States You Shouldn’t Be Caught Dead In:

Robert Negele is a 90-year-old retired executive who has lived in Connecticut for almost 40 years. Despite decades of community involvement, including service on corporate and charity boards, he and two of his children who live nearby are seriously considering leaving the state.

“It’s a prime possibility we discuss at Sunday night dinners,” Mr. Negele says.

Nineteen states and the District of Columbia, home to just over one-third of the U.S. population, levy an estate tax on the assets of people who die or an inheritance tax on heirs receiving assets. Jim Haynes

A big factor in their deliberations: Connecticut’s estate and gift taxes, which tax assets above $2 million per individual at rates as high as 12%. Mr. Negele says some snowbirds at his Stamford retirement home have shifted their tax home to Florida, while others he knows have left the state altogether.

Mr. Negele is far from alone, estate planners say. “State death taxes are considerably more important than they used to be, and we spend a lot of time planning for them,” says Beth Kaufman, an estate-tax lawyer at Caplin & Drysdale in Washington, in part because of changes in the federal tax laws.

Nineteen states and the District of Columbia, home to just over one-third of the U.S. population, levy an estate tax on the assets of people who die or an inheritance tax on heirs receiving assets. Maryland and New Jersey have both, although each allows offsets to prevent double taxation.

ImageIn January, Congress voted to keep Uncle Sam’s inflation-adjusted estate exemption above $5 million per individual ($10 million per married couple). The change excluded almost all Americans from the federal levy, so state-level taxes loom larger by contrast. (This year, the federal exemption is $5.25 million.)

Many states also have far smaller exemptions than Uncle Sam’s. The threshold is $1 million for estate taxes in Massachusetts, New York, Oregon and Minnesota, and just $675,000 in New Jersey. Pennsylvania’s and Iowa’s inheritance taxes have no exemption in some cases.

However, all states allow surviving spouses to inherit tax-free from their partners, says James Walschlager, an estate-tax specialist at CCH, a unit of Wolters Kluwer.

Only Delaware and Hawaii track the U.S.’s $5 million-plus exemption, according to Mr. Walschlager (see table on page B10).

Rates can be high as well. The top rate often is double digits, with Washington state’s the highest: 20%.

Read the full article>

Stay well,

Brian

10 Things to Know About Medicare Open Enrollment

10 Things to Know About Medicare Open Enrollment

 

A good read from Aging Care:

Navigating the Medicare maze is confusing enough, but the added pressure of the looming open enrollment deadline can be overwhelming. Here are 10 things seniors should know.

How to Get Guardianship of an Elderly Parent:

As an attorney member of a great site for elders called AgingCare.com I come across relevant information for my clients and all seniors or elders. This article by Marlo Sollitto answers a lot of common questions regarding guardianship of a parent. Image

When an elder loses the ability to think clearly, it affects his or her ability to participate meaningfully in decision-making. When the person you are caring for is unable to make rational, clear-headed decisions about health care, finances, or other aspects of life, guardianship may be the next step (particularly if there is disagreement among family members about these issues).

Guardianship is an option when your elderly parent does not have a power of attorney or advanced directive in place. In order to act as someone’s legal guardian, you have to go to court to have the person declared incompetent based on expert findings.

In guardianship cases, also known as conservatorship, a court declares a person incompetent and appoints a guardian. The court transfers the responsibility for managing finances, living arrangements, and medical decisions to the guardian. This procedure can take some time. If family members disagree about the need for guardianship or who should act as a guardian, this can be a painful, prolonged, and costly process that may leave everyone involved feeling angry, guilty, or both.

What does having guardianship do?

A guardian has a legal duty to act in the best interests of the individual. A guardian has total control over the person they are appointed to serve. Sadly, it strips your loved one of many legal rights. But it might be the only way you can gain the legal authority to make decisions and carry out many essential tasks that he or she is no longer able to handle, such as managing and protecting finances, or arranging admission to a nursing home. When is a guardian appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life. In other words, he or she can no longer make decisions. The person alleged to be incapacitated has a right to an attorney and to object to the appointment of his or her guardian or conservator.

When your elderly parent has a guardian or conservator appointed, in legal terms, your parent is called a “ward.” When the court appoints a guardian, you may have the following responsibilities:

  • Determine where the ward will live
  • Monitor the residence
  • Provide consent to medical treatments
  • Decide how finances are handled, what types of financial benefits the ward needs, and how property will be invested
  • Consent to and monitor non-medical services, such as education and counseling
  • Release confidential information
  • Keep records of all expenditures
  • Make end-of-life decisions
  • Act as representative payee
  • Maximize independence in least restrictive manner
  • Report to the court about the guardianship status at least annually

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court doles out responsibilities to several parties. For example, a bank trustee might oversee financial decisions, while more personal ones like living arrangements are left to a family member. Generally, the court requires reports and a financial accounting at regular intervals or whenever important decisions are made.

————————-

Let me know if you have any questions.

Regards,

Brian

 

Plan wisely for your “$300 Million Dollar” estates…

Here’s an interesting article from Joanna L. Grossman, a Justia columnist, and Professor of Family law at Hofstra University about the trials and tribulations of such an estate and Huguette Clark’s Will…

Rights and the Battle Over Huguette Clark’s Will

 Image

Huguette Clark died in 2011, at the age of 104.  She was the daughter of a man who made a vast fortune in the copper business and then bought himself a seat in the U.S. Senate.  She outlived everyone—her father by almost 80 years, and a sibling by a full century.  She was enormously rich and left an estate of at least $300 million.  Where is this money to go?

Huguette had been married once, but briefly; and she never had children.  According to newspaper accounts, this strange and rather pathetic woman had, in her old age, led an oddly reclusive life.  Most of us prefer to see as little as possible of the inside of a hospital.  But not Huguette.  In fact, despite owning palatial homes in Manhattan, Santa Barbara, and in the country in Connecticut, she spent the last twenty years of her life in a private room in a hospital in the Beth Israel Medical Center in New York.  When she first arrived, in 1991, she did need considerable medical attention.  But even when her condition improved, she chose to stay where she was.  And stay she did, for two decades, in a quiet room, playing with dolls, watching cartoons on television, and seeing almost nobody except for doctors and nurses—and hospital fund-raising staff.

Her situation was, to be sure, unusual (hospitals usually try to chase people out as soon as they can); but Huguette Clark was not an ordinary patient; she was far too rich for that.  The hospital was only too happy to keep her—and to use her as a money spigot.  In her twenty years there, she showered the hospital, doctors, and nurses with lavish gifts—a Manet painting, for example; and gifts worth millions of dollars to her long-time nurse.  The hospital, according to email records, was never really satisfied; officials hungrily pressed her for more and more of the same.   Huguette could well afford to be generous.   She was worth, after all, hundreds of millions of dollars.

Huguette Clark’s Testamentary Plan

In 2005, Huguette, who was then about 98 years old, executed two wills.  The first, done in March, left her estate to relatives—grand-nieces and nephews, descendants of Huguette’s half-sister.  Then, six weeks later, she executed an entirely different will.

In this second will, she cut off the relatives entirely—explaining that she had never had much contact with them (which was true); she elected instead to leave the money to the “true objects” of her “bounty.”  She had a lavish estate in Santa Barbara called “Bellosguardo”; she left this to a foundation for the arts.  There were also gifts to her lawyer, her accountant, her doctor, her nurse, and the hospital itself.  The lawyer was apparently the one who drafted the will, with some input from the accountant.  The two men were also named executors; and trustees of the California foundation.  The relatives, who smelled money lying just beyond their reach, went to court, trying to overturn the will that had disinherited them.

Why Clark’s Estate Was Ripe for a Contest

Huguette Clark’s estate was ripe for a will contest—a proceeding in which disgruntled heirs can challenge the validity of a decedent’s will.  The big two of will contests are two doctrinal twins—lack of capacity, and undue influence.  Lack of capacity simply means that the will-maker was too demented to make a will, or too crazy to do so.  Undue influence is a rather strange concept: It implies that somebody more or less mesmerized the poor testator, so that the will was the product, not of his will (or her will), but the will of the evil influencer.  The two allegations are very often found together.  Wills can also be challenged on grounds of fraud or duress, or because they weren’t formalized correctly.

Actual will contests are fairly rare, and most of them are failures.  A will made by a professional, on behalf of a person of ordinary mental capacity, is pretty safe against attack.  Some wills, however, are much more vulnerable than others.  In this case, there were a number of clear signs of danger.  First:  Huguette was very, very old.  And very odd.  Apparently, she was shrewd enough when it came to managing her investments, but a woman just short of 100 years old, living for years in a hospital bed, playing with dolls:  Those are definite red flags.

The timing of the second will also raises a certain number of suspicions.   A mere six weeks after leaving her vast fortune to relatives, she does a complete about-face, and cuts them out entirely.  What happened in this short time?  She never saw the relatives before Will Number One; they didn’t see her in the interim; and nothing seemed to happen to sour her on these people.  So what went on?  Perhaps the doctors, nurses, and hospital officials somehow got to her; perhaps they cajoled or persuaded her to drop the relatives, and leave a good share of the money to them.  Indeed, there are claims that her doctor dropped in on her three times or more, between the dates of the two wills.

Which leads us to the second group of red flags, clustered about the concept of “undue influence.”  The lawyer who drafted the will also benefited from it.  This is not just bad form, but outright suspicious behavior.  Under New York law, such an arrangement triggers automatic scrutiny by the probate court because it is inherently suspicious. Who, in their right mind, chooses to make gifts to a lawyer on top of the generous fees that the lawyer will charge?  The accountant who helped the lawyer in the drafting process also benefited from the will.  And so did the doctors and nurses who had daily contact with the testator.  And so did the hospital, where she had been cocooned for more than fourteen years, by the time the will was executed.  Not only did the lawyer and the accountant get money under the will; they were also appointed executors—meaning that they were empowered to manage the estate, and could, and likely would, collect the fat harvest of fees that an estate of this enormous size would generate.  In addition, they were named as trustees of her charitable trust:  another potential source of power and gravy.  And the sheer amount of money at stake makes everyone’s behavior all the more suspicious.

Could the Will Contest Have Been Avoided?

These are not necessarily winning arguments.  But they raised a certain amount of suspicion; and at the very least, were certainly strong bargaining chips in settlement discussions.  When a will benefits somebody in a “confidential” position—a lawyer, for example, or a personal physician, cases often say that undue influence is “presumed.”  Could the lawyer have avoided the problems which the will had raised?   Not entirely.  Nobody could have made Huguette younger; and it would have been hard to make her seem less odd.  The capacity argument is, however, the weaker of the two main arguments; and her lawyers could surely have lined up a parade of witness to testify that she was shrewd and knew exactly what she was doing.

The undue influence problem was almost certainly mishandled.  At the very least, an outside lawyer should have been brought in to draft the will.  (Although maybe any outside lawyer worth her salt would have raised serious questions about these bequests).  A lawyer who drafts a will which benefits him so lavishly is making a serious mistake.  Not a fatal mistake, necessarily; what the lawyer did is not illegal.  But it weakens the will, beyond a doubt.  It raises, as we said above, the specter of undue influence, which the lawyer would have been hard-pressed to rebut at trial.  And it raises, too, at least the suspicion that the lawyer was acting unethically.

Huguette’s will, in short, suggests some fairly serious legal problems.   It suggests an even more serious social problem.  Huguette’s basic mistake (if you could call it that) was living to be 104.  The longer people live—and they are living longer and longer—the greater the likelihood of serious dementia; the suspicion of serious dementia is even more likely.   And indeed, even without dementia, the older you are, the more vulnerable you are, both mentally and physically.

Huguette had no close relatives, which is not the usual case.  Close family are usually a comfort and support for the old and weak; but not always.  Brooke Astor, a prominent figure in New York City’s art scene, lived an even longer life than Huguette.  But in her last years she was ill, demented, and helpless.  Her own son and only child, Anthony Marshall, was accused of bilking and mistreating her; and ultimately was put on trial for forging checks and other instruments, and stealing right of out of her accounts.  Perhaps he was tired of waiting for his inheritance.  At age 89, Marshall was put in jail for his crimes, although a deteriorating mental condition led to his release.  Astor’s lawyer is still serving time for his role in the fraud.

Huguette was apparently not seriously demented; perhaps she knew exactly what she was about.   But she had nonetheless delivered herself into the hands of doctors, nurses, and the administrators of the Beth Israel Medical Center.  She had made herself totally dependent on them.  She was, in a sense, within their power.

Even though Huguette had chosen what was, in effect, a kind of solitary confinement, the fact remains:  She was shut her off from the world, and from whatever family she might have cultivated; she was in the hands of strangers whose motives were probably not the purest of the pure.  This might be an unfair judgment with regard to her doctors, or to her faithful nurse, to whom she was so grateful; but it is surely true of the people who ran the hospital, who obviously saw their long-term guest as a goose that was laying clutch after clutch of golden eggs.

To be sure, Huguette’s relatives have been hardly acting out of love, or a passion for justice.   They had nothing to do with her during her lifetime (a situation that was partly her own doing); after her death, they were simply after her assets.   Money, generally speaking, is a tremendous advantage for anyone, and for the very old and frail, it can buy the best of care.  But it also is a fatal attraction for fortune hunters of one kind or another.  The money Huguette paid for her hospital room (at about $1,200 a day) bought her a kind of antiseptic prison cell. She had closed the door on the world of her own volition, but after a while, there was really no way out.

Hashing It All Out: The Settlement

On the eve of jury selection for the trial in the case, the lawyers on all sides exchanged a final flurry of e-mail messages and reached a settlement.  The negotiating table was big; it included not only the family members who had been left out in the second will, but also all the beneficiaries to the second will, the charitable entities that stood to benefit, and, because charitable institutions were involved, the Attorney General of New York.

As a technical matter, the settlement calls for the April 2005 will to be “reformed” to reflect significant changes to its provisions and then admitted to probate.

The substance of the settlement is this:

  • The attorney and the accountant get nothing, except for relief from liability for their management of the estate so far.  They still face liability in pending malpractice suits, and the reformed will leaves proceeds of any such lawsuit to Clark’s family members. They also lose their lucrative executor positions.  The estate, from this point forward, will be co-administered by a Clark family member and a public servant.
  • The nurse, who clearly was a devoted caregiver but who had already received $30 million in lifetime gifts from Clark, receives nothing under the reformed will.  In fact, she must pay back $5 million to the estate, in recognition of the fact that she could not satisfy the burden of proving, with clear and convincing evidence, that she did not take advantage of her confidential relationship with Clark in soliciting or encouraging these gifts.
  • The family members, who brought the case because they were abruptly disinherited by the second will, will share a pot of $34.5 million.  Their attorneys will collect almost as much in fees paid from the estate.
  • Assorted smaller gifts to her doctor ($100,000); her assistant and friend ($500,000); the caretaker of her Santa Barbara home (two years’ salary); the caretaker of her Connecticut home (one year’s salary); her goddaughter ($3.5 million); and Beth Israel Hospital ($1 million) are part of the settlement.
  • The Corcoran Art Gallery, in Washington, D.C., which holds a large collection of art donated by Huguette’s father, will receive $10,000,000 plus the fifty percent of the proceeds of the sale of her Claude Monet “Water Lilies” painting (valued at $25 million).
  • The reformed will establishes a charitable foundation to promote the arts, operated out of Huguette’s mansion in Santa Barbara, which has stayed well-maintained but empty for decades.  The foundation receives the Santa Barbara property (worth $82 million!), her doll collection (surprisingly valuable), and $4.5 million in cash.

Conclusion

This story has, in a way, a happy ending.  Huguette’s money goes mainly for charitable and public purposes; the hospital gets some benefit; the relatives also receive money, perhaps as a sort of reward for pressing a claim against arrangements which were legally and ethically dubious; and some players in the drama who probably stepped over the line are punished by the loss of valuable perks.  The facts of this case are, of course, quite unique.  But there are broader lessons here for lawyers who deal with the elderly; for members of their family; for the professionals who deal with them; and for the old people themselves.  The most basic lesson is this:  Big money and advanced age can be a dangerous, poisonous, explosive combination.   Beware.

– See more at: http://verdict.justia.com/2013/09/27/last-rights-and-the-battle-over-huguette-clarks-will#sthash.r4tiulnn.dpuf

Regards,

Brian

If You Have Medicare, No Need to Go to Health Insurance Marketplace:

Today is the day the Affordable Health Care act starts to take on meaning. The government has set up a Health Insurance Marketplace–https://www.healthcare.gov –where people can sign up or learn more. However, the digital demands have overloaded the system so you may find delays in viewing pages or logging in for information. So while your waiting for the internet to clear up, you can read some info–specific to seniors with Medicare– in an article here:

While the Obama administration is stepping up efforts encouraging uninsured Americans to enroll in health coverage from the new online insurance marketplaces, officials are planning a campaign to convince millions of seniors to please stay away – don’t call and don’t sign up.

“We want to reassure Medicare beneficiaries that they are already covered, their benefits are not changing and the marketplace doesn’t require them to do anything,” said Michele Patrick, Medicare’s deputy director for communications.

Learn how the new health law works for you and your family

medicare-pillTo reinforce the message, she said the 2014 “Medicare & You” handbook – the 100-plus-page guide that will be sent to 52 million Medicare beneficiaries next month — contains a prominent notice: “The Health Insurance Marketplace, a key part of the Affordable Care Act, will take effect in 2014. It’s a new way for individuals, families, and employees of small businesses to get health insurance. Medicare isn’t part of the Marketplace.”

Still, it can be easy to get the wrong impression.

“You hear programs on the radio about the health care law and they never talk about seniors and what we are supposed to do,” said Barbara Bonner, 72, of Reston, Va. “Do we have to go sign up like they’re saying everyone else has to? Does the new law apply to us seniors at all and if so, how?”

Enrollment in health plans offered on the marketplaces, also called exchanges, begins Oct. 1 and runs for six months. Meanwhile, the two-month sign-up period for private health plans for millions of Medicare beneficiaries begins Oct. 15. In that time, seniors can shop for a private health plan known as Medicare Advantage, pick a drug insurance policy or buy a supplemental Medigap plan. And in nearly two dozen states, some Medicare beneficiaries who also qualify for Medicaid may be choosing private managed care plans. None of these four kinds of coverage will be offered in the health law’s marketplaces.

Since many of the same insurance companies offering coverage for seniors will also sell and advertise policies in the marketplaces, seniors may have a hard time figuring out which options are for them.

“Over the next six months seniors will be bombarded with information and a lot of it will be conflicting and confusing,” said Nick Quealy-Gainer, Medicare task force coordinator for Champaign County Health Care Consumers, an Illinois advocacy group.

Read full article>

Regards,

Brian A. Raphan, Esq.