Estate Planning, Medicaid Planning, Trusts & Elder Law

Estate Planning, Medicaid Planning, Trusts and Elder Law

CNY Law Firm serving Oneida, Rome, Syracuse, Utica, Chittenango, New Hartford, Whitesboro, Lowville and surrounding areas

 If you need an Estate Planning attorney, please contact Michel DeBottis to schedule an appointment to discuss your estate planning goals.
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Estate Planning Overview

Estate Planning often requires more than the preparation of a Last Will & Testament. Ideally, Estate Planning includes a long range strategy for retirement planning, asset preservation, asset management in the event of incapacity, estate tax analysis and strategies, and results in the intended transfer of assets to your heirs. 
 
Trusts are written agreements between you and your Trustee, the person that you choose to manage the assets in the Trust. Trusts can protect assets for future generations, ensure that your assets are passed down to intended beneficiaries, and provide a legal mechanism to avoid the lengthy and often expensive process of probate or estate administration. The terms of the Trust should be drafted to accomplish your objectives and tailored to address your specific needs.
 
Medicaid Planning (sometimes referred to as Asset Protection Planning) involves developing a strategy to reallocate your assets so that they may not be considered when determining your eligibility for Medicaid coverage for the costs of your care. State and Federal Medicaid spend down rules require that you deplete almost all of your financial resources and other assets in order to qualify for Medicaid coverage for long term care in a skilled nursing facility. To prevent the mandatory spending of life savings and the proceeds from the sale of other assets that is required in order to qualify for Medicaid, Medicaid Planning often requires the use of an Irrevocable Trust. Irrevocable Trusts must be drafted to comply with the regulatory framework, and funded with assets at least sixty months in advance of your application for Medicaid.
If long range estate planning has not been accomplished prior to a catastrophic illness or other condition requiring long term care in a skilled nursing facility, a patient’s life savings and other assets can be depleted rapidly. However, even if a patient is already in a skilled nursing facility or receiving home care, proper “Medicaid Crisis Planning” may be possible through the use of special provisions in the Medicaid laws. Though less desirable than long range Estate Planning, through the establishment of an Irrevocable Trust at least sixty months before, applying for Medicaid, in certain circumstances, Medicaid Crisis Planning may be used to transfer a significant portion of a Medicaid applicant’s assets prior to submitting a Medicaid application.

Revocable Trusts are established during your lifetime to enable you to have flexible use of assets, easily transfer title to real estate and other significant assets, and ensure that your heirs are not disinherited by events or changes in circumstances subsequent to your death. Revocable trusts permit you to change your mind about the disposition of your assets, or even terminate the trust, if you so chose. However, Revocable Trusts do not protect your assets from Medicaid spend down requirements.
 
Supplemental Needs Trusts, also known as Special Needs Trusts or “SNTs” can be used to enhance the quality of life for persons with disabilities.
 
The advantages and disadvantages of asset transfers through other means should be considered as part of your estate planning.
 
In addition to preservation of assets and the orderly transfer of an estate to one’s heirs, elder care planning should also address the impacts of the changes in capacity which may occur in later life or through illness, and whether and how to handle end of life decisions. These planning objectives can be accomplished through a Power of Attorney, Health Care Proxy and/or Living Will, and HIPAA Authorization.
 
A Last Will & Testament, commonly called a "Will," is a written document which expresses your wishes regarding distribution of assets held in your name at the time of your death, guardians for minor children, and a variety of other matters. Wills do not offer any protection from the Medicaid spend down requirements and are effective only upon Probate.
 
Probate, a judicial proceeding in the Surrogate’s Court, is required to prove a Will’s validity and to oversee the process of identifying and gathering a decedent’s assets, outstanding bills, final expenses and administrative expenses. After the payment of outstanding bills and administrative expenses, specific bequests and the remainder of the estate are distributed in accordance with the testator’s wishes. The court supervised process of probating a will, or administration of an estate where no will exists, can cause delay, complications and unnecessary expense. During either probate or estate administration, creditors have an opportunity to file claims against your estate; and your assets, liabilities, and other personal information and can be exposed to public scrutiny.
 
Michel J. DeBottis is committed to helping his clients protect assets developed over their lifetimes so that they may transfer their estates to their loved ones. He listens carefully to his clients’ objectives, gathers important information about circumstances in order to counsel clients regarding estate planning alternatives, and prepares the appropriate documentation to implement his client’s estate plans. If you need an Estate Planning attorney, please contact Michel DeBottis to schedule an appointment to discuss your estate planning goals.
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