May 29, 2009 in Estate Planning, Legal News by admin

Technology Adds a New Dimension to Estate Planning

A good estate plan provides for the orderly transfer of property and the finalization of one’s wishes upon death. Estate planning tools, such as Wills, Trusts, gifts, and Powers of Attorney handle physical assets in a way that maximizes benefits and minimizes hassle for beneficiaries. However, as technology becomes an increasingly integral part of everyday life, “digital assets” such as email, social networking and online banking accounts also deserve consideration in modern estate plans.

Failure to make plans for online accounts or to leave behind a comprehensive list of passwords can cause unexpected hassle. Online banking accounts need to be secured and closed. Family members may want access to accounts in order to download and save any photos, writings or other digital works for posterity. In addition, family members may be able to take advantage of digital assets capable of generating revenue by having their Creative Commons licenses changed so beneficiaries can receive compensation. Most terms of use expressly forbid the use of an account by anyone other than the account holder, and attempting to address these issues without proper instructions can be difficult.

Since digital asset planning is new, the law is not always clear on the rights of online account holders and their family members. The question, which few existing laws address, is, who owns the content? And who has the right to access and close the accounts? Service providers like Facebook, Google and Twitter each reserve the right to close accounts at any time, and they are all wary of providing family members access to accounts.

Facebook, for example, expressly prohibits giving user information to family members, saying only that they will “consider” requests from close family members to close the account. Gmail, Google’s email service, will open an account to family members, but only after a copy of a death certificate, a Power of Attorney document and an e-mail sent from the deceased’s account are provided.

Estate planning attorneys and technology developers are beginning to look at digital assets like any other assets that can be bequeathed to a beneficiary after death. Companies like Legacy Locker offer the ability to safely store things like PC logins, domains and passwords to online accounts. Once the information is stored, a “beneficiary” is designated for each password and account. Beneficiaries then receive the information that has been bequeathed to them with instructions as to how it should be used after the account holder’s death.

It is increasingly difficult to make it through life without leaving an online trail of emails, accounts and passwords. These assets need to be addressed in an estate plan in order to protect your privacy and the privacy of your family, friends and business associates. Gathering information about accounts and passwords and indicating what should be done with them upon your death will ease the burden on family members and protect important online assets.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

April 28, 2009 in Estate Planning, Legal News by admin

Patient Advocacy Groups Support Legislation to Eliminate Two-Year Medicare Waiting Period

The Coalition to End the Two-Year Wait for Medicare enthusiastically supports the introduction of the Ending the Medicare Disability Waiting Period Act of 2009. The Act would eliminate the current two-year delay in coverage for people with severe disabilities who are waiting to become eligible for Medicare coverage.

Among the advocacy groups in support of this bill, are the Special Needs Alliance (SNA) and the National Academy of Elder Law Attorneys (NAELA). Bernard A. Krooks, a founding partner of Littman Krooks LLP, is current President of the SNA and past President of the NAELA.

The Coalition consists of over 115 organizations that work to ensure access to health care for people with disabilities. The Coalition is urging Congress to make coverage for people with disabilities a priority while addressing the issue of national health care reform.

The 24 month waiting period has been in effect since 1972 when Congress stipulated that people with disabilities must first receive Social Security Disability Insurance (SSDI) for 24 months before gaining Medicare eligibility. The legislation to address this issue, introduced by Senator Jeff Bingaman and Representative Gene Green, will phase-out the waiting period for all people with disabilities over ten years, while immediately eliminating the waiting period for people with life-threatening conditions.

The 24 month waiting period has resulted in many individuals with disabilities going without health insurance during their wait. Nearly 40 percent of people with disabilities are without health insurance coverage at some point during their wait for Medicare; 24 percent have no health insurance during this entire period. The waiting period forces people with severe disabilities to endure two years during which treatment and care of their conditions are put at risk. Many forgo medical treatment and/or stop taking medications, compromising their already fragile health and resulting ultimately in conditions that are often more costly to treat when Medicare coverage finally begins.

The Special Needs Alliance (SNA) is a national, not-for-profit organization of attorneys dedicated to the practice of disability and public benefits law. Individuals with disabilities, their families and their advisors rely on the SNA to connect them with nearby attorneys who focus their practices in the disability law arena. SNA membership is based on a combination of relevant legal experience in the disability and special needs planning fields, direct family experience with disability, active participation with national, state and local disability advocacy organizations, and professional reputation. SNA members average 20 years of experience in special needs planning and disability law.

To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

April 28, 2009 in Estate Planning, Legal News by admin

Living Trusts provide valuable estate planning benefits

The Revocable Living Trust has been growing in popularity as an estate planning tool for several years. The trend toward making a Living Trust an important element of an estate plan is understandable. A Living Trust offers benefits to both the individual who has established the Trust, called the Settlor or Grantor, and to his or her beneficiaries.

A Living Trust is a legal document that is intended to act as a partial substitute for, as well as a supplement to, a Will. The Settlor may transfer major assets like his or her, home, savings and investment accounts, to the Trust. The trust document contains instructions for distributing these assets upon the Settlor’s death. This type of Trust is referred to as “revocable” because the Settlor can amend or revoked at any time during his or her lifetime. It is a flexible document that can be updated given a change in circumstances such as a marriage, divorce or the birth of a child.

Revocable Living Trusts are managed for the benefit of the Settlor during his or her lifetime. Generally, Settlors name themselves as trustees of their Living Trust so that they may have full control over the management of their assets. If you have named yourself as trustee, you must also name successor trustees in order to establish who will manage the trust once you are no longer willing or able to do so.

The biggest advantage of a Living Trust is savings in both cost and time. Unlike a Will, a Living Trust does not have to go through probate to be executed. Probate is the court supervised process through which assets in a Will are distributed. The probate process can take months depending on the complexity of the estate and whether or not anyone chooses to contest the Will. Since the assets held in a Living Trust are transferred directly to the appropriate beneficiaries, the courts do not have to become involved in the process at all. All assets can be liquidated and distributed within weeks.

Living Trusts are also easy to administer, making it easier to choose trustees and successor trustees. Family members or trusted friends with no legal background will be able to serve as trustees. Being able to manage your own trust and have a family member become a trustee when you are no longer able can add to your peace of mind and make the process easier on your heirs.

A Revocable Living Trust allows for flexibility and security. Assets in the Trust can be built up over time, and access to income for beneficiaries continues uninterrupted should you become incapacitated. A Living Trust also ensures that your heirs will be able to avoid any aggravation and frustration that probate may cause. An experienced estate planning lawyer can set up the right trust for you and your loved ones.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

April 28, 2009 in Estate Planning, Legal News by admin

Medicaid planning and the look-back period

While the subject may be difficult to think about, it remains a fact that most people will spend some portion of their lifetimes in an assisted care facility. The possibility also exists that individuals may run up large medical bills both before and during placement in such a facility. It is therefore important to be prepared for these events by consulting with an estate planning and elder law attorney about proper Medicaid planning.

Since Medicaid is a joint State-Federal program, eligibility rules determining who qualifies for Medicaid vary from state to state. To qualify for Medicaid in New York, individuals must be eligible for Supplementary Security Income (SSI) and meet income and age restrictions. New York also has a Medicaid Surplus Income Program. Under this program individuals who have incomes that are too high can qualify for Medicaid if they spend down their excess income on medical bills.

In 2005, Congress passed the Deficit Reduction Act. This Act made several changes to Medicaid law, the most notable of which were the changes to the Medicaid Transfer of Asset rules. The new law, which took effect on February 8, 2006, created a five-year look-back period and established a waiting, or penalty, period for individuals in institutional care who would otherwise be able to receive Medicaid.

Transferring money and property to trusts or other family members in order reduce individual assets and qualify for Medicaid has long been an estate planning practice. Under the new rules this type of Medicaid planning is still possible, but due to the longer look-back period and increased penalty, it must be done farther in advance of the time one wishes to be able to qualify for Medicaid.

The difference between the look-back period and the penalty period is one of cause and effect. The look-back period is the amount of time after an individual receives or applies for Medicaid-covered services during which Medicaid reviews finances. The penalty period is the amount of time you must wait to receive Medicaid after which you would otherwise have been qualified. For example, if you gave a child $50,000 two years ago, that amount would be used to calculate your penalty period.

Penalty periods are determined on a community by community rather than a state by state basis. The penalty period is calculated by dividing the value of the transferred asset by the average cost of nursing facility services. In New York City the average cost of nursing facility services for 2009 is estimated to be $9,838 per month. To return to our $50,000 transfer example, the penalty period in New York would be 50,000 divided by 9,838, or approximately 5.1 months. On Long Island, the average cost of care is set at $10,852. In Westchester, Orange, Putnam and Rockland, it is $9,439.

Medicaid planning is an effective way to keep your assets in the possession of your family and prevent them from being spent on costly medical care. Good Medicaid planning also ensures your medical expenses will be covered when the time comes. Your estate planning lawyer can advise you on the best way to handle your Medicaid planning.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

April 28, 2009 in Estate Planning, Legal News by admin

Bernard A. Krooks to be Featured Speaker at Estate Planners Day 2009 in New York City

Bernard A. Krooks has been invited to be the featured speaker at Estate Planners Day 2009, an event sponsored by the Estate Planning Council of New York City. Mr. Krooks will present on the topic of “Use of Special Needs Trusts in an Estate Planning Practice”.

Mr. Krooks is the President of the Special Needs Alliance and founding Partner of Littman Krooks LLP with offices in Manhattan, Westchester and Dutchess counties. Mr Krooks has extensive legal expertise and experience in the area of Special Needs Planning and the use of Special Needs Trusts. He will be one of the prominent industry speakers at this year’s Estate Planners Day, where he will share some of his knowledge while speaking on the integration of Special Needs Trusts into overall estate planning practice.

The event will take place on May 6, 2009 at The Yale club in New York City, 18th Floor

50 Vanderbilt Ave. The event is scheduled to run from 7:30 am to 5:00pm.

The Special Needs Alliance is a national network of attorneys dedicated to assisting families with special needs planning. In addition to serving as the President of the Special Needs Alliance, Mr. Krooks is past President of the National Academy of Elder Law Attorneys (NAELA) and is a founding member and past President of the New York Chapter of NAELA. In addition, he is certified as an Elder Law Attorney by the National Elder Law Foundation. Mr. Krooks is also on the editorial boards of Exceptional Parent Magazine, Trusts & Estates Magazine, and the NYU Institute of Federal Taxation.

The Estate Planning council of New York City was founded in 1959 and serves as in interdisciplinary organization for estate planning professionals. The Council’s mission is to provide a better understanding of the services performed by professionals involved in estate planning and to foster cooperation among them.

To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

February 26, 2009 in Estate Planning, Legal Articles by admin

Life Insurance can be a Valuable Estate Planning Tool

The process of estate planning includes much more than just writing a Will. A good estate plan contains several elements, including a Will, Trust, Health Care Proxy and the assignment of a Power of Attorney. However, another tool that is often overlooked but can be a valuable asset to an estate plan is life insurance.

Obtaining life insurance is a necessary way to ensure that expenses are covered after the death of a loved one. This is certainly a benefit of any life insurance policy. Another benefit, not often considered, is the benefit to your estate plan.

Life Insurance Concerns

In the current challenging credit market, concerns have been raised about the solvency of life insurance companies and the chances of not receiving full policy benefits. This may be another barrier keeping both attorneys and clients from recommending life insurance as an estate planning tool.

There are several ways to evaluate the strength of an insurance company before investing in a policy. Generally, you will pay more in premiums to be insured by a stronger company. You and your estate planning lawyer may also evaluate a company’s economic capital. This involves doing research into whether analysts think the company has enough resources to meet their actual obligations. In addition, third parties like Moody’s and Standard & Poor evaluate life insurance companies and can provide useful information.

Advantages of Using Life Insurance

There are three types of life insurance: whole life, term life and variable life. Whole life does exactly as its name implies, covering you for your entire life as long as premiums are paid. Term life covers you for a specific period of time that is specified by the policy “term.” Variable life insurance has variable returns and a variable investment component because the policy holder, not the insurance company, determines where the appropriate portion of their premium is invested.

Regardless of the type of policy, life insurance benefits are paid directly to a beneficiary in full upon your death. Because of this, your beneficiary receives all assets immediately without having to go to probate court or pay taxes. Also, since the full policy amount is available upon death, life insurance is a good way to ensure a certain amount of money will be available at any time even if an unfortunate or sudden event should result in unexpected death.

For federal estate tax purposes, life insurance benefits are considered to be part of your estate. Fortunately, the beneficiary to a life insurance policy does not have to be a person. You can name an irrevocable trust as the beneficiary to your life insurance policy, in which case the money will pass directly into the trust and avoid all estate taxes.

Even facing an uncertain economic environment, life insurance can be a useful and effective aspect of your estate plan. Each type of life insurance policy contains differing levels of complexity and benefit, so it is important to consult with an estate planning lawyer when deciding which plan is best for you.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

February 26, 2009 in Estate Planning, Legal Articles by admin

New York Elder Law Attorney Bernard A. Krooks Discusses Elder Law Issues on Weekly Radio Program.

Bernard A. Krooks, New York Elder Law and Special Needs Attorney, hosts a weekly half hour show on Westchester Radio AM WFAS 1230. The show runs from 6:05 to 6:35 pm on Thursday evenings.

The show addresses many aspects of New York Elder Law and New York Estate Planning, including eldercare, special needs planning, guardianship, asset protection, estate, financial, medical, social and other topics of interest facing our elder population and persons with special needs.

Bernard A. Krooks, who goes by the moniker “Bernie the Attorney” on his show, hopes to bring valuable information to members of Westchester and surrounding areas, which will help to explain real issues to individuals concerned with estate planning, special needs planning and elder law. Mr. Krooks understands that many people may be intimidated by the complexity of financial and estate planning, so he tackles difficult issues in order to show how they effect people in everyday situations.

The show features weekly guests and interviews in which various people and organizations discuss how estate planning and elder law issues affect them and their members, or how they and their organization may offer help to individuals and families. Some recent guests include the Office of Vocational and Educational Services for Individuals with Disabilities, the Alzheimer’s Association, the Children’s Home of Poughkeepsie and the Miracle League.

AM 1230 WFAS has been broadcasting for over 75 years, and advertises itself as “Westchester’s legacy radio station.” The station aims to serve as the county’s “town square” bringing both music and useful local information to Central Westchester, parts of the Bronx and Rockland County.

Bernard A. Krooks is a founding partner of the law firm Littman Krooks LLP with offices in New York City, White Plains and Fishkill. Mr. Krooks is president of the Special Needs Alliance (SNA), a national network of attorneys dedicated to assisting families with special needs planning. Mr. Krooks is past Chair of the Elder Law Section of the NYSBA, Chair of its Legal Education Committee, and past Editor-in-Chief of the Elder Law Attorney, the newsletter of the NYSBA Elder Law Section.

Clips of the show are available on the Littman Krooks website at http://www.littmankrooks.com. The show is also available in podcast form, and users may subscribe online.

To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

February 26, 2009 in Estate Planning, Legal Articles by admin

Littman Krooks Attorney, Adrienne J. Arkontaky, to Speak at Council of Parent Attorneys and Advocated Conference.

Littman Krooks LLP will be represented by special needs attorney, Adrienne J. Arkontaky, Esq. at the upcoming 11th Annual Conference of the Council of Parent Attorneys and Advocates (COPAA).

COPAA is a national voice for special education rights and promotes excellence in special education advocacy.

Ms. Arkontaky will be presenting information on “Special Needs and Guardianship” during the conference. As both an attorney specializing in special needs planning and the mother of a special needs child, Ms. Arkontaky is uniquely qualified to offer both a personal and legal perspective on special needs planning issues.

The 2009 COPAA conference will be held in Washington, DC and will take place March 5 through March 8. The presentations at the conference will take into account the current political atmosphere, from the impending reauthorization of the Individuals with Disabilities Education Act (IDEA) and the No Child Left Behind Act (NCLB), and the potential impact that these could have on education for children with disabilities.

The conference should be of most interest to parents of special needs children as well as their attorneys and advocates. According to conference promoters, it will provide “unique opportunities for training and networking with experienced and knowledgeable attorneys, advocates, and parents.” Those participating will be given information and strategies to help deal with such issues as placement, educational methodology, dispute resolution, compensatory education, litigation matters and more.

Adrienne’s practice focuses on special needs planning for families of children with disabilities, special education advocacy, guardianship elder law, long term care, Medicaid issues, trusts and estates, estate planning, wills and probate.

Ms. Arkontaky is a member of the New York State Bar Association, the Westchester Women’s Bar Association and the Elder Law Section of the Westchester Bar Association. She is also a member of the Family Support Services Consumer Council (“FSSCC”) of the Hudson Valley.

The event will be held at the Capital Hilton, 1001 16th Street NW, Washington,

District of Columbia. Ms. Arkontaky will speak at Breakout Session 1 held from10:30 am – 11:45 am on Saturday March 7.

To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

February 26, 2009 in Estate Planning, Legal Articles by admin

Special Needs Planning: Testamentary vs. Revocable Trusts

If you have a child with special needs, you should take great care in planning for their future by incorporating special needs planning into your overall estate plan. One of the most effective ways to prepare for their future is to establish a Special Needs Trust tailored to the individual needs of your loved one.

It is important to be aware of situations where leaving money directly to your child with special needs may cause more harm than good. It is difficult to determine whether an individual with special needs will be able to make proper financial decisions for themselves, especially if they have no previous experience doing so. Leaving money directly to a loved one with special needs may cause them to lose public benefits that are currently paying for their daily and medical care. The money you leave in your Will to an heir with special needs will only cover the cost of daily living and medical care for one to three years, on average. After this time, when the assets have run out, your child will need to reapply for government benefits, and may be left with no means to cover medical expenses while they are waiting for their new benefits to take effect.

To avoid these problems, establish a Special Needs Trust which provides supplementary income to your loved one with special needs. The government cannot use this trust against them when determining their eligibility for disability and other public benefits. It is important to know that there is more than one type of special needs trust, and there are distinct advantages to each one. Make sure you choose the right one for your child with special needs.

A Testamentary special needs trust is created in a Will, and becomes effective once the parents or primary caregivers of the child with special needs have passed. Essentially, the Trust is created when the decedent’s Will is probated, and all assets are transferred into the Trust.

A Revocable Living Trust, or Living Special Needs Trust, differs in that in can be established while the parents or caregivers are still living. Assets placed into the trust can only come from people other than the beneficiary of the trust, and they can be accumulated on a monthly or weekly basis throughout the parents’ lifetime.

Your loved one with special needs may profit in several ways from the use of a Revocable Living Trust as opposed to a Testamentary trust. Trustees manage a Revocable Living Trust, which is created separately from a family’s estate for tax purposes. Since this trust is established during a primary caregiver’s lifetime, the trustees are usually the parents. This allows those who know the individual with special needs best to be able to make an organic plan that will grow under the right circumstances.

Another advantage to a Revocable Living Trust is that it establishes a pattern that may be used by future trustees. Parents who, as trustees, write checks for daily and monthly expenses from a Living Trust are showing what types of things will be acceptable expenditures from the Trust when new trustees take over their responsibilities.

Finally, there is the question of medical or other care for the parents of someone with special needs. More than half of the population will spend time in a nursing home or other assisted care facility toward the end of their lifetimes. If parents of a child with special needs find themselves in this situation and have not set up a separate Living Trust, their estate may be drained before their deaths, leaving nothing to be placed in the Testamentary trust.

All special needs planning must be adapted to fit the circumstances of the beneficiary, which will be very different on a case-to-case basis. A Revocable Living Trust allows for the most flexibility and security. Assets can be built up over time, and the Trust will continue without interruption in the event that something unexpected happens to a parent or primary caregiver. An experienced special needs planning lawyer can set up the right trust for you and your loved one.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.