Be Aware of the Kiddie Tax Before Leaving an IRA to Children

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Grandparents may be tempted to leave an IRA to a grandchild because children have a low tax rate, but the “kiddie tax” could make doing this less beneficial.

An IRA can be a great gift for a grandchild. A young person who inherits an IRA has to take minimum distributions, but because the distributions are based on the beneficiary’s life expectancy, grandchildren’s distributions will be small and allow the IRA to continue to grow. In addition, children are taxed at a lower rate than adults—usually 10 percent.

However, the lower tax rate does not apply to all unearned income. Enacted to prevent parents from lowering their tax burden by shifting investment (unearned) income to children, the so-called “kiddie tax” allows some of a child’s investment income to be taxed at the parent’s rate. For 2017, the first $1,050 of unearned income is tax-free, and the next $1,050 is taxed at the child’s rate. Any additional income is taxed at the parent’s rate, which could be as high as 35 percent. The kiddie tax applies to individuals under age 18, individuals who are age 18 and have earned income that is less than or equal to half their support for the year, and individuals who are age 19 to 23 and full-time students.

If a grandparent leaves an IRA to a grandchild, the grandchild must begin taking required minimum distributions within a year after the grandparent dies. These distributions are unearned income that will be taxed at the parent’s rate if the child receives more than $2,100 of income (in 2017). In addition to IRAs, the kiddie tax applies to other investments that supply income, such as cash, stocks, bonds, mutual funds, and real estate.

If grandparents want to leave investments to their grandchildren, they are better off leaving investments that appreciate in value, but don’t supply income until the investment is sold. Grandparents can also leave grandchildren a Roth IRA because the distributions are tax-free.

For more information about leaving an IRA to grandchildren from Kiplinger, click here.

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State Properly Valued Sale of Medicaid Applicant’s Life Estate…

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An Ohio appeals court rules that the state correctly valued the sale of a Medicaid applicant’s life estate using the specific state Medicaid life estate law as opposed to the more general law on determining fair market value. Stutz v. Ohio Department of Job and Family Services (Ohio Ct. App., 3rd Dist., No. 15-17-02, Aug. 21, 2017).

Barbara Stutz owned a life estate in her property and her sons owned the remainder interest. She entered a nursing home and applied for Medicaid. The state approved the application but decided the life estate was an asset that must be valued. Ms. Stutz appraised the life estate at $2,000 and sold it to her sons for $1,800. The state determined that the correct life estate value was $24,941, and it imposed a penalty period on Ms. Stutz for an improper transfer of assets.

Ms. Stutz appealed, arguing that the state should have used the general definition of fair market value in state law, which defines fair market value as the going rate that property can be expected to sell for on the open market, to value her life estate. She presented evidence that local realtors and bankers valued her life estate at $2,000. Instead, the state used the state law that applies to Medicaid and life estates and ruled that $24,941 was the correct value. Ms. Stutz appealed to court, and the trial court affirmed the state’s decision.

The Ohio Court of Appeals, 3rd District, affirms, holding that the state properly valued the life estate. According to the court, “a specific statute prevails over a general statute,” so the state correctly used the life-estate-value statute rather than the general fair-market-value statute.

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2017/2017-Ohio-7287.pdf

For more on Medicaid Planning go to: http://www.raphanlaw.com/medicaid-planning-

New Protections for Nursing Home Residents

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New Obama-era rules designed to give nursing home residents more control of their care are gradually going into effect. The rules give residents more options regarding meals and visitation as well as make changes to discharge and grievance procedures.

The Centers for Medicare and Medicaid finalized the rules — the first comprehensive update to nursing home regulations since 1991 — in November 2016. The first group of new rules took effect in November; the rest will be phased in over the next two years.

Here are some of the new rules now in effect:

  • Visitors. The new rules allow residents to have visitors of the resident’s choosing and at the time the resident wants, meaning the facility cannot impose visiting hours. There are also rules about who must have immediate access to a resident, including a resident’s representative. For more information, click here.
  • Meals. Nursing homes must make meals and snacks available when residents want to eat, not just at designated meal times.
  • Roommates. Residents can choose their roommate as long as both parties agree.
  • Grievances. Each nursing home must designate a grievance official whose job it is to make sure grievances are properly resolved. In addition, residents must be free from the fear of discrimination for filing a grievance. The nursing home also has to put grievance decisions in writing. For more information, click here.
  • Transfer and Discharge. The new rules require more documentation from a resident’s physician before the nursing home can transfer or discharge a resident based on an inability to meet the resident’s needs. The nursing home also cannot discharge a patient for nonpayment if Medicaid is considering a payment claim. For more information, click here.

CMS also enacted a rule forbidding nursing homes from entering into binding arbitration agreements with residents or their representatives before a dispute arises.  However,a nursing home association sued to block the new rule and a U.S. district court has granted an injunction temporarily preventing CMS from implementing it.  The Trump Administration is reportedly planning to lift this ban on nursing home arbitration clauses.

In November 2017, rules regarding facility assessment, psychotropic drugs and medication review, and care plans, among others, will go into effect. The final set of regulations covering infection control and ethics programs will take effect in November 2019.

To read the rules, click here.

4 things to put on your to-do list for retirement prep

You may think you need a long and complicated list of tasks to accomplish your retirement goal. But a good place to start is with these four simple steps.

JUNE 20, 2016; Via Vanguard

Determine how much you need to save

Here’s where a bit of list-making—or the help of a financial professional—can make the process easier. Grab a piece of paper (or pull up a blank screen if that’s easier) and jot down some expenses associated with your retirement vision.

No matter what you see yourself doing once you retire, figure out some rough estimates for expenses you’re likely to have.

Mary Ryan“Common expenses—regardless of your plans— include housing, food, utility, and health care costs,” said Mary Ryan, a financial planner with Vanguard Personal Advisor Services.

No time for a checklist?

Consider working with a financial advisor, such as the professionals in Vanguard Personal Advisor Services®.

An advisor works closely with you to develop a customized goals-based financial plan according to your unique situation—and can manage your portfolio throughout your retirement years.

Learn more about how Vanguard Personal Advisor Services can help »

“The goal is to determine a general target of how much you’ll need to meet those expenditures, using the income you expect from things like Social Security, a pension, or annuity, along with the sum you’ll need tucked away in retirement or investment accounts,” she said.

Invest for retirement with an appropriate asset mix

Put your savings to work for your future through investing. A best practice is to invest in the right mix of stocks, bonds, and short-term cash reserves (your asset allocation), based on your goals, the length of time before you’ll need to use your savings, and your comfort with risk. Vanguard research shows that, even more than specific investment selections, asset allocation is a key component of investment success.

Anish Patel“A crucial part of determining your asset mix means being honest with yourself about how comfortable you are with risk, including when you might have to challenge your comfort level a bit for your long-term benefit,” said Anish Patel, also a planner with Vanguard Personal Advisor Services.

“Returns are the incentive to attract investors; that’s why investments with low risks also have low returns—because there’s less need to entice someone to make that investment. But risk comfort can be highly dependent on the market environment. When markets are good, many people think they have a high tolerance for risk, only to find when downturns occur, as they always do, that they have very little tolerance,” he said.

Review and adjust investments regularly, even when markets are turbulent

Markets don’t tend to move in slow-and-steady progressions. And when they shift, the changes can pull your asset allocation out of alignment with your set strategy.

“Regular reviews that focus on whether or not your asset mix is on target can help you know when to make adjustments so you can stick to your long-term plan,” said Ms. Ryan.

“Rebalancing aims to minimize risk rather than maximize returns,” Mr. Patel added.

Without rebalancing, “it’s possible for a portfolio to become overweighted with one type of investment. More often, this situation occurs with stock holdings when equity markets are strong. When stocks appreciate quickly and shift a portfolio’s balance, it’s more vulnerable to market corrections, putting it at risk of greater potential losses when compared with the original asset allocation,” Ms. Ryan said.

Minimize taxes

The saying, “Location, location, location” applies to more than just real estate. As Vanguard’s IRA investment research notes, the type of account in which you hold your assets can make a difference in the amount of taxes you owe.

“Investments that generate capital gains distributions or taxable income are better held in tax-advantaged accounts. For example, taxable bond returns are almost all income and thus subject to income taxes, so holding them in an IRA is a smart strategy,” said Mr. Patel.

Ms. Ryan added, “Conversely, tax-efficient investments make more sense held in taxable accounts. So it often makes more sense to hold equity index funds, which generally have less turnover and fewer capital gains distributions, in taxable accounts.”

Get help

If you need a sounding board as you complete the tasks on your to-do list, a financially savvy family member may fit the bill. An advisor can also serve as that sounding board. And, if you don’t have the inclination—or the time—to perform these steps, it makes sense to enlist professional help. (Vanguard has a team of financial planners, including Certified Financial Planner™ (CFP®) professionals, who don’t receive extra compensation for their recommendations; they work solely to help you reach your goals.)

Whether you work in partnership with a financial planner or act independently, checking these items off your to-do list can help you be more prepared for retirement.

* A Vanguard advisor may add about 3% on average to your net portfolio returns over time by following the Advisor’s Alpha principles discussed in Putting a value on your value: Quantifying Vanguard Advisor’s AlphaThis research isn’t an exact science. Potential value added relative to “average” client experience (in percentage of net return) is as follows: Investment coaching may add 1.50%; rebalancing your portfolio may add 0.35%; asset location between taxable and tax-advantaged accounts may add up to 0.75%; low-cost funds may add 0.45%; and tax-smart retirement spending may add up to 0.70%. It’s not added over a specific time frame but can vary each year, and according to your situation. It can be added quickly and dramatically—especially during times of a rapidly rising or falling market, when you may be tempted to abandon your well-thought-out investment plan—but it may be added slowly.

Notes:

  • Please remember that all investments involve some risk. Be aware that fluctuations in the financial markets and other factors may cause declines in the value of your account. There is no guarantee that any particular asset allocation or mix of funds will meet your investment objectives or provide you with a given level of income.
  • Advisory services are provided by Vanguard Advisers, Inc. (VAI), a registered investment advisor.

 

Online Retirement Planning Calculators Measure Risk Poorly, Study Finds

If you are retired or are nearing retirement, the main questions on your mind are probably “Will I run out of money in retirement?” and “Will I be able to maintain my standard of living?” For answers, people often turn to free online retirement calculators that gauge how much users will need to save to achieve their retirement objectives, based on details about their finances.

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But how well do these calculators account for the inherent risks in retirement, such as how long you will live, how your investments will perform, what the inflation rate will be, and health care and long-term care costs? Not very well, according to a 2009 study by the Pension Research Council.

“We conclude,” the study’s authors write, “that on the whole, the tools do not highlight nor address retirement risk particularly well; rather, they mainly mask risk.”

The authors, retirement experts Anna M. Rappaport and John A. Turner, reviewed the available research on five leading Web-based calculators to see how they handle post-retirement risks. The calculators they looked at were Fidelity’s Retirement Income PlannerAARP’s retirement planning calculatorMetLife’s calculatorthe U.S. Department of Labor’s calculator and T. Rowe Price’s Retirement Income Calculator.

In their working paper “How Does Retirement Planning Software Handle Post-Retirement Realities?” Rappaport and Turner conclude that while the calculators “can provide a rough idea of whether the user is on target for retirement,” all inadequately assess the risk of running out of money.

For example, one calculator determines income sufficiency based on average life expectancy and overlooks the very real chances of living longer than the average. Another assumes that everyone, even if not married, receives the same Social Security benefits. Several do not permit calculations to take spouses into account. Among the authors’ other findings:

  • None of the consumer calculators they evaluated treat inflation as a risk, instead assuming that inflation is constant over the retirement period analyzed.
  • None treated expected medical and long-term care expenses as a risk factor or alerted users to the potentially huge impact such expenses could have on retirement plans.
  • Few have checks on inconsistent or outlandish assumptions. For example, many programs permit the user to specify long-term risk-free rates of return of 10 or even 20 percent.
  • Some calculators do not ask users to indicate expected inheritances or other one-time receipts of assets, and some do not include the value of housing as a source of retirement income.
  • Several of the programs ignore taxes, leading users to conclude that they have more retirement resources than they actually do.
  • The calculators cannot take account of extreme events such as the recent financial crisis, in which housing values have fallen and mortgage rates have risen — at the same time that people are losing jobs.

The authors note that “consumers or financial professionals working with them could benefit from trying alternative programs and scenarios within each program.”

The study also looked at retirement planning software for financial planning professionals. The authors concluded that while these tools are more complex than their consumer counterparts, they still contain flaws.

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The Full Retirement Age Is Increasing

Full retirement age (also called “normal retirement age”) had been 65 for many years. However, beginning with people born in 1938 or later, that age gradually increases until it reaches 67 for people born after 1959.

The 1983 Social Security Amendments included a provision for raising the full retirement age beginning with people born in 1938 or later. The Congress cited improvements in the health of older people and increases in average life expectancy as primary reasons for increasing the normal retirement age. Click the image below for the “FULL RETIREMENT CALCULATOR” and get more information for the SSA.

Retirement Calculator
Full Retirement Calculator

Also, for Social Security benefits for the surviving spouse see this link: http://www.socialsecurity.gov/survivorplan/survivorchartred.htm#about

Regards, Brian A. Raphan

http://www.RaphanLaw.com   info@RaphanLaw.com

2015 Spousal Impoverishment and Home Equity Figures:

Brian Raphan

The Centers for Medicare and Medicaid Services has released its Spousal Impoverishment Standards for 2015.

The official spousal impoverishment allowances for 2015 are as follows (we include Medicaid’s home equity limits):

Minimum Community Spouse Resource Allowance: $23,844

Maximum Community Spouse Resource Allowance: $119,220

Maximum Monthly Maintenance Needs Allowance: $2,980.50

The minimum monthly maintenance needs allowance for the lower 48 states remains $1,966.25 ($2,457.50 for Alaska and $2,261.25 for Hawaii) until July 1, 2015.

Home Equity Limits:

Minimum:   $552,000

Maximum:  $828,000

For CMS’s complete chart of the 2015 SSI and Spousal Impoverishment Standards, click here.

For more information about protecting your assets click here.

Regards,

Brian A. Raphan, Esq.

5 Tips for Arranging and Paying for a Home Health Aide:

-By Emily Garnett, Associate Attorney at Brian A. Raphan, P.C.

Finding oneself or a family member in need of home care can be a tough pill to swallow. It is often difficult to accept that you or a loved one is no longer able to safely do many of the activities of daily living that you once could. At that point, it may be time to bring in a home health aide for assistance with a wide variety of activities of daily living.

1. How to Arrange Help and Payment: Many people choose to privately pay for home health aides. If you choose to go this route, you can utilize a long-term home health care program (LTHHCP). These are agencies accredited by the state that provide home health aides. They manage the staffing and payroll. However, you can also choose to select aides that are privately paid, and work outside of an LTHHCP agency. For these aides, you would have to manage staffing and payroll issues yourself, or utilize the expertise of an elder law attorney or geriatric care manager to manage these details.

Medicaid Planning

2. Using Medicaid to Pay: If you are unable to privately pay for home care, you have the option of applying for Medicaid to obtain coverage for long-term home care. It is advised that you work with an elder law attorney or other professional to facilitate this process, as it can be complicated, and the regulations are frequently changing. In order to qualify for Medicaid, the applicant must meet certain requirements for income and assets. The current Medicaid asset limit is $14,550.00, and the monthly income limit is $809.00. Unlike nursing home Medicaid, there is no look-back period for community Medicaid, meaning that Medicaid is not going to investigate past money transfers like they would for an application for nursing home coverage. There are several ways to address the income and asset limits required for Medicaid acceptance, the most common being the use of pooled trusts to shelter those funds. Pooled trusts are frequently used to meet the Medicaid spend-down, which is the requirement that an applicant reduce his or her available income so that it remains under the Medicaid limit.

3. Shelter your Income: Once an individual applies for Medicaid coverage, he or she can join a third party pooled trust to shelter the excess income and meet the spend-down. These trusts allow the individual to use the funds sheltered in the trust for personal needs outside of the Medicaid coverage, including expenses like rent, utilities, and phone bills. If this arrangement is not made, the applicant runs the risk of rejection by Medicaid or having to privately pay for some part of his or her home care each month.

4. Enrollment for Managed Long Term Care: Once you have applied for and been approved for Medicaid, you will work with your elder law attorney or specialist to enroll in a managed long-term care program (MLTC), which will provide home care services. The first step in this process is assessment by a new program, the Conflict-Free Eligibility and Enrollment Center (CFEEC), sometimes also referred to as “Maximus”. This assessment takes about two hours and provides a determination to Medicaid that the consumer is eligible for home care services. At that point, the consumer selects a managed long term care plan to enroll in. The MLTC plan then schedules a second assessment, also lasting about two hours, in which the specific care needs of the consumer are assessed. At the conclusion of this assessment, the nurse performing the assessment will submit the information to Medicaid, who will ultimately determine the number of hours of home care needed each day by the consumer. This process is very time-sensitive, so work closely with your Medicaid attorney assisting with the application process, to avoid costly and unnecessary delays.

5. Keeping Your Ongoing Benefits: Once the application process is complete, your home care will likely start on or around the first of the following month. At that point, your obligations as a consumer are to maintain the income and asset limits, including utilization of a pooled trust if needed. You will be required to annually re-certify with Medicaid that you have maintained these levels. Should you have questions at that point, please don’t hesitate to reach out to your Medicaid planning attorney, rather than risk losing your Medicaid benefits. It is worth noting, however, that occasionally delays arise in various points of the application process through no fault of the attorney or applicant. Should you find yourself in such a position, understand that these issues do arise, and make sure to cooperate with your attorney or specialist’s advocacy efforts towards resolution.

Emily Garnett, Esq.

The Law Offices of Brian A. Raphan, P.C. 7 Penn Plaza, Suite 810 New York, NY 10001 T: (212) 268-8200

“Helping Senior New Yorkers for over 25 Years”

Maybe it’s time for a geriatric care manager

Geriatric care

Why do we hear so much about geriatric care management these days? It’s because there are so many benefits they can provide to seniors and care givers. Let’s first clarify the term: A professional Geriatric Care Manager (GCM) is a health and human services specialist who helps families who are caring for older relatives. The GCM is trained and experienced in any of several fields related to care management, including nursing, gerontology, social work, psychology, and logistics of health care and often finances relating to the elderly. They are trained to assess, plan, coordinate, monitor and provide services for the elderly and their families. Although not lawyers, they are often aware of legal issues elders may be soon facing.

The benefits to you, the child or care giver of the elder range from saving time (vetting out various needs), saving money (knowing financial pitfalls of some decisions in advance), making better care decisions (with insight from someone who has seen it all) and most importantly –reducing stress.  The stress of being alone in the decision making process, relief of now being informed about your various options and what may be right for the specific needs of the elder, ranging from doctor decisions, how to provide care, assisted living, home care and nursing care options. Doing it alone takes an enormous amount of time, energy, resources and self reliance.

According to Gladys Harris Geriatric Care Manager of The Olive Group, you may need a Geriatric Care Manager if:

•    A person has limited or no family support available

•    Family has just become involved with helping the individual and needs direction regarding available senior services

•    A person has multiple medical or psychological issues

•    A person is unable to live safely in his / her current environment

•    Family is either “burned out” or confused about care solutions

•    Family has a limited time and / or expertise in dealing with loved one’s chronic care needs

•    Family is at odds regarding care decisions

•    Individual is not pleased with current care providers and requires advocacy

•    Individual is confused regarding his / her own financial and / or legal situation

•    Family needs education and / or direction in dealing with behaviors associated with dementia

Gladys is a recommended resource of ours and helps families and elders in New Jersey. They offer a unique combination of compassion, knowledge, a ‘can-do’ attitude and a wide range of services which also include:

Solution Focused Counseling: Life transitions are a common reason for counseling. We focus on empowering individuals to find solutions in their life by figuring out what a person’s goals are, and supporting them to find ways to achieve those goals.

Care Coordination: Our holistic assessment includes a physical, psychological and social functioning evaluation of the older adult, as well as a home safety inspection. Based on the assessment, we will develop a customized client care plan to identify private and public resources available to support the older adult. We coordinate the support systems needed to keep the older adult safe and happy at home.

Wellness Monitoring: Regular visits with the older adult to help ensure that they receive the best care available. During our visits we ensure older adults are receiving help with things that they want done, computer skills, organize photos, plan family events, etc.

Accessibility Issue Resolution: Aging-in-place often requires making changes to the home to help maintain independence.  This may be de-cluttering, home improvements, home safety inspection

Relocation Services: We support families during transitions from home to another location or facility.   These services include cleaning, de-cluttering, downsizing, and setting up in the older adult’s new home.

Cost savings is also a key component to good geriatric care management. You can learn more about it and find out more about the range of services by clicking here: www.TheOliveGroup.llc.com

Regards,

Brian

Three Reasons Why Joint Accounts May Be a Poor Estate Plan

Many people, especially seniors, see joint ownership of investment and bank accounts as a cheap and easy way to avoid probate since joint property passes automatically to the joint owner at death. Joint ownership can also be an easy way to plan for incapacity since the joint owner of accounts can pay bills and manage investments if the primary owner falls ill or suffers from dementia. These are all true benefits of joint ownership, but three potential drawbacks exist as well:

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  1. Risk. Joint owners of accounts have complete access and the ability to use the funds for their own purposes. Many elder law attorneys have seen children who are caring for their parents take money in payment without first making sure the amount is accepted by all the children. In addition, the funds are available to the creditors of all joint owners and could be considered as belonging to all joint owners should they apply for public benefits or financial aid.
  2. Inequity. If a senior has one or more children on certain accounts, but not all children, at her death some children may end up inheriting more than the others. While the senior may expect that all of the children will share equally, and often they do in such circumstances, there’s no guarantee. People with several children can maintain accounts with each, but they will have to constantly work to make sure the accounts are all at the same level, and there are no guarantees that this constant attention will work, especially if funds need to be drawn down to pay for care.
  3. The Unexpected. A system based on joint accounts can really fail if a child passes away before the parent. Then it may be necessary to seek conservatorship to manage the funds or they may ultimately pass to the surviving siblings with nothing or only a small portion going to the deceased child’s family. For example, a mother put her house in joint ownership with her son to avoid probate and Medicaid’s estate recovery claim. When the son died unexpectedly, the daughter-in-law was left high and dry despite having devoted the prior six years to caring for her husband’s mother.

Joint accounts do work well in two situations. First, when a senior has just one child and wants everything to go to him or her, joint accounts can be a simple way to provide for succession and asset management. It has some of the risks described above, but for many clients the risks are outweighed by the convenience of joint accounts.

Second, it can be useful to put one or more children on one’s checking account to pay customary bills and to have access to funds in the event of incapacity or death. Since these working accounts usually do not consist of the bulk of a client’s estate, the risks listed above are relatively minor.

For the rest of a senior’s assets, willstrusts and durable powers of attorney are much better planning tools. They do not put the senior’s assets at risk. They provide that the estate will be distributed as the senior wishes without constantly rejiggering account values or in the event of a child’s incapacity or death. And they provide for asset management in the event of the senior’s incapacity.

They provide that the estate will be distributed as the senior wishes without constantly rejiggering account values or in the event of a child’s incapacity or death. And they provide for asset management in the event of the senior’s incapacity.  To download a FREE GUIDE TO ESTATE PLANNING click here.

For more information about this article feel free to email me at info@raphanlaw.com

Regards, Brian