive a fair market value prior to an application to Medicaid. Therefore, when there are excess resources, it is strongly recommended that the community spouse pay off any outstanding debts, make repairs and improvements to the home, update appliances, purchase a new car, prepay for burial arrangements, or even take a vacation.

There are also important planning considerations for the community spouse after Medicaid eligibility is established for the institutionalized spouse. This includes special attention to beneficiary designations and the way his/her assets are titled and planning ahead to address the possibility that the community spouse’s health may deteriorate and he/she may need long term care themselves.

Tags: community spouse, institutionalized person, medicaid

There are three basic estate planning documents that all individuals should consider when making a life plan strategy. The specific content of each document will depend on personal and family circumstances, but, everyone should consider having the following documents in place:

Last Will and Testament – A Last Will and Testament is a legal document that includes your personal instructions regarding the distributions of your assets upon your death. The preparation of a Will allows you to designate the beneficiaries of your estate. Your Will may also name a person to serve as executor of your estate.

A Will may also name a guardian for any minor children and designate the age when the children will receive their inheritance. Parents of a child with disabilities can also express their preference relative to their child’s future care, education, job training and living arrangements and even establish a trust to supplement governmental benefits received by the disabled child.

Power of Attorney – A Power of Attorney allows you to appoint an agent to make decisions concerning your legal and financial matters in the event you cannot do so for yourself. If something catastrophic happens and you become incapacitated, having a Power of Attorney in place can avoid the alternative of having a Court appoint a guardian, this could take several months and cost several thousand dollars.

Health Care Proxy / Living Will – A Health Care Proxy/Living Will allows you to designate an agent to make health care decisions in the event you are unable to do so yourself. It also allows you to document your wishes concerning treatment in the event you become terminally ill.

The simple act of planning ahead can assure that your personal wishes are followed.

Tags: hcp, health care proxy, last will, last will and testament, living will, lw, poa, power of attorney