Most utilized estate planning documents

A basic estate plan consists of a Power of Attorney, Health Care Proxy and Last Will and Testament. Having these documents as part of your basic estate plan will help you identify and address whatever legal, health, or financial issues you might encounter.

Durable Power of Attorney

WE often tell our clients if they have a well written, comprehensive Power of Attorney, we can accomplish (almost) anything needed. A Power of Attorney is an essential document to make sure your property, financial, and/or legal decisions are made effectively and efficiently by the person you trust (known as your agent). It is critically important the attorney preparing your Power of Attorney is aware of the many changes this document has undergone in the past decade, and how to maximize the efficiency and ease of use.  Too often, a new client will come in to our office with a Power of Attorney prepared by a “general practitioner” who does not regularly practice in this area, and critical language will be missing.  Without the authority given in a properly prepared and executed Power of Attorney, your family’s only other option might be a guardianship, which can be a long, public and expensive proceeding.

Health Care Proxy

EVERY person should have a Health Care Proxy.  The Health Care Proxy authorizes an agent (usually a family member) to make decisions regarding your medical care if you are no longer able to decide for yourself.  Also, the agent is designated to represent your wishes, so you should talk to your agent about important health care decisions including artificial respiration and hydration, tube feeding and other end of life decisions.  Hospitals and doctors must follow your health care agent’s decisions as if they were your own.  It can also indicate your intention to donate certain or all organs and tissue.  If you wish to donate organs and tissue.

Last Will and Testament

WE will save the trust discussion for another blog.  Many of our clients do not wish to put their property in trust, and we create a Last Will and Testament to meet the needs of their estate plan. The purpose of the Last Will and Testament is to direct how their estate is to be distributed, who will be the beneficiaries and who will represent the estate, known as the Executor or Personal Representative.  Often, the Last Will and Testament will authorize the creation of Testamentary Trusts, which would be created and funded after their death.  One example of a Testamentary Trust contained within a Last Will and Testament is when the property in the Last Will and Testament may be distributed to minor beneficiaries, and the creator of the Last Will and Testament would wish the property be held until the minor child achieves a certain age. Again, it is of the utmost importance that the Last Will and Testament is prepared according to the laws of the domicile state.  For example, some states require three witnesses, others require two.

Veterans Pension and Aid

Veterans Pension and Aid and Attendance 101

The Veterans Administration pension is not a pension in the traditional sense.  Rather, the veteran’s pension is a monthly amount designed to help the veteran or their spouse who needs assistance at home.  This amount can be used to pay unreimbursed medical expenses such as a home health aide.

To apply for the veteran’s pension, or the enhanced pension (if the applicant is homebound or in need of aid and attendance for daily needs), the applicant or their spouse must be income and resource eligible to receive this benefit. The spouse’s pension is often called a survivor’s pension.  Both the veteran’s pension and the survivor’s pension are tax-free. The survivor’s pension is not available to the surviving spouse if they remarry.

If the Veteran/spouse is housebound or requires the aid and attendance of another person, they could receive additional funds, also known as an enhanced pension. Effective December 1, 2018, if you are a veteran with no dependents, your yearly income must be less than $13,535.00.  If you are a housebound veteran with no dependents, your yearly income must be less than $16,530.00 and if you are a veteran with no dependents and require aid and attendance your yearly income must be less than $22,577.00.

The net worth limits to qualify for pension has increased to a “bright-line net worth” of $127, 061.00 as of December 1, 2018.  This is good news, as it replaces the former variable net worth limitation, which could be altered by certain factors, such as life expectancy and the rate of depletion of assets.  It is hopeful the new bright line net worth limit will expedite pension applications.

Veterans Aid and Attendance and Housebound Enhanced Pensions 102

As discussed in Veterans Pension and Aid and Attendance 101, a veteran may qualify for the aid and attendance increased monthly pension if they meet ONE of the following:

  1. The applicant requires the aid of another person to perform personal care such as bathing, dressing, feeding, bathroom assistance, aid with a prosthetic device or to protect yourself from hazards in your home environment.
  2. The applicant is bedridden due to their disability or disabilities.
  3. The applicant is a patient in a nursing home due to mental or physical disability (there may be a reduction).
  4. The applicant’s eyesight is 5/200 or less in both eyes.

A housebound veteran is defined as an applicant who is substantially confined to your immediate premises because of a permanent disability.

I Don’t Need a Will! – Or Do I?

Aside from the metaphysical question of whether anyone really “needs” something, there are several reasons why someone would conclude that establishing an updated & professionally prepared estate plan: Wills, Trusts, Powers of Attorney, Health care proxies – would be a good decision. Let’s focus for this discussion on Wills. NOT having a Will and passing away with “probate assets” – assets titled in the name of the decedent alone & without beneficiary designations – would result in New York State Law and not yourself deciding who gets your probate estate assets and in what amounts. Dying “intestate” – without a Will – in New York, with a surviving spouse and children, leaves the decision to New York State law, which states that as to probate assets the first $50,000 goes to the surviving spouse, with the balance split 50% to the surviving spouse & 50% to be shared equally by the surviving children. Perhaps that is what you might have chosen to happen – more likely it’s not. A Will allows you to decide who gets what and in what amounts. Another scenario that can result is that your probate assets could go to your underage children. “Underage” could mean whatever you decide it to mean – under 18 years of age, under 21, under 25, under 50 years of age. You also can retain your probate assets in special Trusts to protect a beneficiary from the consequences of receiving the assets – in addition to being too young, perhaps a child has disability issues, or addiction issues, which you feel receiving assets from you upon your death would be best held indirectly for their benefit in a Trust. Or perhaps there is a close relative of yours that you would NOT want to receive any of your assets, or less that they would otherwise receive under New York law. A properly drafted Will can make that decision happen. In summation, a properly drafted Will can make whatever intentions and decisions you have with regard to your probate assets happen. An attorney who focuses on the estate planning practice is the right person to talk about these and other planning issues.

Community Medicaid – At Home Medicaid Assistance – Nolfo McKenna, Albany NY

Eld Care

It is a very common misperception that Medicaid is only available for individuals in a nursing home. Community Medicaid is Medicaid assistance for those individuals who want to stay at home but need additional care and services. The qualification procedure for community Medicaid is different and more relaxed than for Medicaid in a residential facility. For example, instead of the five year transfer penalty, you can transfer assets out of your name in one month, and apply to qualify for Community Medicaid the following month. So, for those individuals who do not have a long term care plan in place, they may be able to transfer assets to an individual or an irrevocable trust in March and apply for benefits in April. The resource and income levels for the applicants are also different for home care than for residential Medicaid applicants.

Many individuals want to stay in their own home, but believe they must pay for all care received in the home, including personal care services, assistance with medications, meals and other needs. Some individuals would be able to stay in their home, if they have just a few hours a day of assistance. Ultimately, home care should be preferred from a state cost perspective, as nursing home costs are far more expensive than other types of care. There are many people who believe they must have enough money to pay for their home care. One of the benefits of private pay home care over Medicaid paid home care is that the individual and the family determine the number of hours needed on a daily basis, and are instrumental in choosing and researching any individual who comes into their home. It is often frightening for the elderly to open their home to unfamiliar caretakers. If they want to pick their own home care workers, they would have to pay for these workers. If these persons were found incapable or unsatisfactory, they could easily be replaced by another caretaker if they were private pay. However, there are waiver programs under the Medicaid umbrella which allow for more flexibility and choice if you qualify and are accepted.

If the individual needing care is paying for a caretaker privately, it is extremely important to speak with a tax professional regarding how the caretaker is paid. It obviously depends on how many hours the caretaker is in the home and what type of work they perform, but there are many considerations, such as vacation and sick pay, overtime pay, workplace injury, etc. Sometimes, caretakers are paid by the individuals or their families in cash, without considering tax withholdings, workers compensation and other employer mandates. If a caretaker is not being paid as an employee, but meets all the other necessary criteria, and the tax department or IRS may deem such individual to be an employee under the meaning of employee, any pay to such individual must be according to the law for employees. Obviously, there are individuals who would rather be paid “off the books” and may accept a lesser hourly sum if acceptable to the person paying for the care. However, this is often a much bigger problem down the road than just filing out the necessary forms and creating an employer/employee relationship. One of the dangers is that someone could get injured on the job, perhaps lifting the individual needing the care. If the daughter or son of the individual is responsible for hiring this person, they may be deemed the employer for workers compensation purposes, and may be liable for the injuries.

If you choose home care for a loved one, be aware there are care coordinators, also known as Geriatric Care Managers, who provide enormous assistance to those being cared for in their own home. They can coordinate the schedule of the care takers, medications, medical visits, equipment and many other issues.

Family members or friends caring for the individual may establish a personal service contract between themselves and the patient. Often, family members are the primary caregiver of the individual at home, and there is an acceptable methodology to be compensated for such services.

There are also different income and resource limitations for individuals and couples. If an individual has excess resources, they may transfer the excess to an irrevocable trust, or gift to individuals. If an individual has excess income, they may make use of a pooled trust, where their excess income would be used to pay their necessary expenses. The application for such a pooled trust can be cumbersome, but the payoff is the qualification for Medicaid services even with excess income over the allowable maximum. In order to apply for Community Medicaid, one must first ascertain if they exceed the resource and income thresholds. If there are excess resources and/or income, a plan must be put in place to transfer the resources and deal with the excess income, usually through a pooled trust. After all the transfers and trust is in place, an application for Community Medicaid must be submitted to the local Department of Social Services. The application will be reviewed, and the department may request any further necessary information.

In major metropolitan regions, 24 hour community Medicaid is far more common than in more sparsely populated areas. However, many individuals north of New York City do receive many hours of daily care. Obviously, in cities like New York City, where there is a shortage of nursing home beds, home care becomes a very viable option.


Nolfo McKenna – Probate in New York: Exposing the Myths Part 2 – Albany, NY

Probate Part 2 Serving as an Executor

What is involved if you are named as an Executor under a Last Will and Testament? An executor is considered a fiduciary under the law, and with that title comes specific responsibilities. An Executor must act in the best interest of the estate, and follow the decedent’s instructions as directed in the Last Will and Testament. My office gets involved when someone who has been named as an Executor under a Will is seeking to probate that Will. My office handles probate proceedings for estates in Albany NY, Clifton Park NY, Schenectady NY, Rensselaer NY, Saratoga NY, as well as Greene and Ulster County. Each county has its own Surrogate’s Court.

If someone passes away in Albany County, and they resided in Rensselaer County, but owned a condo in Saratoga County for track season, and a cabin on a lake in Ulster County for fishing, we would generally bring the probate proceeding in Rensselaer County, not Albany, Saratoga or Ulster County. If we attempted to bring the probate proceeding in Ulster County, the Surrogate’s Court in Ulster County would most likely reject our probate petition and advise us to file our probate petition in Rensselaer County. This is due to our laws regarding jurisdiction and venue for probate proceedings. What if the executor lives in Albany County? That is not a problem with most courts. Occasionally, a Surrogate’s Court will require a bond filed by the executor, but that is not common in most probate proceedings. My office has represented many executors who reside in another state, including Florida and California.  There may be some delays due to time spent mailing items back and forth, but with today’s technology, it is rarely a problem.

What if the named executor has passed away, is ill or is otherwise unable to act as executor in a probate proceeding? Most attorneys will suggest a client name a Successor Executor in the Will, and by submitting a form or a death certificate from the Primary Executor named in the will, the Successor Executor may serve as the Executor.

Can the Executor start their work immediately after the death of the decedent? The simple answer is no. The executor must be appointed by the appropriate Surrogate’s Court, in the appropriate county. In fact, I advise all Executors to wait until they are properly appointed. However, if there is a pressing matter, such as a property in Albany County that is expected to be sold before the Surrogate’s Court has an opportunity to probate the Will, then my office would petition the Surrogate’s Court for Temporary Letters Testamentary.

When the Will is submitted for probate, the Court will set a return date in Surrogate’s Court. It is at that time anyone who wishes to contest the validity of the Will appears in person, or by their attorney. If no one opposes the probate, and the Court finds no issues with the validity of the Will, the probate process will move forward, and the Court will issue the Executor Letters Testamentary. These letters allow the Executor to act on behalf of the Estate. The Executor may collect the assets of the estates, pay valid debts and distribute property.

Nolfo McKenna – Probate in New York: Exposing the Myths Part I – Albany, NY

Many people in New York cringe when they hear the word PROBATE. Wills, court, inheritance, will contests and lawyers are only some of the negative words often associated with probate, which can often be a relatively simple court process. Many of the probate proceedings I have submitted in Albany NY, Rensselaer NY, Saratoga NY and Schenectady County Surrogate’s Court have been approved relatively quickly. Probate is basically just the process the Surrogate’s Court follows to prove the validity of the will being offered by the Executor. The Executor is the person named in the will to represent the estate. If the person making the will, often called the Testator, is of sound mind and the will is signed and executed properly, and the beneficiaries who would inherit from the estate are agreeable, the probate process should proceed without problems in Albany, Saratoga, Schenectady and Rensselaer County, and the Executor should be appointed in a timely manner.

Often, if the will was executed by a person who is survived by a spouse, and the spouse is either a joint owner or a beneficiary on most of their assets, the probate and estate may be relatively small and simple. If an asset passes outside the probate estate because there is another owner listed, that asset is not a probate asset and not part of the probate proceeding, although it may be considered part of the estate for estate and inheritance tax. Such asset is considered passed to the beneficiary by operation of law.

Assuming there are assets in the Testator’s name alone, without a joint account holder or named beneficiary, those assets are called probate assets. Probate assets can include real property, bank accounts, investment accounts, antiques and collections, automobiles and other property. The total of such assets are called the probate estate.

The probate petition will include these assets, and will also include the names and addresses of all those who would inherit from the Testator, generally close family members. The probate petition may also include any charities listed in the will, and any people outside the family who are beneficiaries and would receive an inheritance under the will.

Where a will is offered for probate largely depends on the county of domicile of the Testator. If the Testator lived all their life in Albany County, and owned real property in Albany County, but temporarily moved to an assisted living facility in Rensselaer County for a few months prior to their death, the will would most likely be offered for probate in Albany County Surrogate’s Court.

Lifetime Gifts – Estate Tax NY – Nolfo McKenna Albany NY, Saratoga NY


I wish you all a holiday season filled with peace, joy and happiness. As we approach the end of the calendar year, most of us inevitably look back on what we have accomplished this year, and what remains undone. Here are a few items to consider;

1. Last Will and Testaments and Trusts– If you have a Last Will and Testament or a Trust, you should review the documents every few years. You may have bequeathed specific property that has since been sold or exchanged. You may wish to change your beneficiaries, or the amount or percentage given to each beneficiary. Someone in your family or a close friend named as an executor, successor executor, trustee or guardian may have passed on or relocated. There may be changes to you or your family’s health, requiring amendments or additional documents to accommodate the changes.
2. Power of Attorney and Health Care Proxy– The same questions would apply regarding individuals named to act as either your agent under a Power of Attorney or your health care agent under a Health Care Proxy. It is important you name someone who is able and willing to act for you, and preferably also name a successor in each document.
3. Lifetime Gifts– Gifting has become a preferred method of estate planning under the current federal estate and gift tax laws. Since lifetime taxable gifts are added back to New York estate tax returns at a lower rate than if the property was passed through a taxable estate, gifting can be an excellent planning tool for many individuals. In 2013 and 2014, the annual gift tax exclusion is $14,000.00. What that means to you is you may give away $14,000.00 to an individual (or several individuals) without filing a gift tax return and without any gift tax.
4. Estate Tax– New York State has an estate tax that applies to taxable estates of $1,000,000.00 and above. However, there may be a recommendation this year to increase our state estate tax exemption from one to three million dollars. This would benefit many of our state’s middle class residents, as their estate would then be exempt from filing and paying a state and federal estate tax. The federal estate tax applies to estate with $5,250,000.00 to $5,340,000.00 for 2014. That is the amount an individual can give away in lifetime gifts

Estate Planning Steps from Nolfo McKenna – Albany NY, Saratoga NY

Nolfo McKenna Albany NY Malta NY

Your passing will be a difficult time for your family and friends. How can you help your loved ones implement your wishes after you pass away?  There are several ways to ease the organizational burden:  

  • Pre-Plan Your Final Arrangements -Many people have discovered a pre-planned funeral is an excellent way to ensure their wishes will be carried out.  You should visit at least two different facilities, compare costs and discuss your wishes with an experienced professional.  There are those who want a religious service, and although this cannot always be prearranged, you may be able to determine some of the content of the service, and create a list with your detailed plan for those whom you trust to carry out your wishes.
  • Create A Family Tree – This can be a wonderful legacy for future generations, as well as a helpful tool for your estate.  You can create your geneology through research or on line if you need some assistance.  After your passing, the family tree is available should a search for heirs arise.
  • Identify Your Assets – Create a listing of your assets including bank accounts, insurance policies, retirement accounts, investments and any collections you have.  Be sure and include the name of the institution and the account number of each item.  This will be extremely helpful, as often there are assets unknown to family members.
  • Safe Deposit Box -This can be a valuable tool for many items, but not for your Last Will and Testament .  Your will should be in a place the named executor or executrix can access easily.  Some clients prefer to leave their original will in the safe of the attorney’s office.
  • Organize Your Important Documents – Keep copies or originals of titles, deeds, notes, mortgages, insurance policies and other identifying information together in a safe place.
  • Discuss Your Plan with Your Loved Ones– Let your family and other chosen individuals know what you want, and how you want your property distributed.  Often, if you have certain wishes that may be contrary to one of your loved one’s wishes, discussing it beforehand will prevent a disagreement or contest in the future.

Nolfo McKenna Law Office. Nolfo McKenna serves Malta NY residents and surrounding area; Clifton Park, NY, Ballston Lake NY, Ballston Spa NY, Burnt Hills NY, Mechanicville NY, Stillwater NY and Saratoga NY.