Being the executor of an estate is not a task to take lightly. An executor is the person responsible for managing the administration of a deceased individual's estate. Although the time and effort involved will vary with the size of the estate, even if you are the executor of a small estate you will have important duties that must be performed correctly or you may be liable to the estate or the beneficiaries.
The executor is either named in the will or if there is no will, appointed by the court. You do not have to accept the position of executor even if you are named in the will.
The average estate administration takes one year, though you won't need to work full time on it. Following are some of the duties you may have to perform as executor:
Locate documents. If there is a will, but you don't already know where the will is or the will hasn't already been brought to court, you may need to find it among the deceased's belongings. If all you have is a copy of the will, you may need to get the original from the lawyer who drafted it. You will also need to get a copy of the death certificate.
Hire an attorney. You are not required to hire an attorney, but mistakes can cost you money. You may be personally liable if something goes wrong with the estate or the payment of taxes. An attorney can help you make sure all the proper steps are taken and deadlines met. To find a qualified elder law attorney near you, click here.
Apply for probate. If there is a will, the court will grant you letters testamentary. If there is no will, you will receive letters of administration. This will officially begin your work as the executor.
Notify interested parties. Notify the beneficiaries of the will, if there is a will, as well as any potential heirs (such as children, siblings, or parents who may or may not be named in a will). In addition, you will have to place an advertisement for potential creditors in a newspaper near where the deceased lived.
Manage the deceased's property. You will need to prepare a list of the deceased's assets and liabilities, and you may need to collect any property in the hands of other people. One of the executor's jobs is to protect the property from loss, so you will need to assure the property is kept safe. You will also need to hire an appraiser to find out how much any property is worth. In addition, if the estate includes a business, you may have to make sure the business continues to run.
Pay valid claims by creditors. Once the creditors are determined, you will need to pay the deceased's debts from the estate's funds. The executor is not personally liable for deceased's debts. The estate usually pays any reasonable funeral expenses first. Other debts include probate and administration fees and taxes as well as any valid claims filed by creditors.
File tax returns. You need to make sure the tax forms are filed within the time frame set under the law. Taxes will include estate taxes and income taxes.
Distribute the assets to the beneficiaries. Once the creditors' claims are clear, the executor is responsible for making sure the beneficiaries get what they are entitled to under the will or under the law, if there is no will. You may be required to sell property in order to fulfill legacies in a will. In addition, you may have to set up any trusts required by the will.
Keep accurate records. It is very important to keep accurate records of everything you do. You will need to create a final accounting, which the beneficiaries must review before the distribution of the estate can be finalized. The accounting should include any distributions and expenses as well as any income earned by the estate since the deceased died.
File the final accounting with the court. Once the final accounting is approved by the beneficiaries and the court, the court will close the estate. File a final report with the court and close the estate.
All this can be a lot of work, but remember that the executor is entitled to compensation, subject to approval by the court. Keep in mind that the compensation is counted as income, so you will need to declare it on your income taxes.
Source: www.elderlawanswers.com; 8/20/07
Thursday, August 23, 2007
Thursday, July 26, 2007
Seniors Often Must Fight for Medicare Home Health Benefits
Medicare is mandated to cover your home health benefits with no limit on the time you are covered. Unfortunately, few Medicare beneficiaries get the level of service they are entitled to and many find their services cut off prematurely. Getting these benefits can be critically important. Medicare home health care benefits can mean the difference between being able to stay at home with a difficult medical problem or ending up in the hospital or a nursing home.
As a Medicare recipient, you are entitled to full home health benefits if you meet the following requirements:
You must be confined to your home – meaning that leaving it to receive services would be a "considerable and taxing effort."
Your doctor must have ordered home health services for you.
At least some element of the services must be skilled – skilled nursing care, physical therapy, or speech therapy.
You must receive the services from a certified home health agency.
Requiring an element of skilled care also will entitle you to Medicare coverage of social services, home health aide services, and the necessary medical supplies and equipment. You won't have to pay anything for the home health benefits, but you will have to pay 20 percent of the supplies and equipment.
Under the law, you are entitled to 35 hours of service a week, but few Medicare beneficiaries who meet the home health care criteria actually get this level of service. If your services are terminated prematurely, you will need to appeal. If you have to appeal, the good news is that most people win their cases. In fact, 81 percent are successful on appeal to an administrative law judge.
If you can you should continue to pay privately for the care during the process. Remember – the issue you are appealing is not the termination of service, but the denial of Medicare payment for the service.
In order to mount a successful campaign to get your services back, you should:
Ask your home health agency to explain the cutback and write the information down.
Ask your physician to call the agency urging them not to cut back the services and, then have the physician send a letter detailing the level of care you need.
Consult with a Medicare assistance agency or your attorney to determine the likelihood of a successful appeal.
If you decide to appeal, do so immediately and make sure you make arrangements to pay privately pending the result of the appeal.
Source: Elderlawanswers.com, 7/16/07
As a Medicare recipient, you are entitled to full home health benefits if you meet the following requirements:
You must be confined to your home – meaning that leaving it to receive services would be a "considerable and taxing effort."
Your doctor must have ordered home health services for you.
At least some element of the services must be skilled – skilled nursing care, physical therapy, or speech therapy.
You must receive the services from a certified home health agency.
Requiring an element of skilled care also will entitle you to Medicare coverage of social services, home health aide services, and the necessary medical supplies and equipment. You won't have to pay anything for the home health benefits, but you will have to pay 20 percent of the supplies and equipment.
Under the law, you are entitled to 35 hours of service a week, but few Medicare beneficiaries who meet the home health care criteria actually get this level of service. If your services are terminated prematurely, you will need to appeal. If you have to appeal, the good news is that most people win their cases. In fact, 81 percent are successful on appeal to an administrative law judge.
If you can you should continue to pay privately for the care during the process. Remember – the issue you are appealing is not the termination of service, but the denial of Medicare payment for the service.
In order to mount a successful campaign to get your services back, you should:
Ask your home health agency to explain the cutback and write the information down.
Ask your physician to call the agency urging them not to cut back the services and, then have the physician send a letter detailing the level of care you need.
Consult with a Medicare assistance agency or your attorney to determine the likelihood of a successful appeal.
If you decide to appeal, do so immediately and make sure you make arrangements to pay privately pending the result of the appeal.
Source: Elderlawanswers.com, 7/16/07
Thursday, July 12, 2007
Should you sign a Nursing Home Admission Agreement?
Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. Nursing home admission agreements can be complicated and confusing, so what do you do?
It is important not to rush, but rather to read. Read the agreement carefully because it could contain illegal or misleading provisions. If possible, try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.
Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident's expenses and a binding arbitration agreement.
Responsible party
A nursing home may try to get you to sign the agreement as the "responsible party." It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.
If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident's agent. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term "responsible party," "guarantor," "financial agent," or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident's income and resources to pay.
Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident's care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.
Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.
Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident's needs, the resident's heath has improved, the resident's presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home's liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident's health.
A certified elder law attorney can clarify all of your options.
Source: www.elderlawanswers.com
It is important not to rush, but rather to read. Read the agreement carefully because it could contain illegal or misleading provisions. If possible, try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.
Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident's expenses and a binding arbitration agreement.
Responsible party
A nursing home may try to get you to sign the agreement as the "responsible party." It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.
If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident's agent. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term "responsible party," "guarantor," "financial agent," or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident's income and resources to pay.
Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident's care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.
Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.
Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident's needs, the resident's heath has improved, the resident's presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home's liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident's health.
A certified elder law attorney can clarify all of your options.
Source: www.elderlawanswers.com
Tuesday, May 22, 2007
Congress Approves Resolution Fixing Estate Exemption at $3.5M
The House and Senate have approved a $2.9 trillion budget resolution that would keep the estate tax at where it will be in 2009 under the current law. This means that the per-person estate tax exemption would be $3.5 million ($7 million for a married couple) and the top tax rate would be 45 percent.
Congress's vote for the nonbinding budget blueprint sets guidelines for it to follow when writing tax and spending legislation later this year. The House passed the measure by a 214-209 vote without a single Republican voting for it. The Senate vote was 52-40 in favor, with Republicans Olympia Snowe and Susan Collins of Maine joining Democrats in voting yes. The budget doesn't have the force of law and any changes to the estate tax would have to be made through subsequent legislation, but it is a clear sign of congressional sentiment.
The estate tax is set to expire in 2010, followed in 2011 by a return to 2001 levels, with an individual exemption of $1 million and a top tax rate of 55 percent. In the last Congress, Senate Republicans fell four votes short of a measure that would have increased the estate tax exemption to the first $5 million of an individual's estate and would have lowered the top estate tax rate to 35 percent.
Congress's vote for the nonbinding budget blueprint sets guidelines for it to follow when writing tax and spending legislation later this year. The House passed the measure by a 214-209 vote without a single Republican voting for it. The Senate vote was 52-40 in favor, with Republicans Olympia Snowe and Susan Collins of Maine joining Democrats in voting yes. The budget doesn't have the force of law and any changes to the estate tax would have to be made through subsequent legislation, but it is a clear sign of congressional sentiment.
The estate tax is set to expire in 2010, followed in 2011 by a return to 2001 levels, with an individual exemption of $1 million and a top tax rate of 55 percent. In the last Congress, Senate Republicans fell four votes short of a measure that would have increased the estate tax exemption to the first $5 million of an individual's estate and would have lowered the top estate tax rate to 35 percent.
Monday, May 14, 2007
Estate Tax Rules for the Future
Facing expiration of the estate tax in 2010, the U.S. Senate voted 51-41 to reaffirm its support for a budget resolution that establishes the current-law 2009 estate tax rules through 2012. In 2009 the per-person estate tax exemption will be $3.5 million and the top tax rate will be 45 percent.
Under the Economic Growth and Tax Reconciliation Act of 2001, the estate tax will expire in 2010, followed in 2011 by an individual exemption of $1 million and a top tax rate of 55 percent. The Senate vote was part of its efforts to develop instructions for House and Senate conferees who will be working on the next five-year budget resolution.
In the last Congress, Senate Republicans fell four votes short of a measure that would have increased the estate tax exemption to the first $5 million of an individual's estate and would have lowered the top estate tax rate to 35 percent. In the new Democratic-controlled Congress there appears to be bipartisan support for continuing the estate tax rate at 2009 levels starting in 2010. In fact, support has increased since March 23, when senators voted 51-48 in favor of preserving the 2009 levels.
Budget resolutions are important because appropriations bills that follow budget resolution guidelines can pass with a simply majority rather than the 60 votes generally needed. The House and Senate have each passed their own budget resolutions and once their conferees agree on a compromise resolution, the final version must be approved by both the House and Senate. The House version of the budget resolution does not address the estate tax issue.
Under the Economic Growth and Tax Reconciliation Act of 2001, the estate tax will expire in 2010, followed in 2011 by an individual exemption of $1 million and a top tax rate of 55 percent. The Senate vote was part of its efforts to develop instructions for House and Senate conferees who will be working on the next five-year budget resolution.
In the last Congress, Senate Republicans fell four votes short of a measure that would have increased the estate tax exemption to the first $5 million of an individual's estate and would have lowered the top estate tax rate to 35 percent. In the new Democratic-controlled Congress there appears to be bipartisan support for continuing the estate tax rate at 2009 levels starting in 2010. In fact, support has increased since March 23, when senators voted 51-48 in favor of preserving the 2009 levels.
Budget resolutions are important because appropriations bills that follow budget resolution guidelines can pass with a simply majority rather than the 60 votes generally needed. The House and Senate have each passed their own budget resolutions and once their conferees agree on a compromise resolution, the final version must be approved by both the House and Senate. The House version of the budget resolution does not address the estate tax issue.
Friday, April 13, 2007
7 Sane Steps for Estate Planning
Try these practical tips to avoid feuds and spare feelings.
1. Spell things out. Ask your parents to figure out who gets what, right down to the Christmas tree lights. Some people put stickers with names on the bottoms; others leave a list. Just as important, make sure your parents let everyone know - - if Mom really liked you better and leaves you all the Waterford, wouldn’t you like your sister to be mad at her, not you?
2. Resist the temptation to avoid the depressing details. Big fights can erupt when planning the funeral - - remember the brouhaha when Ted Williams died? - - and spill over to estate issues. So ask your parents what kind of service they want, whether they want to be cremated or buried.
3. Don’t hesitate, mediate. If you sense battle lines being drawn, mediation and arbitration can provide a lower-cost alternative to taking one another to court. In mediation, a neutral third party helps all sides reach an agreement. Usually, mediation isn’t binding. (The specifics of both mediation and arbitration are governed by state law and the Federal Arbitration Act.) Often, a judge will order warring siblings into mediation, and many wills contain a clause stipulating arbitration - - say, if parents’ personal effects cannot be divided by the children within 30 days. In general, fees for either mediation or arbitration are significantly lower than those of lawyers in a lawsuit. Note: However, in New York State, all estate matters are handled by the Surrogate Court.
4. Draft a will with the personal touch. A heartfelt letter attached to a will can soothe the anger of grief-stricken children. In Illinois, attorney Jim Nash’s favorite: a man gave his children and grandchildren a reading list of his favorite books. The University of Minnesota’s Marlene Stum knows of a case where the matriarch called her adult children around her and started holding up objects, explaining each one’s history and then asking who wanted it.
5. Make an end run around stubborn parents. If they refuse to talk about their plans, start paving the way for clear channels of communication with your siblings now. Hard as it may be, the initial “Have Mom and Dad ever talked to you about what they want to happen to their stuff when they die?” Conversation is even more critical for siblings who don’t get along well.
6. Once you begin settling the estate, talk face-to-face. Nash is a big fan of Kinko’s videoconferencing for far-flung siblings. IF everyone is in the loop, it’s harder to escalate to those tense “You threw the birdhouse I built in eighth grade in the trash” exchanges. Above all, advises mediator Olivia Boyce-Abel, be cautious with e-mail. “Something that sounds fine to you when you write it at midnight can come across very differently when your brother gets home from a hard day at the office.”
7. Vow that this is one more time you won’t be like your mother. Call your ELDER LAW ATTORNEY and make sure your own will is current, and that your heirs know what is - - and isn’t - - coming to them.
Written by Sarah Mahoney, contributor to More magazine. Reprinted from More.com, 3/20/07.
1. Spell things out. Ask your parents to figure out who gets what, right down to the Christmas tree lights. Some people put stickers with names on the bottoms; others leave a list. Just as important, make sure your parents let everyone know - - if Mom really liked you better and leaves you all the Waterford, wouldn’t you like your sister to be mad at her, not you?
2. Resist the temptation to avoid the depressing details. Big fights can erupt when planning the funeral - - remember the brouhaha when Ted Williams died? - - and spill over to estate issues. So ask your parents what kind of service they want, whether they want to be cremated or buried.
3. Don’t hesitate, mediate. If you sense battle lines being drawn, mediation and arbitration can provide a lower-cost alternative to taking one another to court. In mediation, a neutral third party helps all sides reach an agreement. Usually, mediation isn’t binding. (The specifics of both mediation and arbitration are governed by state law and the Federal Arbitration Act.) Often, a judge will order warring siblings into mediation, and many wills contain a clause stipulating arbitration - - say, if parents’ personal effects cannot be divided by the children within 30 days. In general, fees for either mediation or arbitration are significantly lower than those of lawyers in a lawsuit. Note: However, in New York State, all estate matters are handled by the Surrogate Court.
4. Draft a will with the personal touch. A heartfelt letter attached to a will can soothe the anger of grief-stricken children. In Illinois, attorney Jim Nash’s favorite: a man gave his children and grandchildren a reading list of his favorite books. The University of Minnesota’s Marlene Stum knows of a case where the matriarch called her adult children around her and started holding up objects, explaining each one’s history and then asking who wanted it.
5. Make an end run around stubborn parents. If they refuse to talk about their plans, start paving the way for clear channels of communication with your siblings now. Hard as it may be, the initial “Have Mom and Dad ever talked to you about what they want to happen to their stuff when they die?” Conversation is even more critical for siblings who don’t get along well.
6. Once you begin settling the estate, talk face-to-face. Nash is a big fan of Kinko’s videoconferencing for far-flung siblings. IF everyone is in the loop, it’s harder to escalate to those tense “You threw the birdhouse I built in eighth grade in the trash” exchanges. Above all, advises mediator Olivia Boyce-Abel, be cautious with e-mail. “Something that sounds fine to you when you write it at midnight can come across very differently when your brother gets home from a hard day at the office.”
7. Vow that this is one more time you won’t be like your mother. Call your ELDER LAW ATTORNEY and make sure your own will is current, and that your heirs know what is - - and isn’t - - coming to them.
Written by Sarah Mahoney, contributor to More magazine. Reprinted from More.com, 3/20/07.
Tuesday, March 27, 2007
Medicare Advantage Open Enrollment Period Ends March 31, 2007
The Open Enrollment Period (OEP) during which Medicare beneficiaries can make one election to change in certain kinds of plans, ends on March 31, 2007. The Open Enrollment Period applies to individuals who are changing Medicare Advantage (MA) plans or enrolling in or disenrolling from MA plans.
During the OEP, beneficiaries may switch from:
-a medicare Advantage prescription drug plan (MA-PD) to another MA-PD or original Medicare with a Prescription Drug Plan (PDP);
-one MA-only plan (no prescription drug coverage) to another MA only plan or original Medicare with no drug coverage;
-original Medicare with a PDP to a MA-PD; or
-original Medicare with no drug coverage to a MA-only plan.
A beneficiary may make only one of these changes during an OEP. For a visual representation of the options, see the Health Assistance Partnership’s chart at www.hapnetwork.org/assets/pdfs/2007-MA-OEP-chart.pdf.
An OEP cannot be used to enroll in prescription drug coverage for the first time or to drop prescription drug coverage entirely; it also cannot be used to switch from one (non-Medicare Advantage) prescription drug plan to another (non-Medicare Advantage) prescription drug plan. In short, one cannot use the OEP to switch from a PDP to another PDP.
Medicaid beneficiaries have a continuous Special Enrollment Period that allows them to switch into or out of Medicare Advantage plans (including plans with Part D coverage) at anytime.
The landscape of enrollment options and limitations for Medicare beneficiaries, particularly with respect to prescription drug benefit coverage, is complex. Aggressive marketing by plans can add to the confusion and lead to mistakes and problems.
Source: Washington Weekly, volume XXXIII, Issue No. 11, March 16, 2007.
During the OEP, beneficiaries may switch from:
-a medicare Advantage prescription drug plan (MA-PD) to another MA-PD or original Medicare with a Prescription Drug Plan (PDP);
-one MA-only plan (no prescription drug coverage) to another MA only plan or original Medicare with no drug coverage;
-original Medicare with a PDP to a MA-PD; or
-original Medicare with no drug coverage to a MA-only plan.
A beneficiary may make only one of these changes during an OEP. For a visual representation of the options, see the Health Assistance Partnership’s chart at www.hapnetwork.org/assets/pdfs/2007-MA-OEP-chart.pdf.
An OEP cannot be used to enroll in prescription drug coverage for the first time or to drop prescription drug coverage entirely; it also cannot be used to switch from one (non-Medicare Advantage) prescription drug plan to another (non-Medicare Advantage) prescription drug plan. In short, one cannot use the OEP to switch from a PDP to another PDP.
Medicaid beneficiaries have a continuous Special Enrollment Period that allows them to switch into or out of Medicare Advantage plans (including plans with Part D coverage) at anytime.
The landscape of enrollment options and limitations for Medicare beneficiaries, particularly with respect to prescription drug benefit coverage, is complex. Aggressive marketing by plans can add to the confusion and lead to mistakes and problems.
Source: Washington Weekly, volume XXXIII, Issue No. 11, March 16, 2007.
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