Category: Elder Law

[This article was originally published on December 20, 2012.  The links were updated on July 12, 2018.]

This type of account, named for Section 529 of the Internal Revenue Code, enables you to reduce your taxable estate while earmarking funds for the higher education of a grandchild (or any other family member). Funds contributed to such accounts are invested to pay for a grandchild’s college tuition, room and board, or other expenses. The account funds are usually invested in mutual funds, and earnings from these accounts are tax-free. (Prepaid 529 plans are an alternative to traditional investment 529 accounts; for more on these, click here.)

You can contribute up to $15,000 (in 2019) per year ($30,000 for a couple) to 529 accounts without incurring a gift tax. Or, if you prefer, you can contribute up to $75,000 ($150,000 for a married couple) in the first year of a five-year period, as long as there are no additional gifts to that same beneficiary over the five years. In other words, 529 accounts can be a quick way of getting a sizable amount of money out of your taxable estate (although if you die within the five-year period, the portion of the contribution allocated to the years following your death would be included in your estate). An added benefit is that donors to these accounts can take the money back later if needed, although they pay a penalty of 10 percent of earnings. However, this power to control the assets means that the savings in a 529 account will be counted as an available asset under Medicaid rules in the event the account holder requires long-term care.   

If the grandchild uses the funds for any purpose other than higher education, the earnings are taxed as ordinary income to the account owner (you) and a 10 percent penalty is assessed on investment gains. Since you are the account owner, such accounts generally do not affect a child’s eligibility for financial aid. This change may increase a student’s chances for financial aid since qualified withdrawals will no longer be considered income to the student. Moreover, you can change beneficiaries at any time, as long as the new beneficiary is a member of the original beneficiary’s family. (The tax law enacted in 2001 expanded the list of family members to include the first cousin of the original beneficiary.) Most states now permit or are planning to permit 529 account plans, and many investment firms now offer them as tax- and estate-planning vehicles for their clients.

The Web site www.savingforcollege.com can help you compare the many state plans. In addition, click here for a good guide to choosing a 529 plan.

A recent case involving basketball star Caldwell Jones demonstrates the danger in having only one spouse’s name on a reverse mortgage. A federal appeals court has ruled that an insurance company may foreclose on a reverse mortgage after the death of the borrower, Mr. Jones, even though Mr. Jones’ widow is still living in the house. While there are protections in place for non-borrowing spouses, many spouses are still facing foreclosure and eviction.

A reverse mortgage allows homeowners to use the equity in their home to take out a loan, but borrowers must be 62 years or older to qualify for this type of mortgage. If one spouse is under age 62, the younger spouse has to be left off the loan in order for the couple to qualify for a reverse mortgage. Some lenders have actually encouraged couples to put only the older spouse on the mortgage because the couple could borrow more money that way. But couples often did this without realizing the potentially catastrophic implications. If only one spouse’s name was on the mortgage and that spouse died, the surviving spouse would be required to either repay the loan in full or face eviction.

In order to protect non-borrowing spouses, the federal government revised its guidelines for reverse mortgages taken out after August 4, 2014 to allow spouses to stay in the house as long as they meet certain criteria, including proving ownership within 90 days of the borrowers death. In 2015, the federal government allowed lenders to defer foreclosure on a widow or widower and assign the mortgage to the federal government. Advocacy groups looking at reverse mortgage foreclosures have found that despite these new regulations, lenders are still foreclosing on non-borrowing spouses. Of the 591 non-borrowing spouses who have sought help to avoid foreclosure, only 317 received assistance.

These regulations did not help Mr. Jones’ wife, Vanessa. Mr. Jones, who blocked more than 2,200 shots during his 17-year professional basketball career, obtained a reverse mortgage in 2014 on the Georgia home he lived in with his wife. The contract defined the “borrower” to be “Caldwell Jones, Jr., a married man.” Ms. Jones did not put her name on the reverse mortgage because she was under age 62 at the time of the mortgage. Mr. Jones died later that year, and when Ms. Jones did not repay the loan, the insurer began foreclosure proceedings.

Ms. Jones sued the insurer in federal court to prevent the foreclosure, arguing that federal law prohibited the insurer from foreclosing on the house while she lived in it. Under a provision in federal law, the federal government “may not insure” a reverse mortgage unless the “homeowner” does not have to repay the loan until the homeowner either dies or sells the mortgaged property and defines “homeowner” to include the borrower’s spouse.

On appeal, the 11th Circuit Court of Appeals (Estate of Caldwell Jones, Jr. v. Live Well Financial (U.S. Ct. App., 11th Cir., No. 17-14677, Sept. 5, 2018)) ruled that the federal law in question only covers what the federal government can insure and does not govern the insurer’s right to foreclose. The court agrees with Ms. Jones that the law is intended to safeguard widows and implies that the federal government should not have insured the loan in the first place, but finds that federal law does not cover the insurer’s private right to demand immediate payment and pursue foreclosure.

When purchasing a reverse mortgage, it is always safer to put both spouse’s names on the mortgage. If one spouse is underage when the mortgage is originally taken out, that spouse can be added to the mortgage when he or she reaches age 62. If you have a reverse mortgage with only one spouse on it, contact your attorney to find out the best way to protect the non-borrowing spouse. 

Older parents are becoming more common, driven in part by changing cultural mores and advances in infertility treatment. Comedian and author Steve Martin had his first child at age 67. Singer Billy Joel just welcomed his third daughter. Janet Jackson had a child at age 50. But later-in-life parents have some special estate planning and retirement considerations.

The first consideration is to make sure you have an estate plan and that the estate plan is up to date. One of the most important functions of an estate plan is to name a guardian for your children in your will, and this goes double for a parent having children late in life. If you don’t name someone to act as guardian, the court will choose the guardian. Because the court doesn’t know your kids like you do, the person they choose may not be ideal.

In addition to naming a guardian, you may also want to set up a trust for your children so that your assets are set aside for them when they get older. If the child is the product of a second marriage, a trust may be particularly important. A trust can give your spouse rights, but allow someone else — the trustee — the power to manage the property and protect it for the next generation. If you have older children, a trust could, for example, provide for a younger child’s college education and then divide the remaining amount among all the children.

Another consideration is retirement savings. Financial advisors generally recommend prioritizing saving for your own retirement over saving for college because students have the ability to borrow money for college while it is tougher to borrow for retirement. One advantage of being an older parent is that you may be more financially stable, making it easier to save for both. Also, if you are retired when your children go to college, they may qualify for more financial aid. Older parents should make sure they have a high level of life insurance and extend term policies to last through the college years.

When to take Social Security is another consideration. Children can receive benefits on a parent’s work record if the parent is receiving benefits too. To be eligible, the child must be under age 18, under age 19 but still in elementary school or high school, or over age 18 but have become mentally or physically disabled prior to age 22. Children generally receive an amount equal to one-half of the parent’s primary insurance amount (PIA), up to a “family maximum” benefit. You will need to calculate whether the child’s benefit makes it worth it to collect benefits early rather than wait to collect at your full retirement age or at age 70.

To make a plan for late-in-life parenthood, contact Marsala Law Firm today.

While the execution of wills requires formalities like witnesses and a notary, the reality is that most property passes to heirs through other, less formal means.

Many bank and investments accounts, as well as real estate, have joint owners who take ownership automatically at the death of the primary owner. Other banks and investment companies offer payable on death accounts that permit owners to name the person or people who will receive them when the owners die. Life insurance, of course, permits the owner to name beneficiaries.

All of these types of ownership and beneficiary designations permit these accounts and types of property to avoid probate, meaning that they will not be governed by the terms of a will. When taking advantage of these simplified procedures, owners need to be sure that the decisions they make are consistent with their overall estate planning. It’s not unusual for a will to direct that an estate be equally divided among the decedent’s children, but to find that because of joint accounts or beneficiary designations the estate is distributed totally unequally, or even to non-family members, such as new boyfriends and girlfriends.

It’s also important to review beneficiary designations every few years to make sure that they are still correct. An out-of-date designation may leave property to an ex-spouse, to ex-girlfriends or -boyfriends, and to people who died before the owner. All of these can thoroughly undermine an estate plan and leave a legacy of resentment that most people would prefer to avoid.

These concerns are heightened when dealing with retirement plans, whether IRAs, SEPs or 401(k) plans, because the choice of beneficiary can have significant tax implications. These types of retirement plans benefit from deferred taxation in that the income deposited into them as well as the earnings on the investments are not taxed until the funds are withdrawn. In addition, owners may withdraw funds based more or less on their life expectancy, so the younger the owner the smaller the annual required distribution.  Further, in most cases, withdrawals do not have to begin until after the owner reaches age 70 1/2. However, this is not always the case for inherited IRAs.

Following are some of the rules and concerns when designating retirement account beneficiaries:

• Name your spouse, usually. Surviving husbands and wives may roll over retirement plans inherited from their spouses into their own plans. This means that they can defer withdrawals until after they reach age 70 1/2 and take minimum distributions based on their age. Non-spouses of retirement plans must begin taking distributions immediately, but they can base them on their own presumably younger ages.
• But not always. There are a few reasons you might not want to name your spouse, including the following:
  • • He or she is incapacitated and can’t manage the account
    • Doing so would add to his or her taxable estate
    • You are in a second marriage and want the investments to benefit your first family
    • Your children need the money more than your spouse
• Consider a trust. In a number of the above circumstances, a trust can solve the problem, providing for management in the case of an incapacitated spouse, permitting assets to benefit a surviving spouse while being preserved for the next generation, and providing estate tax planning opportunities. Those in first marriages may want to name their spouse as the primary beneficiary and a trust as the secondary, or contingent, beneficiary. This permits the surviving spouse, or spouse’s agent if the spouse is incapacitated, to refuse some or all of the inheritance through a “disclaimer” so it will pass to the trust. Known as “post mortem” estate planning, this approach permits flexibility to respond to “facts on the ground” after the death of the first spouse.
• But check the trust. Most trusts are not designed to accept retirement fund assets. If they are missing key provisions, they might not be treated as “designated beneficiaries” for retirement plan purposes. In such cases, rather than being able to stretch out distributions during the beneficiary’s lifetime, the IRA or 401(k) will have to be liquidated within five years of the decedent’s death, resulting in accelerated taxation.
• Be careful with charities. While there are some tax benefits to naming charities as beneficiaries of retirement plans, if a charity is a partial beneficiary of an account or of a trust, the other beneficiaries may not be able to stretch the distributions during their life expectancies and will have to withdraw the funds and pay the taxes within five years of the owner’s death. One solution is to dedicate some retirement plans exclusively to charities and others to family members.
• Consider special needs planning. It can be unfortunate if retirement plans pass to individuals with special needs who cannot manage the accounts or who may lose vital public benefits as a result of receiving the funds. This can be resolved by naming a special needs trust as the beneficiary of the funds, although this gets a bit more complicated than most trusts designed to receive retirement funds. Another alternative is not to name the individual with special needs or his trust as beneficiary, but to make up the difference with other assets of the estate or through life insurance.
• Keep copies of your beneficiary designation forms. Don’t count on your retirement plan administrator to maintain records of your beneficiary designations, especially if the plan is connected with a company you worked for in the past, which may or may not still exist upon your death. Keep copies of all of your forms and provide your estate planning attorney with a copy to keep with your estate plan.
• But name beneficiaries! The biggest mistake many people make is not to name beneficiaries at all, or they end up in this position by not updating their plan after the originally-named beneficiary passes away. This means that the plan will have to go through probate at some expense and delay and that the funds will have to be withdrawn and taxes paid within five years of the owner’s death.

In short, while wills are important, in large part because they name a personal representative to take charge of your estate and they name guardians for minor children, they are only a small part of the picture. A comprehensive plan needs to include consideration of beneficiary designations, especially those for retirement plans.

Even if you’ve created an estate plan, are you sure you included everything you need to? There are certain provisions that people often forget to put in in a will or estate plan that can have a big impact on your family.

1. Alternate Beneficiaries

One of the most important things your estate plan should include is at least one alternative beneficiary in case the named beneficiary does not outlive you or is unable to claim under the will. If a will names a beneficiary who isn’t able to take possession of the property, your assets may pass as though you didn’t have a will at all. This means state law will determine who gets your property, not you. By providing an alternative beneficiary, you can make sure that the property goes where you want it to go.

2. Personal Possessions and Family Heirlooms

Not all heirlooms are worth a lot of money, but they may contain sentimental value. It is a good idea to be clear about which family members should get which items. You can write a list directly into your will, but this makes it difficult if you want to add items or delete items. A personal property memorandum is a separate document that details which friends and family members get what personal property. In some states, if the document is referenced in the will, it is legally binding. Even if the document is not legally binding, it is helpful to leave instructions for your heirs to avoid confusion and bickering.

3. Digital Assets

More and more we conduct business online. What happens to these online assets and accounts after you die? There are some steps you can take to help your family deal with your digital property. You should make a list of all of your online accounts, including e-mail, financial accounts, Facebook, Mint, and anywhere else you conduct business online. Include your username and password for each account.  Also, include access information for your digital devices, including smartphones and computers. And then you need to make sure the agent under your durable power of attorney and the personal representative named in your will have authority to deal with your online accounts. For more information about digital estate planning, click here.

4. Pets

Pets are beloved members of the family, but they can’t take care of themselves after you are gone. While you can’t leave property directly to a pet, you can name a caretaker in your will and leave that person money to care for the pet. Don’t forget to name an alternative beneficiary as well. If you want more security, in some states, you can set up a pet trust. With a pet trust, the trustee makes payments on a regular basis to your pet’s caregiver and pays for your pet’s needs as they come up.

Contact Marsala Law Firm to make sure your will and estate plan takes care of all your needs.

When leaving a home to your children, you can avoid probate by using either joint ownership or a revocable trust, but which is the better method?

If you add your child as a joint tenant on your house, you will each have an equal ownership interest in the property. If one joint tenant dies, his or her interest immediately ceases to exist and the other joint tenant owns the entire property. This has the advantage of avoiding probate.

A disadvantage of joint tenancy is that creditors can attach the tenant’s property to satisfy a debt. So, for example, if a co-tenant defaults on debts, his or her creditors can sue in a “partition proceeding” to have the property interests divided and the property sold, even over the other owners’ objections. In addition, even without an issue with a creditor, one co-owner of the property can sue to partition the property, so one owner can force another owner to move out.

Joint tenancy also has a capital gains impact for the child. When you give property to a child, the tax basis for the property is the same price that you purchased the property for. However, inherited property receives a “step up” in basis, which means the basis is the current value of the property. When you die, your child inherits your half of the property, so half of the property will receive a “step up” in basis. But the tax basis of the gifted half of the property will remain the original purchase price. If your child sells the house after you die, he or she would have to pay capital gains taxes on the difference between the tax basis and the selling price. The only way to avoid the tax is for the child to live in the house for at least two years before selling it. In that case, the child can exclude up to $250,000 ($500,000 for a couple) of capital gains from taxes.

If you put your property in a revocable trust with yourself as beneficiary and your child as beneficiary after you die, the property will go to your child without going through probate. A trust is also beneficial because it can guarantee you the right to live in the house and take into account changes in circumstances, such as your child passing away before you.

Another benefit of a trust is with capital gains taxes. The tax basis of property in a revocable trust is stepped up when you die, which means the basis would be the current value of the property. Therefore, if your child sells the property soon after inheriting it, the value of the property would likely not have changed much and the capital gains taxes would be low.

In general, a trust is more flexible and provides more options to protect you and your child, but circumstances always vary. Marsala Law Firm can help you learn about how to pass down your property.

Our bodies become dehydrated when we lose more water than we take in. Staying hydrated allows the body to regulate temperature through perspiration, maintain blood pressure and eliminate waste. Dehydration may show only small signs outwardly, but it can have dire consequences on the body, especially in the elderly.

Severe dehydration can lead to confusion, impaired cognition, falling, urinary tract infections, constipation, pneumonia, bedsores in bed-ridden patients, and even death. It can accelerate or cause emergency hospitalization and/or increase the length of hospital stays.

Why Dehydration is Common in the Elderly

• As we age, the amount of water in the body decreases.
• The elderly are often less thirsty, which leads to consuming fewer fluids.
• They may be on medications that act as diuretics or cause them to sweat more.
• As we get older, our kidneys are less able to conserve fluid, especially during water deprivation.
• Specific conditions can contribute to dehydration. These include comprehension and communication disorders, reduced capacity and incontinence.
• Frail seniors, and those with decreased mobility, may have a harder time getting up to get a drink when they are thirsty. They may rely on caregivers who don’t sense they need fluids.
• Illness, especially if it involves vomiting and diarrhea, can quickly cause an elderly person to become dehydrated.

How to Spot Dehydration

Outward symptoms of dehydration can include confusion, difficulty walking, dizziness or headaches, dry mouth, sunken eyes, inability to sweat or produce tears, rapid heart rate, low blood pressure, low urine output and constipation. Urine color should be light and clear; dark urine or infrequency of urination is a common sign of dehydration. You can check for dehydration by pulling up the skin on the back of the hand for a few seconds; if it does not return to normal almost immediately, the person is probably dehydrated.

How to Prevent Dehydration

Not everyone needs to drink eight glasses of water every day. Generally speaking, larger people need to drink more fluids than smaller ones, and it doesn’t have to be just water. Many fruits (especially watermelon), vegetables and soups are mostly water-based. Coffee, tea and flavored waters also count. Some seniors may need to be encouraged to drink even when they’re not thirsty. Include drinks at mealtimes and offer them throughout the day. Keeping a water bottle next to the bed or a favorite chair can help those with mobility problems.

As we age, it is likely that many of us will need help for at least some period of time with life’s daily activities. (These include bathing, dressing, eating and using the bathroom.) And while we may not want to think much about being in that position some day, it would be a good idea to start thinking now about who will take care of us in our old age.

According to a 2011 study by the U.S. Department of Health and Human Services, about half of all informal caregiving is provided by adult children, with spouses providing another 20%. In addition to helping with daily activities, these informal caregivers navigate health care options and insurance benefits, manage medications, provide transportation to doctor appointments, and manage finances. Even when people go into nursing homes or assisted living facilities, their children or spouse still provide a lot of hands-on care.

But what if you don’t have a spouse or child who will be able to take care of you? Your children may live too far away, have health issues of their own, or have family and/or work obligations. Maybe your child or spouse predeceases you. Maybe you didn’t have children. According to a study by Urban.org, nearly one-fifth of women born after 1970 will not have any children.

You may find you need to rely on a sibling, niece or nephew, distant relative, friends or paid helpers. Assisted living facilities are an option for many people. Nursing homes are often regarded as the place of last resort, but people without caregivers are more likely to enter them.

Most of these options can be expensive, depending on the type of care you will need and how long you will need it. For example, the national average cost for a home health aide is $45,760 per year; for assisted living, it’s $43,200 per year; and for a semi-private room in a nursing home, it’s $80,300 per year. (Genworth has researched these costs in each state.) So, in addition to determining who will provide your care, you also need to consider how you will pay for it.

Medicare does not pay for assisted living and only pays for a limited number of days in a nursing home. Aid & Attendance benefits from the Veterans Administration will help pay these costs for wartime veterans and their spouses who qualify. MediCal will pay for nursing home care, but you have to spend down your assets in order to qualify. Long-term care insurance is an option, but if you wait too long it may not be affordable and you may not qualify. If you have substantial savings and/or have equity in your home, those resources can be used to pay for your care.

The point is this: It is never too late to start thinking about who will care for you in your old age, in what setting you want to receive that care, and how you will pay for it. Don’t assume your first choice is willing to provide hands-on care for you. Have that conversation with your candidates to make sure they are on board with your wishes. If not, you’ll need to come up with Plan B or Plan C. Without a plan, you could end up having no say in your end-of-life care.

During our life planning sessions, we can assist you with making the best plan so you aren’t left alone when you need help.  Call us today for a free consultation.

In part one, we met Jim and Sandy, now age 65, and reviewed their need for age-appropriate health care and decision-making documents.  We left off with the question, “How can Jim and Sandy take steps to prevent losing everything in the event their health fails?”

The costs of long-term care can be staggering.  Home health aides can cost, on average, $45,760 per year, based on care provided 44 hours per week.  Nursing home care on average is nearly double that – $80,300 per year for a semi-private room.

What are our chances of needing long-term care?  According to the Department of Health and Human Services, someone turning 65 today has a 70% chance of needing some type of long-term care services in their remaining years.  This means Jim and Sandy should be considering how they will pay for that care in the event one or both of them are part of that 70%.

Jim and Sandy’s choices include:

1. paying out of their own pocket for care,
2. purchasing long-term care insurance,
3. qualifying for government assistance programs, or
4. any combination of the first 3.

By planning early, before there’s a health care crisis, Jim and Sandy can take advantage of all three options, yet protect their home and any other cash or assets they wish.  This type of asset protection is done using a specially designed irrevocable trust.  Only a portion of Jim and Sandy’s assets would be transferred to the irrevocable trust, with the remainder either remaining in Jim and Sandy’s name, or held in a revocable trust with special provisions for the surviving spouse.

By transferring assets to an irrevocable trust, those assets would not be counted in the future (in most cases, after 5 years) if Jim or Sandy needed to qualify for government assistance to help pay for their long-term care.  If Jim or Sandy is a wartime Veteran, there are additional cash assistance programs available through the Veterans Administration that should be explored as another means to help pay for their care.

To round out the asset protection package, Jim and Sandy would also complete financial powers of attorney and health care advance directives along with living wills.  They would also explore purchasing an appropriate long-term care policy in the event one of them needed care sooner than expected.

By planning early, Jim and Sandy have tools in place to protect their home and other assets should one or both of them need care in the future – and there is a 70% chance they will.  Jim and Sandy have also lessened the emotional and financial stress placed on a family when a health care crisis does happen.  They’ve taken care of the heavy lifting with regard to their assets, so their family can just focus on what really matters – making sure they have the best care possible.

If you are interested in exploring how to protect your assets from the rising costs of care, please contact us to learn more.