Congratulations to Monica!

Congratulations to Monica Ruela. She passed the Bar Exam given in July, 2011.

Monica has been working for us since she was a high school student of 16. She managed to work for us almost full time while attending Nassau Community College and then St. Johns, doing very well in her studies. After graduation she attended Touro Law School while continuing to work at our firm part time.

Monica will now be our second associate,  joining Anne Dello-Iacono who has been with us for 3 1/2 years. We have always valued Monica’s excellent work over the years. We look forward to working with Monica as an admitted attorney.

Alzheimer’s Assoc. LI Chapter to Honor Judy Raskin

I am pleased to write that I will be honored tonight at the Gala for the Alzheimer’s Association, Long Island Chapter.  I will be honored as a past chair and long time member of the Chapter’s Legal Advisory Committee along with the other members of the committee.

The chapter’s Executive Director, MaryAnn Ragona, continues to enhance the programs and services provided by the Chapter. You can get more information at the Chapter’s website: www.alzheimersli.org.

A Retained Life Estate May No Longer Avoid Medicaid Recovery

A retained life estate is itemized in new Medicaid law and regulations as a type of non-probate asset now included in the definition of “estate” for Medicaid recovery purposes. Therefore, a deceased Medicaid recipient’s interest in a retained life estate may now be available for Medicaid recovery on the death of the Medicaid recipient.

The potential recovery of this interest was not anticipated when many parents even years ago transferred their home by deed to a child or children and retained a life estate.  We expect that Medicaid’s legal right to recover from a life estate interest will be challenged in court in the near future. However, we do not know what the results of that litigation might be and as of now the retained life interest is a recoverable asset.

The owner of a retained life estate may have options available to protect the life estate interest.  This will depend upon the individual’s particular situation.

2011 SuperLawyers Both: Ellen G. Makofsky and Judith B. Raskin

I am honored to announce that I have been named one of the 2011 TOP 100 SuperLawyers and one of the 50 TOP WOMEN SuperLawyers in the New York Metropolitan area. This is the third consecutive year that I have received the SuperLawyers designation , second  time I have been named to the 50 Top Women Lawyers list but the first time I have been named to the Top 100 Lawyers.

Judy Raskin, my partner at Raskin & Makofsky, has also been named to the 2011 SuperLawyers list for the second consecutive year in the Elder Law category.  In fact, she is spotlighted in the SuperLawyers publication counseling other lawyers on how to create a client-friendly office.

The SuperLawyers list is created by peer nominations and recognition plus an analysis of the nominated lawyers background, credentials, experience, honors and awards. The final SuperLawyers selection represents the top 5 percent of lawyers in New York State.

We are very proud of the work we do at Raskin & Makofsky, and are honored to have both of our firm’s partners recognized in this way.

A Sea Change in Medicaid Law in NY

On April 1, 2011, New York enacted changes to its Medicaid law by significantly expanding the list of estate assets from which Medicaid can recover its costs.  This is of course a huge concern for anyone contemplating or receiving Medicaid benefits.

Prior to this new law, Medicaid could only recover its costs from assets that passed from the deceased Medicaid recipient (or in some cases the spouse’s estate) through a court proceeding. The assets would have been in the sole name of the decedent.  Assets such as jointly held accounts, accounts with named beneficiaries, life estate interests passed directly to the beneficiary. That is no longer the case under this new law.

On September 8, 2011, the NYS Department of Health promulgated emergency regulations clarifying the new law and the assets now available for recovery.  The emergency regulations define an estate for recovery purposes as those assets passing by will or intestacy as well as “any other real and personal property and other assets in which the decedent had any legal title or interest at the time of death, including such assets conveyed to a survivor, heir, or assign of the decedent through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement, to the extent of the decedent’s interest in the property immediately prior to death.”

The regulations allow recovery from the estate of the deceased Medicaid recipient’s interest in a retained life estate even where the deed was executed many years prior.

The emergency regulations allow recovery from irrevocable trusts to the extent the decedent had an interest in the principal of the trust or was entitled to income from the trust that was not distributed prior to death.

We are working with these changes to develop the best planning options now available for our clients.

Planning for the Married Same-sex Couple

New rights and benefits are now afforded same-sex couples with the recognition in New York of same-sex marriage as of June 24, 2011. However, because at this time the federal government and most other states do not recognize same-sex marriage, there are legal issues affecting same-sex couples they need to be aware of such as the following:

  1. Their New York income tax return will be filed as married but their federal income tax return will be filed as individuals;
  2. The survivor is not entitled to Social Security death benefits;
  3. The value of a partner’s health insurance coverage will be taxed at the federal level as income to the employee.
  4. States not recognizing same-sex marriage will not recognize the New York marriage;
  5. A child born to one partner will not be considered the child of the other partner in the non-recognition states and at the federal level unless there has been an adoption by the second partner.

Same-sex couples should seek advice on these and other matters in order to plan appropriately.

When Is a Gift Taxed?

Gifts under $13,000 (2011 figure) per year/per person plus any payments made directly for tuition to an educational institution or for medical expenses  are excluded from any calculation of gift tax.

For taxable gifts over the tax free amount, a federal gift tax return must be filed (Form 709) by April 15 of the year following the year the gift was made.

Gift tax is only payable if and when an individual’s lifetime taxable gifts exceed the gift tax exclusion amount, currently $5M.

Budget includes expanded Medicaid Recovery

We now have the wording of the NYS Budget Bill in regard to the expanded recovery from estates of Medicaid recipients. The legislation states that in addition to assets passing under a valid will or by intestacy,

“..an individual’s estate also includes any other property in which the individual has any legal title or interest at the time of death, including jointly held property, retained life estates, and interests in trusts, to the extent of such interests;…”

The legislation takes effect April 1, 2011. There is no reference to grandfathering such  assets created prior to the effective date. There will be efforts made to modify the legislation to include grandfathering. Hopefully these efforts will be successful.

Medicaid planning will be significantly affected by this new legislation.

Just in: NYS Budget Affects Medicaid Recipients

The NYS Budget for 2011 has been passed.  According to the information we just received, there is one significant change that will affect many Medicaid recipients. The budget includes a provision for a regulation which will expand the assets from which Medicaid may recover its costs on the death of a Medicaid recipient. These newly recoverable assets may include  life estates, joint accounts and revocable and irrevocable trusts. More details will follow as we get more information.

The good news, if there is any, is that according to our current understanding, this provision is the only change in the new budget affecting Medicaid applicants and recipients.

Can an agent amend a trust?

A recent New York case held that an agent under a Power of Attorney cannot amend a trust on behalf of the principal unless the principal’s Power of Attorney specifically grants that power to the agent. The case is Perosi v. Ligreci, 2011 NY Slip Op 21048 (Supreme Court, Richmond County, February 14, 2011.) This decision confirms that you must think very carefully about what you want your agent to be able to accomplish on your behalf when signing a Power of Attorney and specifically provide for the needed authority in your document.

In our office we post an interesting saying every week. I will be adding our weekly saying to my blogs. This week’s saying is:

“Do not let what you cannot do interfere with what you can do.”  -John Wooden