Revocable “living” trusts can be a prudent estate planning device, but must be kept current. Prior to the 2001 changes in the tax law, the personal lifetime exemption from estate tax was $675,000. Couples often based their plan design on that rule. But when the exemption was increased to $3.5 million, the playing field changed. In fact, many couples had not updated their trusts to accommodate this change. “The tax landscape had been dramatically altered since many couples originally designed their trusts,” says Gene L. Osofsky, of the law firm Osofsky and Osofsky. There were other differences in those pre-2001 documents. “Many of these older trusts contained directions to split the trust estate into mandatory sub-trusts upon the death of the first spouse. This mandatory split was usually ‘tax driven’ and designed to preserve each spouse’s personal exemption, and thereby reduce or eliminate estate taxes over the span of two deaths. The ultimate goal was to transmit the maximum gift to the couple’s remainder beneficiaries, usually their children,” Osofsky explains. When the exemption amount changed, these trust provisions became archaic, or else applicable to much larger estates. Sometimes in the aftermath of the change, with an out-of-date document in hand, the surviving spouse’s access to the couple’s original assets was restricted without a corresponding tax benefit ensuing.

An admonition to draw from all this would be difficult to hear. Married couples who have created Revocable “Living” Trusts prior to 2001, as well as many who had created such documents afterwards – especially by non-attorneys and by so-called “trust mills” — would be well advised to have their trusts reviewed by a competent professional.

More recently, a severe recession has created similar issues for estate plans, to the extent that they were designed with higher asset values in mind. Trusts should also be reviewed, even if is of recent origin. While the estate tax rate is 45% under current federal law, it stands to be eliminated in 2010, then scheduled to be increased to 55% in 2011 even as the exemption will be reduced to $1 million. Says Osofsky, “While the markers are present in the political landscape to likely reinstate the taxed estate rate at 45% in 2009, while keeping the $3.5 million ceiling intact, it’s not exactly clear if this will actually happen.”

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Gene L. Osofsky, of the law firm Osofsky & Osofsky, has given thought to helping clients distribute their Internet passwords and online information in the context of estate and long-term care planning. He’s become preemptive about the subject. “It’s occurred to me that in preparing their estate plans, preparations should include some mechanism for transferring login credentials, like user names and passwords, and perhaps other online information they’d want disseminated should they be laid low by incapacity or death, or should a loved one become similarly afflicted or die,” Osofsky explains. The noted Elder Law attorney adds, “This could be pretty important. You or a loved one might have information on social networking sites such as YouTube or Twitter, for instance, and might want it removed, modified, or made accessible, according to personal wishes. What would happen to this information in the case of incapacity or death if you were no longer able to manage it?”

Companies such as Legacy Locker (www.legacylocker.com) are beginning to sprout up to address such needs. “While persons could certainly write down their passwords and pertinent online information on a piece of paper, companies like Legacy Locker (others will certainly follow suit) have taken such matters to the next level. Legacy Locker even provides a private letter to whomever the deceased wishes as a kind of final online testament,” Osofsky says. But Legacy Locker and other online vendors might not work for everyone. Many people might be justifiably reluctant to share their Email accounts or social network profiles. A potentially better solution might be an “online info” Confidential Insert prepared by your Elder Law attorney, the information contained therein transferred while you or your loved one are still of sound mind. This insert would contain all user names, passwords, and other information for on-line access that you or your loved one deem appropriate or essential in the event of incapacity or death. You’d establish clear instructions concerned with the terms and particulars involved with its release. What could be better than that?

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

An estate planner’s office must necessarily be about death, but it should also be about life. In everyone’s lives are personal and extraordinary stories which are there for the telling, and if expressed well, might live long after our lives have ended. Additionally, elders have so much life experience and wisdom to share and pass on, and in many respects, the loss of this precious history may be as tragic as their passing itself. In fact, what goes for our elders is also true for any of us; especially if death occurs prematurely, or even if life continues only marginally, its quality diminished or nearly extinguished due to unfortunate circumstances.

When you sit down to create your estate plan, think not only about how to pass on your assets, but also how to pass on your unique family stories and wisdom. After all, the silver flatware may go back to your great-great grandmother, but the story behind it is what makes it such a valuable family heirloom.

With the easy use and availability of digital video technology, exciting opportunities suddenly exist to document the stories and experiences of loved ones among us, while they still can live and breathe and share. If you or a relative feel that you do not possess the expertise to do this loving task justice, you might consider hiring a documentary filmmaker or skilled videographer and interviewer, to record your loved one’s life stories while you have the chance.

The interview can be as simple as audio taping life experiences and colorful stories. A poignant story comes to mind involving the 12-year-old son of a journalist and filmmaker. This charismatic and engaging boy would visit the elders in a nearby rest home with tape recorder in hand, determined to impress his beloved father with the extraordinary stories he’d recorded. The boy himself was killed tragically at age 13, but the stories he had gathered remained, treasured in their own right as a reminder of the youngster’s remarkable personality.

If funds are available, a competent writer specializing in biographical writing might be hired to create a well-written and engaging account of a wondrous person who once lived, breathed, and was loved. What an extraordinary addition to any estate plan!

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Even a decade ago, the keeping of gateways and access providers, such as passwords, must have seemed inconsequential to those charged with drawing up estate plans. That was before the advent of Twitter and YouTube, and all of the online banking, asset management and the like — when passwords to access these services hadn’t become such pervasive reminders of our recent technological prowess. Passwords have become ubiquitous enough that even our beloved elders use them liberally. The access codes are required for accessing almost everything on the World Wide Web, spidery as it is, and for most of us, our computers, hand-held devices, and other electronic gadgets that we’re constantly using are often locked from intruders (meaning anyone) until a user name and password are typed in.

Much of this secrecy is due to legitimate concerns and is extremely well-intentioned. Files and histories of sites that we visit on our computers are meant to be private. In the most ordinary sense, who wants the world to know every facet of our business? But by the same token, all of us have experienced the utter frustration that quickly develops if a password is suddenly misplaced or forgotten. Forgetting them is more common, considering that we may have so many, not just a few. But what if someone you love or know is laid low by incapacity or death, and the location or memory of these precious codes for navigating the Internet is suddenly gone?

This is no longer of little consequence. To a caregiver or family member responsible for a loved one, or more pointedly, for their affairs, access to certain information can be critical. Simply writing down a password on a scrap of paper may not be enough. While there is no easy solution for this problem, certain companies like Legacy Locker are attempting to address a burgeoning need. This site allows users to input their login credentials for the web services they access, where they are then kept safe until notification of the login info’s owner and relevant family members in the event of incapacity or death. Users can select which account information will be distributed and to whom. Such a service might seem like a good idea, but many people would be justifiably reluctant to share their Email accounts or social network profiles. What might work better for some would be an “online information” Confidential Insert added to an estate plan, which you’d provide directly to your Elder Law attorney, in connection with the preparation or update of your estate or long-term care plan while you are still of sound mind. This Confidential Insert would contain all passwords and other information for online access that would later be needed by your trusted agent, successor trustee, or executor. You would set the terms of its release. Alternatively, you might entrust this insert to your spouse, adult child, or other trusted person.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Harry and Joan have been married for fifty-one years. Last year, they celebrated their Golden Wedding anniversary. They’d accumulated a modest “nest egg” over their working years, but a tragedy common to growing old in America seems to be looming. Joan has been diagnosed with Alzheimer’s disease, albeit in its early stages. Harry remains in relatively good health, and is currently able to provide adequate home care for Joan; for instance, he’s patient when she misplaces her toothbrush or the house keys, but he worries about the progression of his wife’s deteriorating mental capacity. He has other anxious moments. What if he develops a chronic illness, or worse, what if he dies before Joan? As a responsible husband, he wonders if there is any way that he can create a plan that would address the special needs of Joan if he should die before her, or if he suddenly became incapacitated.

He’s heard about something called a Special Needs Trust that would allow Joan to receive government benefits supplemented by their accumulated savings. He’s also been warned by well-meaning friends that a “Living Trust” can have a downside. He needs answers. Fortunately, he and Joan live in California’s East Bay in close proximity to the law offices of Osofsky & Osofsky. He calls the law office and hears the pleasant voice of Gene L. Osofsky, a leading Elder Law Attorney and co-author of The Consumer’s Guide to Medi-Cal Planning. Is there some other way to protect Joan?

“Yes, there is,” Gene says, “There is a way that couples can provide for the survivor in this situation. It requires special planning. Instead of relying upon a ‘Living Trust’ as the primary estate planning device, you should consider creating a plan which relies upon a specially designed Will which contains Special Needs Trust Provisions for Joan. Your plan should be coordinated in a special way with the Will.” Gene tells the suddenly reassured Harry, “If you die before Joan, the Will – not the Trust – will help protect Joan and provide for her needs.” “That’s wonderful,” Harry says. Gene offers his expertise as this is an urgent matter. “Your situation requires special skill and knowledge about government benefits, especially Medi-Cal benefits. Our firm may be able to help.”

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Gene L. Osofsky, of the law firm Osofsky & Osofsky, is frequently consulted about asset preservation techniques in connection with Long-Term Care Planning. Senior couples often ask how they might protect each other if one of them were to be afflicted with an incapacitating illness or lingering condition during their final years. The questions are often not about sudden death, or even about dying, but about surviving and needing extended long-term care.

Long-term care often entails devastating financial costs associated with placement in a nursing home facility. Asserts Osofsky, who specializes in such elder care issues while serving California’s East Bay area, “This is a real concern, as nursing home expenses average $7,500 per month in our community, and are likely to only increase over time. This concern is all the more real for those who have experienced the financial and emotional devastation that such expense can cause, perhaps by having to help a parent or other loved one meet those costs.”

The good news is that Osofsky & Osofsky has developed a very special plan that deftly addresses those concerns, as well as the more traditional question of “Who gets our stuff if we should both pass on?” The plan is called the “Spousal Protection Plan,” or SPP.

Osofsky’s SPP incorporates special powers into the traditional estate plan. One of the spouses is designated the “Well Spouse” and is authorized to seek a government subsidy for the ill spouse’s nursing care under the Medi-Cal program, and to take steps during their lifetime to protect the couple’s estate from “payback” after the demise of both spouses. By taking these steps, the SPP is designed to minimize or avoid the financial devastation to the couple’s savings, investments, home, or other estate assets, and thus avoid impoverishing the “Well Spouse” while protecting their children’s inheritance

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

While longevity is increasing for both men and women, people are suffering from more debilitating diseases, and requiring more long-term care than ever before.

The cost of that care promises only to increase; and, were it not for the Medicaid Program (called Medi-Cal in California) created by Congress, many Americans would be without the means to pay for that care or would risk financial ruin. Seniors and their families deserve to live and age with dignity. They should not have to choose between securing necessary care and financial ruin. Indeed, providing a payment source for seniors and the disabled to cover long-term care expenses was a social policy decision made by Congress years ago.

Avoiding impoverishment by taking steps to qualify for an available long-term care subsidy may require planning and the services of an Elder Law Attorney.

Is this ethical? Think of it this way: The wealthy plan their affairs and design their business strategies to minimize their tax burden. They may hire a team of expert financial advisers, accountants and attorneys to assist them in their efforts. Their success is applauded and the creative efforts of their “team” members are often highly compensated. When logic is applied, what is so different about the middle class planning their own affairs in a similar fashion, in pursuit of benefits to which they are entitled? Except for an inherent class bias favoring the wealthy, the answer is nothing. The impact upon the public treasury — whether the planning involves tax avoidance, or securing a Medi-Cal subsidy — is precisely the same. Such middle class “tax planning” is not only ethical, it is becoming absolutely essential.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning.To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Your frail mother is still beloved but she’s 92 and requires home care. Caring for her is a labor of love, but difficult work; even when she smiles. Besides the tedious and unrelenting requirements involved, the “job” of caring for her can be a severe financial strain on the child. Studies have shown that a child serving in the capacity of primary caregiver can lose 75% of potential earnings during every year that the”job” of caring for their parent continues.

What if there existed a creative solution to your elder care dilemma? Caregiver agreements – formal contracts under which relatives are hired to care for elderly family members have been around for decades, but with the current economic downturn, an increasing number of families are choosing this option. This is good news, because caregiver agreements come with a number of benefits, not the least of which is that money given to a son or daughter under a caregiver agreement is not considered by the government to be “a gift” when an elderly person is attempting to qualify for Medi-Cal, Medicaid, or other public benefits. Another plus is psychological: to an aging parent, the idea of being cared for by a trusted family member may be especially meaningful. The contracted arrangements may also ease tensions and resentment among siblings, if for example, one child is rendering the lion’s share of the care.

The caregiver agreement must be in writing and it should be carefully crafted, preferably by an attorney specializing in Elder Law. There are also tax consequences. These agreements are legal contracts; should include details such as the cost of services with each service itemized; and the duties that the caregiver will be performing, spelled out in clear language. Authorizations for medical or financial decision-making should also be clearly described, especially if making medical and physical decisions will be part of the caregiving duties, those powers should be separately set forth in Durable Powers of Attorney for finances and Advance Health Care Directives for medical issues. Perhaps most crucially, the caregiver contract must be executed before the caregiver receives any compensation. If this final stipulation is ignored, a caregiver agreement could lead to a crisis instead of a solution.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.