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Why Everyone Should Have an Estate Plan

Do you have a will? A durable power of attorney? A health care proxy? If so, no reason to read on. If not, why not? Failure to create an estate plan risks causing discord in your family for generations to come.

The following are four often stated reasons for not having an estate plan:

  • Just not getting around to it
  • Feeling that one’s estate is too small to justify a will or revocable trust
  • Believing that joint ownership of accounts with children is an adequate plan
  • Not wanting to pay a lawyer to draw up the plan.

Just Not Getting Around to It

A discussion of why everyone needs an estate plan starts with a consideration of what “estate” means and what “estate plan” means. Your “estate” is simply everything you own: bank accounts, stock, real estate, motor vehicles, jewelry, household furniture, retirement plans, life insurance, etc.

Your estate plan is the means by which you pass your estate to the next generation. This can be accomplished through a variety of instruments. Most retirement plans and life insurance policies pass to whomever you name as beneficiaries. Property that is jointly owned passes to the surviving joint owner. Trust assets go as provided by the terms of the trust.

Only property you hold in your name comes under the instructions laid out in your will. If you don’t have a will, such property passes under the rules of “intestacy” set out in state law. In general, those rules provide that your property will be divided among your closest family members.

Problems often arise when people don’t coordinate all of these methods of passing on their estate. The will may say to divide everything equally among your children, but if you put an account in joint names with one child “for the sake of convenience” there could be a fight about whether that account should be put back in the pool with the rest of your property.

One of the most important aspects of a will is that it names an executor or personal representative to handle the probate of your estate. Litigation can develop simply because family members cannot agree on who should take on this role.

For those with small children, the will is indispensable because it permits you to appoint a guardian in case both parents pass away. It also permits you to choose a trustee to manage your estate for the benefit of your children. This person may or may not be the same as the guardian.

Estate Too Small?

For many individuals, especially those with smaller estates, the most important document is not the will, but a durable power of attorney. Through a durable power of attorney, you can appoint someone to handle your finances in the event that you are ever unable to do so yourself. It also permits you to choose your guardian in case one is ever needed, although one of the main purposes of a durable power of attorney is to avoid such a necessity.

Similar to a durable power of attorney, a health care proxy appoints someone you trust to make medical decisions for you in the event of your incapacity.

While a will protects your estate after you’re gone, a durable power of attorney and health care proxy protect you while you’re still here.

But I Took Care of It With Joint Accounts

Joint accounts are a poor estate planning tool. It is impossible to keep separate accounts for more than one child equal. This is especially true if you become incapacitated and no longer have control over the accounts. Trying to save a few dollars by managing your estate in this fashion runs the strong risk of causing discord in your family for generations to come. Why take the chance?

But I Don’t Want to Pay a Lawyer a Lot of Money for Some Simple Documents

You can buy software that produces most of the estate planning documents an attorney will prepare for you. And in nine cases out of ten, those documents will do just fine. But how do you know you’re not the tenth case? Do you have a taxable estate? Do you own significant amounts of tax-deferred retirement plans? Do you know how to fund the revocable trust provided on the computer program? Is there anything about your estate that is unusual, such as having a child with disabilities?

In short, if there’s anything about your situation that’s not plain vanilla, you need to see a lawyer. If you have any questions about your estate plan, you need to see a lawyer. As with joint accounts, the problems you may create by not getting competent legal advice probably won’t be yours, but may well be your children’s. Do you want to risk leaving that legacy?

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

The Need for Medicaid Planning

One of the greatest fears of older Americans is that they may end up in a nursing home. This not only means a great loss of personal autonomy, but also a tremendous financial price. Careful planning can help ease the financial burden.

Depending on location and level of care, nursing homes cost between $40,000 and $180,000 a year. Most people end up paying for nursing home care out of their savings until they run out. Then they can qualify for Medicaid to pick up the cost. The advantages of paying privately are that you are more likely to gain entrance to a better quality facility and doing so eliminates or postpones dealing with your state’s welfare bureaucracy–an often demeaning and time-consuming process. The disadvantage is that it’s expensive.

Careful planning, whether in advance or in response to an unanticipated need for care, can help protect your estate, whether for your spouse or for your children. This can be done by purchasing long-term care insurance or by making sure you receive the benefits to which you are entitled under the Medicare and Medicaid programs. Veterans may also seek benefits from the Veterans Administration.

Those who are not in immediate need of long-term care may have the luxury of distributing or protecting their assets in advance. This way, when they do need long-term care, they will quickly qualify for Medicaid benefits. Every case is different. Some have more savings or income than others. Some are married, others are single. Some have family support, others do not. Some own their own homes, some rent. Still, there are a number of basic strategies and tools that are typically used in Medicaid planning.

To start planning now,  reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

 

 

 

 

How You Can End Up in Medicare’s Donut Hole, and How You Get Out

Medicare prescription drug (Part D) plans can have a coverage gap—called the “donut hole”–which limits how much Medicare will pay for your drugs until you pay a certain amount out of pocket. Although the gap has gotten much smaller since Medicare Part D was introduced in 2006, there still may be a difference in what you pay during your initial coverage compared to what you might pay while caught in the coverage gap.

When you first sign up for a Medicare prescription drug plan, you will have to pay a deductible, which can’t be more than $445 (in 2021). Once you’ve paid the deductible, you still need to cover your co-insurance (also called co-payment) amount (depending on your drug plan), but Medicare will pay the rest. Co-insurance is usually a percentage (for example, 20 percent) of the cost of the drug. If you pay co-insurance, these amounts may vary throughout the year due to changes in the drug’s total cost.

Once you and your plan pay a total of $4,130 (in 2021) in a year, you enter the coverage gap, aka the notorious donut hole. Previously coverage stopped completely at this point until total out-of-pocket spending reached a certain amount. However, the Affordable Care Act has mostly eliminated the donut hole. In 2021, until your total out-of-pocket spending reaches $6,550, you’ll pay 25 percent for brand-name and generic drugs. Once total spending for your covered drugs exceeds $6,550 (the “catastrophic coverage” threshold for 2021), you are out of the coverage gap and you will pay only a small co-insurance amount.

Once you are in the coverage gap, your yearly deductible and co-insurance payments count toward the amount you need to pay to reach catastrophic coverage. The amount of out-of-pocket costs that you have to pay to reach catastrophic coverage will vary, depending on the type of drugs you take. In the case of brand name drugs, you will pay only a certain percentage of the price, but the entire price will count toward the amount you need to qualify for catastrophic coverage. With generic drugs, only the amount you pay will count toward getting you out of the donut hole.

Bear in mind that only payments for drugs that are covered by your plan count towards the out-of-pocket threshold. Your premium and the portion of the drug cost that Medicare pays do not count toward reaching catastrophic coverage, either. Also, any help with paying for Medicare Part D costs that you receive from an employer health plan or other insurance does not count toward this limit.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

 

Passing Assets to Grandchildren Through a Generation-Skipping Trust

Passing assets to your grandchildren can be a great way to ensure their future is provided for, and a generation-skipping trust can help you accomplish this goal while reducing estate taxes and also providing for your children.

A generation-skipping trust allows you to “skip” over the generation directly below you and pass your assets to the succeeding generation. While this type of trust is most commonly used for family, you can designate anyone who is at least 37.5 younger than you as the beneficiary (except a spouse or ex-spouse).

One purpose of a generation-skipping trust is to minimize estate taxes. Estates worth more than $11.7 (in 2021) have to pay a federal estate tax. Twelve states also impose their own estate tax, which in some states applies to smaller estates. When someone passes on an estate to their child and the child then passes the estate to their children, the estate taxes would be assessed twice—each time the estate is passed down. The generation-skipping trust avoids one of these transfers and estate tax assessments.

While your children cannot touch the assets in the trust, they can receive any income generated by the trust. The trust can also be set up to allow them to have some say in the rights and interests of future beneficiaries. Once your children pass on, the beneficiaries will have access to the assets.

Note however, that a generation-skipping trust is subject to the generation-skipping transfer (GST) tax. This tax applies to transfers from grandparents to grandchildren, even in a trust. The GST tax has tracked the estate tax rate and exemption amounts, so the current GST exemption amount is $11.7 million (in 2021). If you transfer more than that, the tax rate is 40 percent.

The trust can be structured to take advantage of the GST tax exemption by transferring assets to the trust that fall under the exemption amount. If the assets increase in value, the proceeds can be allocated to the beneficiaries of the trust. And because the trust is irrevocable, your estate won’t have to pay the GST tax even if the value of the assets increases over the exemption amount.

Generation-skipping trusts are complicated documents. Consult with your attorney to determine if one would be right for your family.  Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Can Life Insurance Affect Your Medicaid Eligibility?

When applying for Medicaid many people often forget about life insurance. But depending on the type of life insurance and the value of the policy, it can count as an asset.

In order to qualify for Medicaid, you can’t have more than $2,000 in assets (in most states). Life insurance policies are usually either “term” life insurance or “whole” life insurance. If a Medicaid applicant has term life insurance, it doesn’t count as an asset and won’t affect Medicaid eligibility because this form of life insurance does not have an accumulated cash value. On the other hand, whole life insurance accumulates a cash value that the owner can access, so it can be counted as an asset.

That said, Medicaid law exempts small whole life insurance policies from the calculation of assets. If the policy’s face value is less than $1,500, then it won’t count as an asset for Medicaid eligibility purposes. However, if the policy’s face value is more than $1,500, the cash surrender value becomes an available asset.

For example, suppose a Medicaid applicant has a whole life insurance policy with a $1,500 death benefit and a $700 cash surrender value (the amount you would get if you cash in the policy before death). The policy is exempt and won’t be used to determine the applicant’s eligibility for Medicaid. However, if the death benefit is $1,750 and the cash value is $700, the cash surrender value will be counted toward the $2,000 asset limit.

If you have a life insurance policy that may disqualify you from Medicaid, you have a few options:

  • Surrender the policy and spend down the cash value.
  • Transfer ownership of the policy to your spouse or to a special needs trust. If you transfer the policy to your spouse, the cash value would then be part of the spouse’s community resource allowance.
  • Transfer ownership of the policy to a funeral home. The policy can be used to pay for your funeral expenses, which is an exempt asset.
  • Take out a loan on the cash value. This reduces the cash value and the death benefit, but keeps the policy in place.

Before taking any actions with a life insurance policy, you should talk to your attorney to find out what is the best strategy for you. To learn more, contact Amy Stratton or Kristen Prull Moonan.

What Is the Generation-Skipping Transfer Tax?

The estate tax gets all the press, but if you are leaving property to a grandchild, there is an additional tax you should know about. The generation-skipping transfer (GST) tax is a tax on property that is passed from a grandparent to a grandchild (or great-grandchild) in a will or trust. The tax is also assessed on property passed to unrelated individuals more than 37.5 years younger.

The GST tax was designed to close a loophole in the estate tax. Normally, grandparents would leave their estates to their children, incurring estate taxes. Then the children would pass on the estates to the grandchildren, incurring estate taxes again. Wealthy individuals realized they could leave their estates to their grandchildren directly and avoid one set of estate taxes. Congress established the GST tax to prevent this by taxing transfers to related individuals more than one generation away and to unrelated individuals more than 37.5 years younger.

A GST tax is imposed even when property is left in trust for a grandchild. For example, suppose a grandparent sets up a trust that leaves income to her children for life and then the remainder to her grandchildren. The part of the trust left to the grandchildren will be subject to a GST tax.

The GST tax has tracked the estate tax rate and exemption amounts, so the current GST exemption amount is $11.7 million (in 2021). If you transfer more than that, the tax rate is 40 percent.

To learn more, contact Amy Stratton or Kristen Prull Moonan.

Court Case Illustrates the Danger of Using an Online Power of Attorney Form

A recent court case involving a power of attorney demonstrates the problem with using online estate planning forms instead of hiring an attorney who can make sure your documents are tailored to your needs.

Mercedes Goosley owned a home in Pennsylvania. In 2013, she named one of her six children, Joseph, as her agent under a power of attorney using a boilerplate form that Joseph downloaded from the internet. Unbeknownst to Joseph, the power of attorney required Mercedes to be declared incompetent for Joseph to act as her agent.

Powers of attorney can be either immediate or springing. An “immediate” power of attorney takes effect as soon as it is signed, while a “springing” power of attorney only takes effect when the principal becomes incapacitated. The problem is that springing powers of attorney create a hurdle in order for the agent to use the document. When presented with a springing power of attorney, a financial institution will require proof that the incapacity has occurred, often in the form of a letter from a doctor.

In this case, Joseph began acting for Mercedes without getting a declaration of her incompetency. After she moved into a nursing home, Joseph listed her home for sale and accepted a purchase offer as agent for his mother under the power of attorney. At the time, Joseph’s brother, William, was living in the home, and Joseph instructed William to move out. This resulted in a dispute that ended up in court, with William arguing that Joseph did not have authority to act as his mother’s agent. A Pennsylvania appeals court eventually determined that Mercedes had intended to execute an immediate power of attorney as evidenced by the fact that Joseph had held himself out as Mercedes’ agent since 2013 and routinely conducted affairs on her behalf without Mercedes restricting or objecting to his agency.

While the court ultimately ruled in Joseph’s favor, Joseph and Mercedes could have saved time and money by consulting with an attorney before signing the power of attorney. An attorney would have been able to explain the difference between an immediate and springing power of attorney and tailor the power of attorney to Mercedes’ needs. Talk with your attorney before creating any estate planning documents.

To read the court’s decision in the case Stecker, et al v. v. Goosley, et al (Pa. Super. Ct., No. 1266 EDA 2020, April 15, 2021), click here.

To learn more, contact Amy Stratton or Kristen Prull Moonan.

President Biden Proposes Billions in Increased Funding for Home Health Care

President Biden has introduced a plan to spend $400 billion over eight years on home and community-based care for the elderly and people with disabilities. The money would go to expand access to care and support higher-paying caregiving jobs.

As the elderly population grows, our long-term care system is becoming increasingly strained. The AARP found that in 2020, more than one out of every five Americans — 21.3 percent — were acting as caregivers, either caring for a relative or a close friend. Many women have had to drop out of the workforce to care for aging family members. In the meantime, paid caregivers are typically underpaid and overworked, with one in six paid caregivers living in poverty. And our elderly population is only expected to grow: By 2030, one in five Americans is projected to be over 65.

Recognizing that the United States is “in the midst of a caregiving crisis,” President Biden has proposed boosting funding for home and community based long-term care as part of his $2 trillion American Jobs Plan. While the plan does not have specifics, it proposes to expand access to long-term care services under Medicaid that help people stay at home and avoid care in an institution. Currently, only nursing home care is mandated under Medicaid, with states providing care at home or in the community at their discretion. Waiting lists for home and community-based services under state Medicaid programs can stretch on for years, and only a small fraction of those who need care receive these services, according to Kaiser Health News.

Among other things, President Biden wants to extend the Money Follows the Person program, which is a federal initiative designed to move people out of nursing homes and into home-based care. The program provides grants to states to create innovative home and community-based programs.

President Biden is also proposing that money be put toward creating well-paying caregiving jobs and that home health care workers be able to join a union and engage in collective bargaining. The White House states that this “will improve wages and quality of life for essential home health workers and yield significant economic benefits for low-income communities and communities of color.”

President Biden’s plan does not provide details, leaving It up to Congress to fill in the particulars when drafting its legislation. It is unclear how much of Biden’s proposed funding will make it into a final bill.

To read about the American Jobs Plan, click here.

For more about the home health care proposal, click here and here.

Or reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Partners Again Recognized for Excellence in the Law for Wills-Trusts-Estates

Our partners, Kristen Moonan and Amy Stratton, are honored to be recognized by Rhode Island Monthly‘s Excellence in the Law issue for the third year in a row. They were each noted for excellence in the category of “Wills, Trusts and Estates.”

Rhode Island’s top attorneys are chosen to receive the Rhode Island Monthly honor based on attorney peer reviews, professional standing, feedback from related professionals, and other data collected by a third party survey and data company.

“We again are heartened to be included among the esteemed legal professionals honored by Rhode Island Monthly.”

Medicaid Recipients Have a Little More Time to Spend Down Their Stimulus Money

The one-year deadline for nursing home residents on Medicaid to spend down their first round of stimulus checks is here, but they may have a little extra time.

In March 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act authorized $1,200 stimulus checks to most Americans, including Medicaid recipients. Another round of $600 checks was authorized in December 2020, and $1,400 checks were ordered in February 2021. The stimulus checks are not considered income for Medicaid recipients, and the payments have been excluded from Medicaid’s strict resource limits for 12 months.

While the one-year deadline for spending down the first round of checks is here, another COVID-19 bill gives beneficiaries more time. The Families First Coronavirus Response Act passed in March 2020 provides that if you were enrolled in Medicaid as of March 18, 2020, the state cannot terminate a recipient’s benefits even if there is a change in circumstances that would normally cause the benefits to be stopped. The law states that the recipient’s Medicaid coverage must continue through the end of the month in which the Secretary of Health and Human Services declares that the public health emergency has ended. The public health emergency is set to end April 20, 2021, but it will likely be extended.

While Medicaid recipients may have a little extra time, they shouldn’t delay too long in spending down the money if it has pushed them over the resource limit, which is $2,000 in most states. The following are examples of what a Medicaid recipient may be able to spend the money on without affecting their eligibility:

  • Make a payment toward paying off debt.
  • Make small repairs around the house.
  • Update personal effects. Buy household goods or personal comfort items. Buy a new wardrobe, electronics, or furniture.
  • Buy needed medical equipment, see a dentist or get eyes checked if those items aren’t covered by insurance.

While Medicaid recipients usually cannot gift money or assets and remain eligible for benefits, recipients in at least some states should be able to make gifts from the stimulus money during the first 12 months following receipt. If you have questions about how you or a family member in a nursing home can spend the money, contact Amy Stratton or Kristen Prull Moonan.