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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.

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.

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.

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.

The death of your parent is bound to be an emotionally confusing time without the additional responsibilities of being named as executor of his or her estate. Elder Law attorney Gene L. Osofsky of the law firm Osofsky & Osofsky has some sound advice and insight for those placed in such a predicament.
Having being named the Executor of the Estate for your father, which by many is considered an honor, means that you must have more patience and focus than the remainder of your family. This is difficult to do in times of high stress due to a death in the family. Some of the responsibilities which you must thereby assume include the following:

Creating an accounting for the deceased’s assets and liabilities

Giving notice to potential creditors

Settling outstanding debts

Making distributions for estate taxes, if applicable

Making fiduciary income tax return

Making distributions to named beneficiaries

Filing a final accounting with the court to close the probate process

Included with these responsibilities is the duty to keep the estate viable during the probate process. This may include paying the mortgage on a house or even making car payments. Probate can often be a lengthy process, which is why you can petition the court to release short term funding for these purposes while probate continues.

“If you’re thinking that this sounds like no easy job, you’re absolutely right,” says Osofsky. It is an endeavor that should never be undertaken lightly. Executors are generally entitled to compensation from the deceased’s estate, but most immediate family members decline this option. “One good bit of news from this,” explains Osofsky, “is that you are not financially responsible for any debts the deceased may have accumulated.” To emphasize, all debts, taxes, legal fees, and administrative costs should be paid from the estate of the deceased, not from your own pocket. If you have advanced any such costs, you are usually entitled to claim a refund from the estate.

But the responsibilities of an executor can often be accomplished more efficiently with the help of a knowledgeable Elder Law attorney, such as Gene L. Osofsky of the law firm Osofsky & Osofsky. “We receive requests from clients to assist them in handling their responsibilities as an executor, especially when the executor is overwhelmed with grief and not accustomed to some of the required duties,” Osofsky explains, “If you find yourself in this situation, seek out an attorney knowledgeable in this process.” It will ease your burden, give you peace of mind, and may prevent needless family squabbles.

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.

According to Elder Law attorney Gene L. Osofsky, of the law firm Osofsky & Osofsky, the fear factor is high among Californians that many of our Elders in nursing homes may be directly impacted by Medi-Cal budget cuts. While this isn’t true, for Elders not living in nursing homes the story might play out quite differently.
July 28, 2009, was the day when embattled California Governor Arnold Schwarzenegger signed the new budget into law. “Like most states, California has been greatly affected by the serious recession that began in late 2007,” says Elder Law attorney Gene L. Osofsky of the law firm Osofsky & Osofsky, “and budget cuts to programs serving our Elders have not been immune.” Consequently, fears from Osofsky’s clients and colleagues about how residents of California nursing homes might fare in Governor Schwarzenegger’s controversial budget have fueled rampant speculation. Many California nursing home residents rely significantly if not primarily upon Medi-Cal to help pay for their care. But there is good news to be found. “Residents of California nursing homes won’t have their Medi-Cal subsidies for ancillary services such as dental and podiatric care directly affected,” explains Osofsky, “Although the budget cuts made to close the $26 billion gap will have a tremendous effect upon Medi-Cal programs for persons not residing in nursing homes, upon child welfare programs, AIDS prevention, adult day care, and low cost health insurance for low income children.”

Specifically, Medi-Cal funding to skilled nursing facilities has been penciled in at $96.4 million in the Governor’s budget, but a raft of caveats have been included in the budget as a whole. “There will be a reduction of $60.5 million in Medi-Cal county administration, and also a reduction of $47.9 million in the funding for private hospitals,” Osofsky says, “as well as limiting services to a maximum of three days per weeks – at a savings of $28.1 million – for adult day health care.”

These austerity measures are likely to adversely affect many Californians who may be Elders both directly and indirectly, depending upon their circumstances. “A few years from now, the ripples from these recession-beating budgetary maneuvers may prove more far-reaching than anyone first anticipated,” 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.

Even the most congenial of families can fight like wolverines when a Last Will and Testament is contested. For this to happen, they don’t have to be from Michigan.

A Last Will and Testament is a legal declaration by which a person names one or more people to manage their estate and provides for the transfer of property upon death.

Death is inevitable. But a careful choice in selecting an executor is seldom a given, especially where property and money are involved. During life, families may seem to get along fine, but the mixture of the death of a loved one, considerable property to be disbursed, and an executor who seems unfair or biased — can be a recipe for conflict. The living, prior to their passing, don’t always write out their wishes in clear and concise ways. If there is uncertainty in a family about what might occur upon the death of a patriarch or matriarch, for instance, the atmosphere following death can become an emotional war zone.

Family dynamics can disintegrate into shouting and resentment. Such family “fireworks” have little to do with the 4th of July, and can have long-lasting impact upon family relationships. Seemingly devoted family members fighting like wolverines don’t require an alumni card from the University of Michigan.
Unresolved disputes can result in a will contest. That contest can take on a life of its own, with potentially grim consequences for family harmony. Emotion often outshines logic in these contests. Where disputes occur, the litigation process can stretch out seemingly forever and become very expensive. For this reason, when preparing your Last Will, serious thought should be given to the selection of the best person to serve as one’s executor.

The best executor is one that approaches his or her duties professionally, with tact, with due regard for family dynamics, and with professional guidance from a knowledgeable attorney. If a will contest nevertheless does occur, at least it should then be grounded in a semblance of law and fair play. For this reason, it is important to choose the best person to serve. If you or someone you love is named as an executor, it is imperative that you engage a knowledgeable attorney early on in the probate process in order to help manage the proceedings, mediate expectations, lend assistance and guidance to the executor, and hopefully minimize family friction. By doing so, you just might preserve the very loving family of which the deceased was so fond.

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.

Gene L. Osofsky of the law firm Osofsky and Osofsky asserts that U.S. medical care has become a “mountain of cost.”

Elder Law attorney Gene L. Osofsky, like many Americans, recently read a feature article in the April 27, 2009, issue of The Nation that gave him pause. The article, entitled “A System from Hell” by Kate Michelman, detailed the tragedy of a family that, despite possessing adequate insurance coverage, has nevertheless been pushed to the brink of destruction.” Her young adult daughter was paralyzed when a horse fell on her; her husband, who had been diagnosed with Parkinson’s Disease, was then crippled and lost any hope of independence in the twilight of his life, after shattering his hip; and now the mounting medical bills keep on exacting a terrible toll – all this happens to a responsible couple who had seemingly prepared for health-related contingencies. How could this happen in America?” Osofsky asks. Michelman’s husband was placed in assisted living after surgeries and hospitalizations for his fractured hip. Ironically, the couple had thought to purchase private long-term care insurance years before their crisis, but although their insurance plan nominally covered long-term care, it did little to address her husband’s long-term care in respect to its actual costs. “How does one plan for a situation such as this? Kate Michelman certainly thought she and her husband had planned for every eventuality – she is a well-known and well-to-do public figure, he was a tenured college professor, they had excellent medical insurance, even long-term care insurance, and still it wasn’t enough,” Osofsky says, “They still found themselves on the brink of losing everything.”

According to Osofsky, Michelman’s story is frightening “precisely because it could happen, and is happening, to any of us.” The unfortunate truth about medical insurance, long-term care insurance, and Medicare/Medi-Cal for those who qualify, is that they often cover “most of the cost” of medical treatment and rehabilitative care. Asserts Osofsky, “Most is woefully lacking when we must face the awful reality of how high the costs actually are. Deductibles, co-payments, share of costs, and uncovered services have become a huge personal obligation, a black hole of debt where accumulated life savings can disappear in a heartbeat.” Is there a solution? The key is to enlist the help of committed experts who know how to navigate the convoluted worlds of the medical industry, insurance industry, and government benefit programs. Osofsky suggests “finding professionals who can help you build a plan to make the best use of those systems and what they offer.” But even that’s not a complete solution. Something needs to change. Concludes Osofsky, “Medical care in the United States has become a mountain of cost that even the young and the healthy ignore at their own risk.”

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, explains how being regarded as a “care custodian” may disqualify a person from being a beneficiary of a testamentary distribution.

“It might seem counterintuitive,” says Elder Law specialist Osofsky, “but according to a 2006 case decided by the California Supreme Court, being designated as a ‘care custodian’ of a dependent adult, may actually disqualify such persons from receiving testamentary bequests.” Adds Osofsky, “Only if the person making the testamentary bequest engaged a separate attorney to conduct an Independent Review and affirm that the testator was of sound mind and knew what he was doing, could the bequest be upheld.” The law seeks to protect dependent adults from coercive beneficiary disbursements made under duress or as the product of overreaching or undue influence. In certain care settings, California law presumes the naming of a care custodian as a beneficiary of one’s Will or Trust to be coercive actions assumptive of an unscrupulous care custodian and therefore void.

The case of BERNARD V. FOLEY (decision handed down August 21, 2006) found that unrelated friends providing ongoing health services to a dependent adult were “care custodians” under the relevant state statute and were therefore disqualified from receiving a testamentary distribution. James Foley and Ann Erman were longtime friends with Carmel Bosco. Ms. Bosco lived with them for two months prior to her death. Foley and Erman assisted her with her daily needs, including preparing her meals, helping her bathe, changing her diapers, and administering oral medications. Three days before she died, Ms. Bosco altered her living trust to make Mr. Foley and Ms. Erman each 50 percent beneficiaries. They had not previously been beneficiaries of the trust.

But Ms. Bosco’s relatives protested. Petitioning the court to invalidate the amendment, they argued that Mr. Foley and Ms. Erman were disqualified from receiving a testamentary distribution because they were “care custodians.” “Under California law, there is a presumption that donative transfers to care custodians are procured by undue influence,” explains Osofsky, “The state Supreme Court merely affirmed that a ‘caregiver’ under the statute could even be a friend who renders care to a dependent adult without compensation.” According to the Court’s decision, the definition of custodial care includes uncompensated or nonprofessional care and there is no evidence the legislature intended to make an exception for preexisting personal friends who provide health care services. Concludes Osofsky, “Elders have to be protected from people who would provide them with unprofessional care simply as a pretense to inheriting their assets. The very fact that they require such care puts them in an extremely vulnerable position.” But even this can be less than ironclad. “Sometimes persons have legitimate reasons for wanting to make bequests to their non-family member caregivers. In California, this essentially requires two attorneys to be involved, one to perform the Will or Trust and a second to conduct the Independent Review. Is this a trap for the well-intended?”

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.

Probate can be a difficult process. But using joint accounts to avoid it may not always be a good idea.

If you are thinking that joint accounts are a foolproof way to escape probate and funnel dollars to loved ones as a sort of “poor man’s estate plan,” think again. Circumstances exist when a joint account is an excellent option. But the instrument has its pitfalls as well, and if misused or entered into without caution, joint accounts can pose serious risks. Adding a loved one to a bank account may seem like a prudent action, but such actions can impact Medicaid planning or even make your account “fair game” for your loved one’s creditors.

Applications for Medicaid long-term care coverage can be tricky. States are obliged to examine the applicant’s assets to determine eligibility. Although a joint account may include two or more names, states tend to make the assumption that the applicant is the owner and entirely responsible for the total funds in the account, irregardless of who might have contributed to the account. Imagine your name is on a joint account. You enter a nursing home. The state is still likely to assume that the account’s assets are yours – especially without proof otherwise. Realize also that proving anything is a lot more difficult from inside a nursing home, or even an assisted living facility, when you might not have ready access to your papers and files as you did within your home sweet home back when you were well and able.

It can get worse. What if you or the other joint owner of the account decides to take monies out of an account that is already under state scrutiny? This can be perceived as “improper transfer of assets” for Medicaid purposes, which may have an adverse effect upon your eligibility. You or the other joint owner could become ineligible for Medicaid for a period of months or perhaps years. In fact, if a joint owner is removed from an account, it can appear suspicious to investigators. Example: Your parent enters a nursing home. You decide to remove your parent’s name from the joint bank account. Again, this simple action, prudent on its face, can be construed as an improper transfer of assets.

Remember that an account remains exposed to all the account owners’ creditors. If your son is added to the account and falls behind (or worse, defaults) on his credit card debt and gets sued, guess who is on the hook? Under laws currently in effect, a credit card company can confiscate the money in your account to pay off your son’s debt. Another pertinent question revolves around trust. Can you completely trust the person you are adding?

Viable alternatives to joint accounts do exist. A consultation with your attorney specializing in Elder Law may suggest a durable power of attorney or else a well-considered trust instrument. Seek out a qualified Elder Law attorney near you.

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.