December 20, 2010 in Elder Law, Legal News by jferris

The Law Offices of Osofsky and Osofsky Offers Tips on Contesting the Will

Contesting a will is not easy, but may sometimes be necessary to preserve the proper distribution of an estate.

A person may be able to contest their loved one’s will if the person has good reason to believe that it is invalid. Contesting a will is a process that is based on a person’s firm belief that something is wrong with his or her loved one’s will or in the manner in which it was signed or procured.

A person should not contest a will simply because he or she thinks the loved one made a distribution of which he or she does not approve. Rather, one must have valid grounds to make the contest. To begin with, a will is presumed valid if it appears valid on its face, i.e. contains the signature of the loved one and the requisite signatures of disinterested witnesses in accordance with state law. In order to challenge a will, the challenger has the burden of coming forward with legally valid evidence that would justify a court of law in setting the will aside. There are only certain circumstances that would warrant a court doing so:

If the person can prove that the person making the will (also known as the testator) was suffering from mental incapacity to the degree that he did not know that he was making a will and/or did not know the nature or extent of his assets, nor the identity of his family, one may be able to establish that he lacked the requisite mental capacity to make a will. Evidence in this regard may include medical records, witnesses who had interaction with the testator and, possibly, the opinion of a forensic psychiatrist.

If a person believes that another person applied undue pressure upon the testator to change the distribution made in a prior will and/or to disinherit someone who would be the natural object of his bounty, that circumstance may perhaps show undue influence, which is often another basis to challenge a will.

Fraud is another basis to contest the will. For example, if a person can prove that the testator signed the will document without knowing or realizing that it was actually a will, or that he was given misinformation that caused him to sign the will in its present form or to change the distribution plan of a prior will, one may be able to establish that he was fraudulently influenced.

Further, if a person can show that the will was not properly executed according to state law, this may furnish another basis to contest a will. Example: the testator did not sign in the presence of the required number of disinterested witnesses, or that the actual signing was not properly witnessed.

“If you believe that your situation is similar to any of the above circumstances, you may wish to contact an attorney immediately to help you file a claim to ensure the proper distribution of your loved one’s estate,” said Gene L Osofsky, an elder law and estate planning attorney with the Law Offices of Osofsky Osofsky, with experience in trust administration and estate planning. “Also, be mindful of time limits. Usually a will contest must be filed before the will is admitted to probate. Speed may therefore be essential.”

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

December 17, 2010 in Elder Law, Legal Articles by jferris

Making Loving Gifts to Grandchildren to Ensure Their Future Security

Grandparents sometimes consider lifetime gifts to grandchildren when planning for their financial future. Not only will the gifts give the grandchildren a good start in life and perhaps a brighter future, but by such gifts may have an added benefit to your estate: by gifting to your descendents you can reduce the size of your estate and, possibly, reduce estate taxes payable upon your passing.

The simplest form of gift is to make an outright gift, providing that your grandchild is of an age to be considered an adult. In California, that age is 18. As long as that the gift is not more than $13,000 per year per grandchild, no gift tax report is required. Married couples can double their gift. By way of example, if you and your spouse have four grandchildren, by doubling your gift, you could give away up to $104,000 per year without incurring any gift tax and without any need to file a gift tax return. Gifts that do not exceed this amount per year are called “Annual Exclusion Gifts”.

You can also make direct payments to your grandchild’s school or college for tuition and tuition related costs, as well as for his health care expenses. These payments can be made on top of the $13,000 per year, providing that you pay the school and/or medical provider directly. These gifts are sometimes referred to as the “Educational or Medical Payment Exclusion”.

If your grandchild is still a minor, you may make a gift into a custodial account managed by someone you designate. While the account can be managed by a parent if you so designate, there may be tax reasons to nominate another person to manage these accounts for the grandchild, such as an uncle or aunt. These custodial accounts are sometimes known as “UGMA” or “UTMA” accounts, and most banks and stock brokerage firms have the relevant forms to assist you in setting them up

You may also consider making gifts by funding “529 Accounts”, which are accounts set up to help pay for your grandchild’s education. There are of course other gifting vehicles, including U.S. savings bonds. It is best to check with your tax advisor or estate planning attorney regarding your planned gifting program, especially if you are contemplating gifts of appreciated property.

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 elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

November 30, 2010 in Elder Law, Legal News by jferris

California’s Nursing Home Law Reaffirms Requirement of Proper Staffing Ratios in Nursing Care Facilities

Recent Legislation Will Help Ensure Better Quality Care for Patients and Law Offices of Osofsky and Osofsky Gives Tips on How to Evaluate a Nursing Home

There are new changes in state law regarding California’s skilled nursing homes.

Nursing homes will now face fines if they do not maintain state-mandated staffing requirements under the reauthorization of AB 1629 signed by Gov. Arnold Schwarzenegger on Oct. 19. The state will now have new tools to enforce the existing staffing requirement of 3.2 nursing hours per patient per day, required of all nursing homes licensed in California that receive Medi-Cal or Medicare payments.

These changes were established for accountability’s sake to ensure that all nursing homes meet state requirements. They were designed to reinforce the Long Term Care Reimbursement Act of 2004, which increased funding for nursing homes to help them meet these staffing requirements. Until now, the 2004 act had not fully met its goal of improving patient care.

The new law will also increase the number of auditors investigating the nursing homes. It will also establish fines for those who are non-compliant.

“The reason for this legislation was to provide better enforcement of the required staffing ratios in nursing homes, in order to improve the quality of patient care,” said Gene Osofsky of the Law Offices of Osofsky and Osofsky, which specializes in elder law, estate planning and trust administration.

Skilled nursing homes and care facilities will face penalties and fines if they do not meet the staffing requirements as required by law. Although some nursing homes already staff at the state’s requirement, others will now be forced to comply through imposition of fines and penalties. “We hope that the new law will provide better enforcement of the required staffing and improve the quality of care for patients,” Osofsky said.

Gene Osofsky also gives tips on how to choose and evaluate a proper nursing care facility. Gene Osofsky is a lawyer who also deals with nursing care issues.

“What’s more important than a nice looking facility is the quality of care. One must look at how the residents in the nursing home are being attended to and how well they are being treated and respected. Try to visit a facility at a time that hasn’t been prearranged in order to get an unrehearsed version of how the place operates,” Osofsky said.

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

November 17, 2010 in Elder Law, Legal Articles by jferris

The Cultural Changes in VA Healthcare System: Serving Female Veterans—the Invisible Minority

U.S. military veterans are getting older and have been actively seeking services from the Veterans Affairs healthcare system – from veterans who served in WWII, Korea and Vietnam to the most recent theatres, Iraq and Afghanistan. However, there has been an invisible, less talked about sector that is growing – female veterans.

The VA just recently created services for female veterans, and they are now being treated in veteran’s hospitals throughout the nation. Even female veterans coming out of military service are surprised to find that there are now services geared especially for them.

Today, only a third of all U.S. Veteran Affairs hospitals and clinics offer a women’s clinic for female veterans, but the VA plans to expand women’s clinics across the board. There is a surge of women joining the services, meaning more women in the military will be seeking services when they get out and when they get older.

According to the Department of Veteran affairs, women today account for 15 percent of active-duty roles, compared to only 3 percent of the military during the Vietnam era.

Since there is no real delineating line between men and women on the front lines during combat, more and more women are being killed and subjected to combat injuries and trauma. This in turn will affect their family and support systems and ultimately the VA healthcare system.

Gender-specific treatment is the ultimate goal of the VA healthcare system for women who have served in the military, some of whom are suffering from things like combat related injuries, PTSD and sexual trauma. NPR stated that there are more than 2,000 women who fought in Iraq or Afghanistan and, since treatment had historically been geared for men and war stories were about men, the plight of injured female soldiers faded into the background.

Now, the women getting out of the military are being acknowledged in the VA healthcare system and the VA is actively trying to get the word out to the general public, as well as to female military members themselves. When these women get older, they will be fitting into the categories of their male counterparts in regard to their need for long-term medical treatment, health-care services and VA prescription drug benefits.

For more information on veteran’s medical benefits and how you can qualify, go to http://www.LawyerForSeniors.com/.

August 12, 2010 in Elder Law, Legal Articles by jferris

Sensors at Home Can Make Your Elders Safer

Gene L. Osofsky of the law firm Osofsky & Osofsky weighs in about some helpful sensors.

For a lot of our elders, living alone isn’t what it used to be, especially in the sense of devices and technologically-advanced sensors placed in the home for safety reasons.

When Malcolm McGill, 94, slipped on a wet floor in his Bayonne, New Jersey home without wearing his emergency alert pendant, and could not phone for help, he felt desperation.

Fortunately, a tiny wireless sensor beneath Mr. McGill’s bed detected that the nonagenarian had gotten up. Motion detectors in his bedroom and bathroom registered that he had not left the area in his typical pattern and relayed that information to a central monitoring system, prompting a call to his telephone to ask if he was okay. When he did not answer, more calls were triggered – to a neighbor, to the building manager, and finally to 911, which dispatched firefighters to break through his door. He’d been on the floor less than 30 minutes when help arrived – courtesy of a system known as eNeighbor.

“It’s amazing some of the technology that’s available even for isolated elders living alone,” asserts Gene L. Osofsky of the law firm Osofsky & Osofsky, “That man might have died in similar circumstances a generation ago.”

Technologies such as eNeighbor offer a surprisingly high standard of care – and are backed by corporate giants such as Intel and General Electric – the latter a household word for most elders. But the devices can be expensive, remain largely untested, and are seldom covered by the government or private insurance plans. Doctors are not trained to treat patients using remote data and no mechanism exists for them to receive compensation for doing so. In fact, many such devices – including motion sensors, pill compliance detectors and wireless devices that transmit data on blood pressure, weight, oxygen and glucose levels – can have unintended or even adverse consequences.

“It’s difficult to substitute electronic measurements for face-to-face contact with doctors, nurses, and family members,” Osofsky explains.

Mr. McGill, who has congestive heart disease and suffered a broken hip five years ago, said he could not live on his own without the system that probably saved his life, built and distributed by a Minnesota company called Healthsense.

“Despite their limitations in 2010, in a few years I predict a lot of these sensors will become more practical and pervasive,” Osofsky concludes.

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

August 12, 2010 in Elder Law, Legal Articles by jferris

Let the Bank Do It?

Should you allow a large bank to help care for your elderly parents?

Baby Boomers are aging fast, their parents even more so if they’re still around. Caring for an elderly parent can be a big responsibility. Boomers might even be realizing the pitter-patter of their own quickening years.

Large banks are realizing this trend too. Some are betting on enriching their client base – and adding to their receivables while they’re at it – by providing financial elder-care services. Can a bank be effective at helping you care for the elders you cherish?

Sources such as the Wall Street Journal, in a recent article, assert that the larger banks have received positive initial reviews when it comes to such everyday necessities as sorting out medical bills, hiring in-home care, or perhaps administering the sale of a home. Flush with such successes, banks are beginning to delve into more in-depth services such as estate planning; establishing power of attorney subsequent to a crisis (the proverbial “break a leg” comes to mind, or more aptly a hip); health and home care assessments; selecting Medicare coverage and claims management – even scouting long-term living options like retirement communities and assisted living facilities.

Is rushing down to your nearest apparently elder-friendly bank getting you psyched? Advice might be similar as for riding a spirited steed when you’ve never sat in a saddle – Whoa! Treat a bank like you would any other attorney or professional advisor. While a horse might be guileless, a bank probably isn’t. By targeting the elderly population and their family caregivers, from a bank’s perspective seeing their asset management annual fees jingle out of their clients’ pockets might be reason enough for their foray into elder-care services –no matter how convenient their plans might sound.

Even if a particular bank does offer in-depth options worth trying when it comes to elders and their care and also financial legacies, careful investigation and research – as well as asking all the key questions – is essential before choosing any advocate for your beloved elder – be it a bank or otherwise. The person or institution to hire should truly know their stuff, especially the ins and outs of the law and the care-giving industry. A mere dabbler you don’t want. In fact, seeking out the advice of an Elder Law attorney before and not after you make a decision may help you choose the best bank – if that’s truly a direction you still want to go.

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 elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

October 15, 2009 in Estate Planning, Legal News by admin

Creative Ways to Boost Your Social Security Income

Elder law attorney Gene L. Osofsky of the law firm Osofsky and Osofsky suggests putting on “your thinking cap” when it comes to obtaining additional social security income.

Every year, more than $10 billion in Social Security benefits go unclaimed. Asserts attorney Gene L. Osofsky of the law firm Osofsky & Osofsky, “This is primarily because married couples do not know how to optimize their social security benefits.”

Much of this unclaimed bonanza does consist of spousal benefits that most people don’t even know they’re entitled to receive. “These benefits can increase your income and solve the riddle of whether it’s more advantageous to get immediate monthly income at age 62 or wait until you’re age 66 and get a bigger check – maybe significantly bigger,” Osofsky says.

If you do wait until age 66, which the U.S. government considers full retirement age, for people born between 1943 and 1954 the monthly benefit will be one-third greater than if you take it at age 62. If you wait until age 70, the check will be 76 percent larger. The longer you live, the more it will matter, and chances are, you’ll live a long time. The typical 65-year-old can expect approximately an additional twenty years of life. Within that pertinent group of 65-year-old elders, 41 percent of women and 28 percent of men will live to age 90 – and half of those women will make it to age 95, as will one-third of the men.

Spousal benefits offer a way around the potential conundrum. “If you’re married – or if you’re divorced after ten years of marriage and haven’t remarried, you can claim a benefit not only on your own work record, but also on your spouse’s,” explains Osofsky. No, you can’t collect those benefits simultaneously. But you might be able to get them consecutively. “You can file first to get a spousal benefit, and then later to get your own benefit after it has grown as large as possible. It just has to be done in the right order,” Osofsky says.

Being astute about these spousal benefits and how they work, can result in increased social security income for a married couple. “You may be able to increase your household income substantially over time,” Osofsky concludes, “You just have to be smart about it.”

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.

October 15, 2009 in Estate Planning, Legal News by admin

Blended Families Can Prove Challenging to Caregivers

Divorce seldom fails to up the complexity quotient when you add stepparents into the caregiving and estate planning equations, explains Elder law attorney Gene L. Osofsky of the law firm Osofsky & Osofsky.

Attorney Diane Fener, based in Virginia Beach, Virginia, has family duties when she travels to New England to visit her parents. Her mother lives in the dementia unit of an assisted living facility in Rhode Island. She then meets with her father at his apartment about a half-hour drive away in Massachusetts. Her father’s second wife, Ms. Fener’s stepmother, lives nearby in a nursing home and she too, has dementia. She last visits her stepfather – the man who was her mother’s second husband for more than two decades.

“I’m sure that Ms. Fener doesn’t get to spend as much time as she might like with each of her parents,” says attorney Gene L. Osofsky of the law firm Osofsky & Osofsky, “but her situation is typical of many blended families today.”

During the 1970s, there was a spike in U.S. divorce rates. In the aftermath of that spike, states liberalized their divorce laws and working women became less inclined to remain in unsatisfying marriages, the cultural stigma of divorced lessened, and grown children of these broken marriages are dealing with the unintended consequences. “A new layer of complexity has been added to an already complex and emotional situation, especially for caregivers,” Osofsky explains.

In fact, the added stresses of divorce, family upheaval, and tighter finances can be so detrimental to your health that the effects can linger for years into the future. Because Osofsky & Osofsky is frequently engaged to help divorced or remarrying couples update their estate plans to protect their newly blended families, Ms. Fener’s plight struck an empathetic chord with Osofsky. “Divorce can have poignant and practical effects 20 or 30 years down the road,” he explains, “not just on the couple but also on their grown children now acting as caregivers.”

Adult children of aging parents can find themselves caring, not only for mom and dad, but also for stepmom, stepdad, and sometimes even extra sets of stepparents from an additional or current marriage. “Dividing time and often finances between so many parents with new and special needs can quickly take its toll,” Osofsky concludes.

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.

October 15, 2009 in Estate Planning, Legal News by admin

Kennedy Trusts Seen as an Educational Tool

The recent death of Massachusetts Senator Edward M. “Ted” Kennedy might provoke some insightful thought about the nature of trusts – and how comprehensive and versatile they can be.

Joseph P. Kennedy, the patriarch of the Kennedy Family, left behind a labyrinth of blind trusts to manage the millions he had earned from scratch. He put his wealth into trusts with a long-term strategy in mind, to manage the family’s holdings for several generations of Kennedys. These blind trusts are run by financial experts whose goals are to invest conservatively and maintain the principal. Small amounts of profit are doled out to members of the Kennedy family annually. This network of blind trusts has maintained their overall wealth during the recent recession and in some instances they have flourished, even though the family can at times be hard pressed for ready cash.

In 2006, the recently-deceased Ted Kennedy could count as holdings five distinct family trust funds worth a minimum of $45 million to possibly as much as $150 million. Kennedy estimated that the family’s multiple trusts distributed $500,000 to $5 million in annual income. Before 2006, Senator Kennedy’s filings listed assets at less than $20 million. As only the family’s financial advisors were privy to details about the primarily blind trusts, it’s difficult to determine what made them double in value during the course of a single year. One thing for certain: Edward M. Kennedy passed away near the peak of his family’s net worth.
Trust instruments possess a unique nature. The Kennedy Trusts are excellent examples of how comprehensive and versatile trusts can be. First established as a single trust in 1926 by Joseph P. Kennedy, the Kennedy patriarch followed with successive trusts in 1936 and 1949. Each was “entrusted” with its own purpose; for instance, the 1926 trust was intended for Rose and their children, and the 1949 instrument was intended for his grandchildren. Each trust was established as a blind trust, in that it acted independently from any other trust.

The Kennedy trusts had staying power and were built to last, with each ensuing trustee active in providing for the beneficiaries while simultaneously protecting the principal for future generations. It was sad and tragic that Ted Kennedy has been taken from us as Americans. His stature as a voice in the U.S. Senate is beyond dispute. But the Kennedy trusts are a legacy for all of us, an excellent example of how trusts can be designed to protect and build even a relatively modest estate.

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.

October 15, 2009 in Estate Planning, Legal News by admin

Despite Estate Tax Uncertainties, Better Not Procrastinate

While Obama might be procrastinating about what to do about the estate tax, you’d better not.
President Barack Obama was supposed to tackle the thorny issue of the estate tax from the get-go, considering that the expiration date was already set for 2010.

Mr. Obama is at heart a cautious man. During his 2008 campaign, he pledged to raise income tax rates for top earners, but has since reneged, as advisors have told him that such an elimination of high income “tax cuts” as Republicans like to call them – would have an adverse effect on a chronically ailing economy during a deep recession.

Despite the “Death Tax Repeal” movement’s best efforts, it looks like the estate tax is here to stay.
Democrats seem determined to act with deliberate speed to prevent the estate tax’s scheduled repeal. A prior levy on large inheritances was first approved by Congress under President George W. Bush in 2001. Rollbacks were phased in, albeit slowly, with a full elimination in place for next year.

The Senate Finance Committee is expected to propose legislation to reverse the scheduled elimination in lockstep with a likely announcement of the Obama Administration’s detailed estate tax preservation proposal in his October 2009 budget. This anticipated “swift action” by Democrats was associated with a rationale that it would be politically more difficult to initiate their plan to resuscitate the estate tax once it was gone.

Under the Obama plan detailed during the campaign, the estate tax would be locked in permanently at the rate and exemption levels that became law in 2009. Estates of up to $3.5 million (twice that for couples) would be exempt from any taxation. The value of estates above that would be taxed at 45%. If the tax were restored to Clinton-era levels, the first $1 million would be excluded from being taxed and the remainder taxed at 55%.

Nearly a year has gone by since candidate Obama’s campaign promises were initially voiced regarding the estate tax. But despite the procrastination of our elected leaders, a version of the estate tax will likely be still in place next year, although the sort of permanency that estate planners might have wished for may remain elusive. So despite the fact that uncertainties exist and are likely to linger, it’s not the time to “sit on the fence” when planning your estate. Contact your elder law attorney or estate planner at your earliest opportunity to review your personal situation.

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.