Estate Planning Blog Articles

Estate & Business Planning Law Firm Serving the Providence & Cranston, RI Areas

What Is the Government Doing about Misleading Medicare Ads?

Kathryn A. Coleman, director of the agency’s Medicare Drug and Health Plan Contract Administration Group, said in a three-page letter that CMS is immediately upgrading its review of marketing materials, which must be submitted under its regulatory “File and Use” authority for Medicare Advantage and Part D drug plans, and “may exercise its authority to prohibit” their use, reports MedPage Today’s recent article entitled “CMS Puts the Kibosh on Misleading Medicare Advantage Sales Pitches.”

Medicare Advantage marketing materials can now go live five days after submission, provided the company submitting them “certifies the material complies with all applicable standards.” However, beginning on January 1, Coleman said no television advertisements will qualify to be submitted under its “File and Use” authority, meaning the ads will not run until CMS approves them.

Coleman said the agency is “particularly concerned with recent national television advertisements promoting MA [Medicare Advantage] plan benefits and cost savings, which may only be available in limited-service areas or for limited groups of enrollees, overstate the available benefits, as well as use words and imagery that may confuse beneficiaries or cause them to believe the advertisement is coming directly from the government.”

CMS is also looking at recordings of agent and broker calls with potential enrollees and is continuing its secret shopping of marketing events “by reviewing television, print, and internet marketing and calling related phone numbers and/or requesting information via online tools.”

CMS approved a final rule that requires all Medicare Advantage agents, brokers and third-party marketing organizations to record all their calls with potential enrollees “in their entirety, including the enrollment process.” In her letter, Coleman said reviews of recordings will continue.

“Our secret shopping activities have discovered that some agents were not complying with current regulation and unduly pressuring beneficiaries, as well as failing to provide accurate or enough information to assist a beneficiary in making an informed enrollment decision,” she wrote.

Coleman also noted that the agency will take “compliance action against plans for activities and materials that do not comply with CMS’ requirements.”

It also will review “all marketing complaints” received during the annual enrollment period, which runs from October 15 to December 7, and will target its “oversight and review on MA organizations and Part D sponsors with higher or increasing rates of complaints.”

Reference: MedPage Today (Oct. 21, 2022) “CMS Puts the Kibosh on Misleading Medicare Advantage Sales Pitches”

Can I Protect My Elderly Parents?

Estate planning requires the ability to be realistic about current health and assets, while considering the inevitable changes to come. For adults with aging parents, having a well-thought out estate plan, regardless of the size of the estate, becomes more urgent as the time to use the documents draws closer. A recent article, “Accessing needs of aging parents,” from The News-Enterprise explains the steps adult children need to take to protect their parents.

There are four key factors to consider: medical needs, housing and care needs, finances and legal needs. All require candid, non-emotional assessments.

Start with medical, housing and care needs. Consider the next five years. Is it likely their medical condition may decline? How will their present home work, if they are unable to manage steps or need to sleep and toilet on the same level? If their home is not conducive for aging in place, will they consider moving to a better situation—or can they afford to make any changes?

Next, examine health and care needs. Do they have long-term care insurance or do they expect to apply for Medicaid? If one spouse will need memory care or one spouse dies, will the surviving spouse have the resources needed to remain in home and receive the care they need? An experienced estate planning attorney will be able to evaluate their financial situation with regard to becoming eligible for Medicaid, if this will be needed. There is a five-year look-back period for Medicaid, so advance action is necessary to protect assets.

Do they have any estate planning documents in place? Is there a will, and when was it prepared? Ask any estate planning attorney how many times seniors have told their children a will exists, only for the children to learn the will is forty years old, woefully out of date and declared invalid by the probate court. Deceased individuals may be listed as agents for Power of Attorney and Medical Power of Attorney. Funds left for heirs may no longer exist. Laws for power of attorney may not include required provisions as a result of changes to the law.

More complicated issues may exist. If appreciated real estate property has been deeded to loved ones to protect the property from nursing home costs, are the beneficiaries prepared to pay the resulting taxes? If deeded real estate property was intentionally left unrecorded, transferring property could become a legal quagmire.

The best solution is to have an experienced estate planning attorney meet with the parents, review any existing documents and prepare an updated set of documents to achieve the parent’s goals, protect them in case of medical emergencies and allow parents and children to gain the peace of mind of knowing they are ready for the future. This includes a will, power of attorney, health care power of attorney, HIPAA release, living will and, depending upon the situation, may also include trusts.

Reference: The Times-Enterprise (Nov. 5, 2022) “Accessing needs of aging parents”

Can You Prevent Family Fights over Inheritance?

Inheritance battles can create new conflicts, inflame long-standing resentments and squander assets intended to make heir’s lives better. What can families do to prevent estate battles when a loved one’s intentions aren’t accepted is the question asked by the recent article, “Warning Signs Of Estate Disputes—And Ways to Avoid Them,” from mondaq.com.

Here are the more common scenarios leading to family estate battles:

  • Siblings who are always fighting over something
  • Second or third marriages
  • Disparate treatment of children, whether real or perceived
  • Mental illness or additional issues
  • Isolation or estrangement
  • Economic hardship

There are steps to take to minimize, if not eliminate the likelihood of estate battles. The most important is to have an estate plan in place, including all the necessary documents to clearly indicate your wishes. You may want to include a letter of intent, which is not a legally enforceable document. However, it can support the wishes expressed in estate planning documents.

Update the Estate Plan. Does your estate plan still achieve the desired outcome? This is especially important if the family has experienced big changes to finances or relationships. An estate plan from ten years ago may not reflect current circumstances.

Make Distributions Now. For some families, giving with “warm hands” is a gratifying experience and can remove wealth from the estate to avoid battles as everything’s already been given away. The pleasure of seeing families enjoy the fruits of your labor is not to be underestimated, like a granddaughter who is able to buy a home of her own or an entrepreneurial loved one getting help in a business venture.

Appoint a Non-Family Member as a Trustee. Warring factions within a family are not likely to resolve things on their own, especially when cash is at stake. Appointing a family member as a trustee could cause them to become a lightning rod for all of the family’s tensions. Without the confidence of beneficiaries, accusations of self-dealing or an innocent mistake could lead to litigation. Removing the emotions by having a non-family member serve as a professional trustee can lessen suspicion and decrease the chances of legal disputes.

Communicate, with a facilitator, if necessary. Families with a history of disputes often do better when a professional is involved. Depending on the severity of the dynamics, this could range from annual meetings with an estate planning attorney to explain how the estate plan works and have discussions about the parent’s wishes to monthly meetings with a family counselor.

A No-Contest Clause. For some families, a no-contest clause in the will can head off any issues from the start. If people are especially litigious, however, this may not be enough to stop them from pursuing a case. An experienced estate planning attorney will be able to recommend the use of this provision, based on knowing the family and how much wealth is involved.

Addressing the problem now. The biggest mistake is to sweep the issue under the proverbial rug and “let them fight over it when I’m gone.” A better legacy is to address the problem of the family squabbles and know you’ve done the right thing.

As we head into the holiday season, efforts to bring families together and prepare for the future will allow parents, children and grandchildren to enjoy their time together.

Reference: mondaq.com (Nov. 4, 2022) “Warning Signs Of Estate Disputes—And Ways to Avoid Them”

Does the Early Bird Really Catch the Worm?

Researchers from the University of Pittsburgh said that activity patterns – not just the intensity of activity – are just as important for healthy aging and mental health, reports Seasons’s recent article entitled “Why early birds (who also stay active) are happier and mentally stronger.”

“There’s something about getting going early, staying active all day and following the same routine each day that seems to be protecting older adults,” Stephen Smagula, PhD, first author of the study and associate professor of psychiatry and epidemiology at the University of Pittsburgh, said in a statement. “What’s exciting about these findings is that activity patterns are under voluntary control, which means that making intentional changes to one’s daily routine could improve health and wellness.”

The research team recruited 1,800 adults 65+ to study daily activity patterns. They wore an actigraph – a device that measures movement – on their wrists for seven days and completed questionnaires to evaluate cognitive function and depression symptoms.

“We don’t know exactly what people were doing, except whether they were active, how much, and when,” he said.

The results showed that 37.6% of the participants woke up early in the morning and remained active throughout the day and followed consistent routines.

“They also tend to follow the same pattern day in, day out,” he said. “Lo and behold, those same adults were happier, less depressed and had better cognitive function than other participants.”

The authors found that 32.6% of older adults had consistent daily patterns, but they were active for about 13.4 hours each day because they woke up at a later time in the morning. Those participants scored lower on cognitive tests and described more depressive symptoms, compared to the participants who woke up earlier in the day. Although this finding suggests that activity intensity and what you do is important for health, the duration and how long you’re active might be more important.

“This is a different way of thinking about activity,” he said. “You may not need to be sprinting or running a marathon but simply staying engaged with activities throughout the day.”

The remaining participants (29.8%) showed disrupted activity and inconsistent patterns during the day. They showed the highest rates of depression and had the worst performance on cognitive tests.

“Now we know a bit more on what to look for and what these disrupted patterns might be related to,” he said. “This is useful because it can guide future clinical research aimed at restoring strong routines and improving health.”

“We know that consistently engaging in morning activity – especially if you get sunlight exposure – can help set a strong circadian rhythm (which helps tell your body when to do what, when to be awake/alert and when to sleep),” Smagula said.

Regularly engaging in activities, whether physical, social or intellectual, also forces people to flex and use their brain muscles to solve problems, think, learn and converse, said Krithika Srivats, SVP of clinical practice and products for HGS AxisPoint Health.

“Moreover, keeping an active routine, even with low-impact activities, can fill your day with movement, interaction, purpose and meaning,” she said.

Finally, regular activity patterns are linked to a lower risk of heart disease and dementia and help people maintain independence.

Reference: Seasons (Sep. 18, 2022) “Why early birds (who also stay active) are happier and mentally stronger”

Could Your Estate Plan Be a Disaster?

You may think your estate plan is all set.However, it might not be. If you met with your attorney when your children were small, and your children are now grown and have children of their own, your estate could be a disaster waiting to happen, says a recent article “Today’s Business: Your estate plan—what could go wrong?” from the New Haven Register.

Most estate planning attorneys encourage their clients to revisit their estate plan every three to five years, with good reason. The size of your estate may have changed, you may have experienced a health issue, or you may have a new child or a grandchild. There may be tax law changes, statutes may have been updated and the plan you had three to five years ago may not accomplish what you want it to.

Many people say they “have nothing” and their estate is “simple.” They might also think “my spouse will get everything anyway.” This is wrong 99% of the time. There are unintended consequences of not having a will—accounts long forgotten, an untimely death of a joint owner, or a 40-year-old car with a higher value than anyone ever expected.

Your last will and testament designates who receives your assets and provides for any minors. A will can also help protect your wishes from a challenge by unwanted heirs after your passing.

The federal estate tax exemption today is $12.6 million, but if your will was created to minimize estate taxes when the exemption was $675,000, there may be unnecessary provisions in your plan. Heirs may be forced to set up inherited trusts or even sub-trusts. With today’s current exemption level, your plan may include trusts that no longer serve any purpose.

When was the last time you reviewed your will to see whether you still want the same people listed to serve as guardians for minor children, executors, or trustees? If those people are no longer in your family, or if the named person is now your ex, or if they’ve died, you have an ineffective estate plan.

Many adults believe they are too young to need an estate plan, or they’ve set up all of their assets to be owned jointly and, therefore, don’t need an estate plan. If one of the joint owners suffers a disability and is receiving government benefits, an inheritance could put all of their benefits at risk. Minor children might inherit your estate. However, the law does not permit minors to inherit assets, so someone needs to be named to serve as their conservator. If you don’t name someone, the court will, and it may not be the person you would choose.

What about using a template from an online website? Estate planning attorneys are called in to set things right from online wills with increasing frequency. The terms of a will are governed by state law and often these websites don’t explain how the document must be aligned with the statutes of the state where it is signed. Estate plans are not one-size-fits-all documents and a will deemed invalid by the court is the same as if there were no will at all.

If you don’t have an estate plan, if your estate plan is outdated, or if your estate plan was created using an online solution, your heirs may inherit a legal quagmire, in addition to your coin collection. Give yourself and them the peace of mind of knowing you’ve done the right thing and have your will updated or created with an experienced estate planning attorney.

Reference: New Haven Register (Oct. 29, 2022) “Today’s Business: Your estate plan—what could go wrong?”

How Many Americans Suffer from Dementia?

In a nationally representative cross-sectional study of about 3,500 older adults, 10% (95% CI 9-11) were classified as having dementia and 22% (95% CI 20-24) as having mild cognitive impairment, according to Jennifer Manly, PhD, of Columbia University Irving Medical Center in New York City, and colleagues.

MedPage Today’s recent article entitled “Dementia Strikes One in Ten Americans Over 65” notes that dementia prevalence rates were similar by sex but varied by age, education, and race, and ethnicity, they reported in JAMA Neurology.

The findings are from the first representative study of cognitive impairment in more than 20 years and are based on participants in the Harmonized Cognitive Assessment Protocol (HCAP) project of the ongoing, longitudinal Health and Retirement Study (HRS). HCAP is a cross-sectional random sample of HRS participants who were ages 65 or older in 2016.

“Because the HCAP study is part of the nationally representative and long-running Health and Retirement Study, these data not only show the burden of dementia now, but will be used in the future to track the trends in dementia burden in the decades ahead,” co-author Kenneth Langa, MD, PhD, of the University of Michigan in Ann Arbor, said in a statement.

“Following those trends will be especially important given the likely impact of COVID and other recent population health changes on the risk for dementia in the coming decades,” Langa added.

Of the nearly 10,000 age-eligible HRS participants, roughly 3,500 were selected for HCAP and completed a comprehensive neuropsychological test battery and an in-person interview between June 2016 and October 2017.

Compared with White participants, dementia was more common among Black participants, and mild cognitive impairment was more prevalent among Hispanic participants. The rates rose dramatically with age: 3% of people between ages 65-69 had dementia versus 35% of people ages 90 and older. Every 5-year increase in age led to higher risks of dementia and mild cognitive impairment.

Each additional year of school was also linked with a drop in risks of dementia and mild cognitive impairment. The findings were similar to other recent estimates of dementia prevalence in the U.S.

“With increasing longevity and the aging of the Baby Boom generation, cognitive impairment is projected to increase significantly over the next few decades, affecting individuals, families, and programs that provide care and services for people with dementia,” Manly said in a statement.

The study provides a snapshot in time and cannot assess cognitive impairment incidence or rates of progression among people with mild cognitive impairment, the researchers said.

The HCAP study’s cross-sectional design “does not allow for examination of survival bias, which could inflate prevalence if some groups are living longer with dementia or decrease estimates in groups with higher mortality,” Manly and colleagues added.

Reference: MedPage Today (Oct. 24, 2022) “Dementia Strikes One in Ten Americans Over 65”

What’s the Most Common Type of Debt for Retirees?

The goal of beginning your retirement in the black is admirable, the reality can be quite different.

Money Talks News’ recent article entitled “Sadly, This Is by Far the Most Common Debt Among Retirees” reports that a recent survey of 1,998 American retirees between the ages of 62 and 75 found that many retirees have debt.

Some likely ran out of time to pay off their debts before retiring, and others may have entered the red or simply deepened their debt level after leaving work.

Whatever the reason, these are the most common types of debt that retirees report — along with other debts that are part of retirement for many people.

  1. Credit card debt. A total of 40% of retirees said they had this type of debt in 2022, compared to 43% in 2020.

Credit card debt is almost always expensive, but it’s much scarier when you do not have a regular paycheck to help you pay bills.

  1. Mortgage. Retirees who said they had this type of debt in 2022 was 30% and is not available for 2020.

A home loan is one of the few types of borrowing that can be classified as “good debt.” Some experts say paying off a mortgage before retirement is advisable, but others argue against such a strategy.

  1. Car loans. Retirees who said they had this type of debt in 2022 was 23%, compared to 30% in 2020.

Unless you have a lot of money in savings, an auto loan is hard to avoid — whether you are retired or not. Therefore, it makes sense that nearly a quarter of retirees are still paying off this type of loan.

  1. Less common types of debt. Retirees said they’re also carrying these types of debts in 2022:
  • Medical debt: 11%
  • Home equity loan: 7%
  • Student loan: 4%
  • Business loan: 1%

Reference: Money Talks News (Oct. 20, 2022) “Sadly, This Is by Far the Most Common Debt Among Retirees”

There are Ways to Transfer Home to Your Children

Kiplinger’s recent article entitled “2 Clever Ways to Gift Your Home to Your Kids” explains that the most common way to transfer a property is for the children to inherit it when the parent passes away. An outright gift of the home to their child may mean higher property taxes in states that treat the gift as a sale. It’s also possible to finance the child’s purchase of the home or sell the property at a discount, known as a bargain sale.

These last two options might appear to be good solutions because many adult children struggle to buy a home at today’s soaring prices. However, crunch the numbers first.

If you sell your home to your child for less than what it’s worth, the IRS considers the difference between the fair market value and the sale price a gift. Therefor., if you sell a $1 million house to your child for $600,000, that $400,000 discount is deemed a gift. You won’t owe federal gift tax on the $400,000 unless your total lifetime gifts exceed the federal estate and gift tax exemption of $12.06 million in 2022, However, you must still file a federal gift tax return on IRS Form 709.

Using the same example, let’s look at the federal income tax consequences. If the parents are married, bought the home years ago and have a $200,000 tax basis in it, when they sell the house at a bargain price to the child, the tax basis gets split proportionately. Here, 40% of the basis ($80,000) is allocated to the gift and 60% ($120,000) to the sale. To determine the gain or loss from the sale, the sale-allocated tax basis is subtracted from the sale proceeds.

In our illustration, the parent’s $480,000 gain ($600,000 minus $120,000) is non-taxable because of the home sale exclusion. Homeowners who owned and used their principal residence for at least two of the five years before the sale can exclude up to $250,000 of the gain ($500,000 if married) from their income.

The child isn’t taxed on the gift portion. However, unlike inherited property, gifted property doesn’t get a stepped-up tax basis. In a bargain sale, the child gets a lower tax basis in the home, in this case $680,000 ($600,000 plus $80,000). If the child were to buy the home at its full $1 million value, the child’s tax basis would be $1 million.

Another option is to combine your bargain sale with a loan to your child, by issuing an installment note for the sale portion. This helps a child who can’t otherwise get third-party financing and allows the parents to charge lower interest rates than a lender, while generating some monthly income.

Be sure that the note is written, signed by the parents and child, includes the amounts and dates of monthly payments along with a maturity date and charges an interest rate that equals or exceeds the IRS’s set interest rate for the month in which the loan is made. Go through the legal steps of securing the note with the home, so your child can deduct interest payments made to you on Schedule A of Form 1040. You’ll have to pay tax on the interest income you receive from your child.

You can also make annual gifts by taking advantage of your annual $16,000 per person gift tax exclusion. If you do this, keep the gifts to your child separate from the note payments you get. With the annual per-person limit, you won’t have to file a gift tax return for these gifts.

Reference: Kiplinger (Dec. 23, 2021) “2 Clever Ways to Gift Your Home to Your Kids”

The Benefits of a Good Estate Plan

If you don’t have a comprehensive estate plan, state law will control. That’s unlikely to coincide with what you would choose to do. MSN’s recent article entitled “What is estate planning?” discusses the benefits of estate planning.

Minimizes taxes. Clever structuring of flexible retirement accounts, such as a Roth IRA, can help funnel more tax-free money to your heirs, while other tax-planning strategies like strategic charitable giving can help you mitigate estate taxes.

Prevents family disputes. The possibility of a fight about who gets what of value or even a sentimental treasure can arise without proper planning.

Clarifies your directives. Although you may have always intended for your niece to get a certain heirloom, unless it’s written out in your estate plan, it may not get into her hands. If you clearly spell out your wishes with the help of an experienced estate planning attorney, you can help your loved ones remember you fondly or at least get what you intended.

Avoids the time and expense of probate court. Done correctly, a trust can help your family avoid the hassles of probate court. Because of the ease of using a trust, more people are doing an end-run around probate and setting up their assets this way. You don’t need as much wealth as you might think to make it worthwhile.

Keeps your family assets together. Trusts can be a good way to make sure your money stays in the family. With the help of an estate planning attorney, a trust can keep a beneficiary from blowing your lifetime of hard work in a few years.

Protects your heirs. If you have minor children, a will can instruct who will take care of them. A living will can help heirs avoid some difficult health decisions during a parent’s end of life.

Sound estate planning can help avoid several potentially troubling problems.

Reference: MSN (Oct. 13, 2022) “What is estate planning?”

Major Blunders in Estate Planning

Kiplinger’s recent article entitled “5 Common Estate Planning Mistakes to Avoid” warns that if you overlook an important step or make a misstep in your estate planning, everything could be undone. You could instead burden your family with a challenging and headache-inducing estate.

There are many ways to get things wrong. Let’s look at a few:

  1. Not preparing for incapacity. The main reason to create a will is because we know that some day we’ll pass away. A will lets your family know how to distribute your property and other assets. A well-thought-out estate plan should identify the people authorized to make important decisions on your behalf regarding finances, health care and other critical matters. This is accomplished with powers of attorney. Once you are unconscious or afflicted with dementia, it will be too late. Make a list of decision-makers now, inform them of your wishes and create the necessary powers of attorney.
  2. Failing to include funeral and burial wishes. If you can purchase a burial plot and make funeral plans, put this in your estate planning documents. If you don’t, it may mean a lot of work for your family after your death. Name someone to be in charge of the funeral and burial arrangements and make sure that person understands your wishes. If you don’t detail your wishes prior to your death, it may become an issue for your loved ones.
  3. Ignoring the tax implications of transferring property. As generous as it may seem to give property to your family during your lifetime, it is usually much smarter – and far more generous – to delay the transfer until you’re deceased. If you convey the deed to property to your next of kin before you die, they may see a hefty tax bill whenever they sell the same property. That’s because the basis for that property will be tagged to the date on which you made your purchase, not the date you made your gift. As a result, it could leave your heirs scrambling to pay an enormous sum that would have been averted, had they been granted the deed after your death.
  4. Failing to designate backups for decision-makers. The best of plans can go south without a secondary beneficiary. This will address any unforeseen events. Name backups for your executor and other decision-makers. If they can’t fulfill their obligations, a court will name substitutes unless you’ve already planned for these contingencies.
  5. Not tracking beneficiary designations. In addition to stating the beneficiaries and their respective shares in your will, you must also communicate a directive to your bank that sets forth the interests in your account after your death. If you fail to do this, the bank’s rules will override anything you’re written in your will as to that account. That means your percentages will be different from those expressed in your will.

Take steps now to make certain there are no hidden issues that will haunt your family after you’ve passed.

Reference: Kiplinger (Oct. 17, 2022) “5 Common Estate Planning Mistakes to Avoid”=