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 Partners Howard S. Krooks, Esq., CELA, and Ellen S. Morris, Esq. have been accredited by the Department of Veterans Affairs (VA), enabling them to assist individuals with VA benefits. They both can prepare, present, and prosecute claims for veterans benefits before the VA.
We provide The Elder Law Update to our clients and our colleagues who make up a wide range of service providers for seniors and people with disabilities to facilitate the dissemination of helpful and accurate information. We thank you for letting us share our knowledge with you. We continue to welcome your comments and questions. You may send them to Info@ElderLawAssociates.com. |
What Happens If You Die Without a Will?
 We all know we are supposed to do estate planning, but not all of us get around to it. So what happens if you don't have a will when you die? Your estate will be distributed according to state laws, which may or may not be the way you want it to be distributed.
Dying without a will is called dying "intestate." Each state has laws that determine what will happen to your estate if you don't have a will. If you are married, most states award one-third to one-half of your estate to your spouse, with the rest divided among your children or, if you don't have children, to other living relatives such as your parents or siblings. If you are single, most states provide that your estate will go to your children or to other living relatives if you don't have children. If you have absolutely no living relatives, then your estate will go to the state.
Note that any jointly held assets, such as bank accounts or houses, will go directly to the co-owner. In addition, any life insurance policies or retirement accounts will go directly to the beneficiary designated on the account. And if you have a trust, any assets in the trust will go to the beneficiary designated in the trust.
One purpose of a will is to name a guardian for your young children; if you do not have a will, the court will determine who will act as guardian. The court will also appoint the person who will administer your estate. In addition, if you are unmarried, but have a partner, your partner will not inherit anything from your estate without a will naming him or her as a beneficiary.
The best way to ensure your estate is distributed according to your wishes is to plan your estate with a will and/or a trust.
For a full list of state intestate laws, click here. |
Supreme Court Says Deceased Employee's Ex-Wife Can Get His Pension Benefits
 A new Supreme Court decision illustrates the importance of making sure your beneficiary designations are up-to-date. The Court has unanimously ruled that an employer must distribute a deceased employee's retirement benefits to his ex-wife even though she had renounced the benefits in their divorce. Kennedy v. Plan Administrator for DuPont Sav. and Investment Plan (U.S., No. 07-636, Jan. 26, 2009).
William Kennedy worked for DuPont Co. and had a retirement plan through the company. His wife, Liv, was the designated beneficiary of the plan. In 1994, William and Liv divorced and the divorce decree stated that Liv waived the right to any of William's retirement plans. However, William never changed the beneficiary designation on his retirement plan. When William died, his daughter, who was the executor of his estate, asked DuPont to distribute the plan to the estate. But DuPont relied on William's beneficiary designation and instead distributed the plan benefits, totaling $402,000, to Liv.
William's estate sued DuPont under the Employee Retirement Income Security Act (ERISA), claiming that in signing the divorce decree, Liv had voluntarily relinquished, or waived, her right to the plan benefits. A U.S. district court ordered DuPont to pay the value of the plan to the estate. Liv appealed and the U.S. Court of Appeals for the Fifth Circuit reversed the district court's ruling, holding that Liv had not waived her right to the plan benefits. DuPont then appealed.
In an opinion written by Justice David Souter, the U.S. Supreme Court agrees with the Court of Appeals and holds that according to ERISA, DuPont had to follow William's instructions on the original document and distribute the retirement benefits to Liv. The Court notes that William had an easy way to change the beneficiary designation, but he chose not to.
To read the full text of the Supreme Court's opinion in the case, click here. (If you do not have the free PDF reader installed on your computer, download it here.)
For more on keeping beneficiary designations up to date, click here. |
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Book Review: Living and Dying in a Long-Term Care Facility: Notes From a Nursing Home Doctor
 Gilah Silber, M.D. Living and Dying in a Long-Term Care Facility: Notes From a Nursing Home Doctor. BookSurge Publishing, 2007. 179 pages.
$14.95 from Amazon (click on book to order).
As the population ages, more and more people are entering nursing homes. But what is life like in these often-dreaded facilities? Living and Dying in a Long-Term Care Facility offers a behind-the-scenes look at the long-term care system from a nursing home physician's perspective.
The author, Gilah Silber, M.D., is a geriatrician who has worked in nursing homes for the past decade. Silber calls this book a "travel guide" through life in a long-term care facility. The book tracks a typical day in Silber's life and along the way presents candid portraits of the patients she treats and their families. Silber's stories break stereotypes about typical nursing home residents, showing a broad spectrum that includes the elderly but still mentally sharp, the middle-aged but mentally ill, and the young but morbidly obese.
Through her stories Silber explains the aging experience, how a nursing home runs, and how a care team works. Silber is critical of the current system, in particular how care is often provided according to a business model (whether the patient will make the nursing home money) when, in her opinion, it should be provided according to an ethical model (what is best for the patient). Whether or not you have family in a nursing home, Living and Dying in a Long-Term Care Facility is an eye-opening and engaging read that will provoke thought about how institutions handle aging and the end of life.
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10 Steps to Less Stressful Caretaking
 Taking care of an elderly loved one, whether due to dementia or illness, can be exhausting and stressful. Often due to the lack of outside help, a devotion to the person needing care, or the tunnel vision that can accompany exhaustion, caretakers don't take care of themselves.
But they must. Failure to do so can lead to burnout, injury or illness. If you are the caregiver, any of these results will harm your ability to care for your loved one.
Here are some ways to take care of yourself and make sure you can take care of your loved one. The list is adapted from New York Times columnist Jane Brody's excellent Nov. 17, 2008, column, "Caring for Family, Caring for Yourself."
- Take a break every day. Make sure you have some down time to relax, whether it's watching television, reading the newspaper, or calling a friend. Make sure you do at least one thing for yourself every day.
- Take a break every week. If possible, get out of the house at least once a week to do something you want to do -- go to the movies, have dinner with friends, whatever works for you. If you cannot get someone to cover for you, have friends over to your house.
- Get respite. Take a break of at least a week at least once a year. You can hire help in the house or arrange for a respite stay at an assisted living facility or nursing home.
- Get regular exercise. It's necessary for your health and to moderate any stress you may be feeling. If you can't get out of the house to exercise, buy or rent a stationary bicycle or other exercise equipment.
- Eat well. Make sure you stay healthy and have sufficient energy to do what you need to for your loved one.
- Get enough sleep. Lack of sleep will sap your patience and reserves, making it more difficult for you to provide the care you would like to give your loved one.
- Join a support group. While you may or may not be in this alone, you're not the only one in this situation. Others are going through similar experiences. Here are sources for finding support groups: the National Family Caregivers Association (www.nfcacares.org
) and its Community Action Network (www.thefamilycaregiver.org), and the Family Caregiver Alliance and its online support group (www.caregiver.org).
- Hire a geriatric care manager. An experienced geriatric care manager can help you determine whether your loved one is receiving the most appropriate care and what resources in the community are available to assist you. For more on geriatric care managers, click here.
- Consult with an elder law attorney. In order to access many of the programs recommended by the geriatric care manager, your loved one will have to qualify financially. An elder law attorney can help you qualify for these benefits. In addition, make sure you don't get hit with a double financial whammy of losing years of earnings while you're caring for your family member and losing his or her assets due to squabbles with other family members or Medicaid estate recovery. Also, you may be entitled to some pay by the state for the care you are providing.
- Lotsa Helping Hands. Check out www.lotsahelpinghands.com as a resource for getting volunteer help in your community and coordinating the help your family and friends already provide.
In short, think of the care you are providing as a marathon, not a sprint. You need to pace yourself and conserve your energy for the long-term. Too much stress and exhaustion won't help your loved one. | |
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IRS Clarifies Recent Law Waiving Account Distribution Rules for 2009
The Internal Revenue Service (IRS) has issued guidance to financial institutions clarifying the new law that allows seniors to avoid making required withdrawals from depleted retirement accounts in 2009.
Taxpayers over 70 1/2 years old generally must begin withdrawing a certain percentage of the balance of retirement accounts like IRAs and 401(k)s each year or pay, in addition to income tax, a 50 percent excise tax on the amount that should have been withdrawn but was not. While taxpayers who turned 70 1/2 in 2008 can delay the 2008 distribution until April 1, 2009, the guidance makes clear that those seniors must still take their withdrawals because the new law only suspends required withdrawals for the 2009 tax year.
Some beneficiaries must deplete an IRA by the fifth anniversary of the IRA owner's death. The guidance explains that if a beneficiary must take required minimum distributions under the five-year rule and the fifth year is 2009, the beneficiary has an extra year (until 2010) to liquidate the account.
Finally, according to the guidance, the IRA trustee is not required to give the IRA owner a notice detailing the required withdrawal for 2009. Instead, the trustee may, if he or she wishes, send a statement that the required distribution is zero or a statement showing what the required distribution would have been and an explanation of the waiver.
For the IRS guidance, found in Notice 2009-9, click here.
For more on retirement plan distributions, click here. |
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaid and long term care planning including long term care insurance, Medicaid applications, home and community-based Medicaid waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as litigation.
We assist clients in planning for the possibility of disability, incapacity, home health care, assisted living and/or nursing home placement. Our firm enables clients to avoid impoverishment caused by the escalating cost of long term care, to maintain their right to make health care decisions and to avoid unnecessary medical treatment.
We hope you have enjoyed The Elder Law Update. If you have questions about something you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at Info@ElderLawAssociates.com.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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Our newly updated brochure, Navigating Medicaid: Parts A, B, C & D is now available. 