The ABLE Account & Its Use for Disabled Individuals

September 22, 2018Alberts Law, Estate Planning, Social Security DisabilityABLE account, direct deposits, disabled individual, Medicaid, Michael Alberts, SSIalberts

An ABLE account is a savings account that allows an individual with a qualifying disability to pay for numerous disability-related expenses while not affecting eligibility for “means-tested” benefits such as Supplemental Security Income (SSI) and Medical Assistance (as Medicaid is known in Pennsylvania). In other words, when set up and administered according to the applicable laws and regulations, this account will not cause the disabled person to have countable income or assets that are too high to receive certain public benefits that are based on the recipient being virtually destitute. Before reviewing some important details about the ABLE account, we first should look at the federal and state laws that created this tool.

The ABLE Act of 2014

President Obama signed the Achieving a Better Life Experience (ABLE) Act of 2014 on December 19, 2014. Its two main purposes were “[t]o encourage and assist individuals and families in saving private funds for the purpose of supporting individuals with disabilities to maintain health, independence, and quality of life” and “[t]o provide secure funding for disability-related expenses on behalf of designated beneficiaries with disabilities that will supplement, but not supplant, (medical) benefits.” This amended the Internal Revenue Code (IRC) to allow qualified ABLE programs in Section 529A.

Federal law now permitted disabled individuals and their family members to access tax-free savings and investment options as an incentive to save funds to be used to support the health, independence, and quality of life of the individuals with disabilities. However, states would have to establish programs to permit individuals to establish these ABLE accounts – this means that a person must make sure that a state also passed legislation before trying to set up an account. Since states need to follow the definitions regarding ABLE accounts, the IRC is the starting point in understanding the meaning of this savings tool for disabled individuals.

After the passage of the new law, the Internal Revenue Code allows an individual with a “qualifying” disability to have a tax-preferred savings account that would not affect eligibility for SSI or Medical Assistance. The framework for Section 529A accounts was based on the IRC’s 529 college-savings plans and permits payments, including an ABLE account’s earnings, to pay for “qualified” expenses. The meanings of “qualifying” and “qualified” need to be defined.

“Individual with a Qualifying Disability”

A person must meet the definition of an individual with a qualifying disability to have an ABLE account. Section 529A(e) of the Internal Revenue Code provides guidance here. An individual must be entitled to benefits based on blindness or disability under title II (Social Security Disability) or XVI (SSI) of the Social Security Act, and this condition had to start prior to the person reaching the age of 26. There is an exception to this definition, though.

This involves the person submitting a disability certification to the Secretary of the Treasury (or an official designated by the Secretary) for the year in question. The certification can be submitted by the individual, a parent, or a guardian of the individual.

It would state that the person has a medically determinable physical and/or mental impairment causing “marked and severe” functional limitations, which is expected to last (or has lasted) at least 12 consecutive months or is expected to result in death (if this is likely to occur prior to the 12-month period) or is blind as defined by the Social Security Act. The certification must include that the disabling impairment began before the person’s 26th birthday and needs to include a copy of a physician’s diagnosis of the relevant impairment(s). If any of these are done to the satisfaction of the Treasury secretary, the individual would have a qualifying disability under the criteria of the ABLE Act.

“Qualified Disability Expenses (QDE)”

As for Qualified Disability Expenses (QDE), these must be related to the beneficiary’s disability and are made for the benefit of an eligible individual who is the designated beneficiary. Under IRC Section 529A(e)(5), these can include the following eleven categories of expenses: education; housing; transportation; employment training and support; assistive technology and personal support services; health, prevention and wellness; financial management and administrative services; legal fees; expenses for oversight and monitoring; funeral and burial expenses; and other miscellaneous expenses approved by the Secretary of the Treasury (or a designee of the Secretary) under regulations and consistent with the purposes of this section.

If the person is receiving SSI, distributions from an ABLE account could trigger a one-third reduction in SSI due to in-kind expense rule when they pay for shelter expenses. However, according POMS SI 01130.740 from the Social Security Administration, the beneficiary’s SSI benefits will not be impacted as long as any funds from an ABLE account that are used to pay housing expenses are spent in the same calendar month that those funds are withdrawn.

In addition, a person who uses funds from the account for purposes that are not considered to be Qualified Disability Expenses faces another type of penalty. Amounts for “non-qualified expenses” are likely to be subject to federal and state tax consequences. Although the IRS has not provided much specific guidance, it has indicated that “Qualified Disability Expenses” will be interpreted broadly and will include “basic living expenses.”

Post-2014 Federal and Pennsylvania Legislation

There also were two federal amendments in December, 2017: the ABLE to Work Act and the ABLE Financial Planning Act. The first change allows individuals with disabilities to save additional amounts in their accounts above the annual maximum contribution of $15,000 for 2018 if they earn income while the latter amendment permits rollovers from a regular 529 account for college savings to an ABLE account. More expansive changes on the federal level have been mentioned but not enacted to date. The more important development in Pennsylvania after the passage of the initial federal law is the Pennsylvania Achieving a Better Life Experience (ABLE) Act, which was signed into law as of April 16, 2016 and introduced the ABLE program to this state.

Pennsylvania’s law follows the federal legislation. For this reason, most of the following aspects of Pennsylvania’s program will reference federal law, regulations, and rules. However, state-specific choices will be identified as pertaining to an ABLE account established pursuant to Pennsylvania’s program, as overseen by its Department of the Treasury.

The ABLE Account is Only One Tool to be Considered

There is an important thought to keep in mind before deciding to set up an ABLE account. The individual needs to remember that this is only one option for seeking to enhance the life of someone who is disabled. Any decisions about which tools merit consideration will depend on the situation, which includes the needs of the disabled person and the financial ability to implement whichever tool(s) seem to be most advantageous.

In addition to an ABLE account, there are various special needs trusts that can be useful. These include first-party (d)(4)(C) pooled special needs trusts, third-party pooled special needs trusts, first-party (d)(4)(A) non-pooled special needs trusts, and third-party non-pooled special needs trusts. Depending on the circumstances, each of these can be the “right” choice. For example, when proceeds from life insurance or an inheritance are involved, then an ABLE account would not be the best choice. Instead, this is a case in which the third-party special needs trust makes more sense.

At the same time, ABLE accounts have their own benefits as tools to enhance the lives of people with disabilities. An ABLE account allows individuals to live more independently and is ideal for avoiding the need for spend down. It also preserves small amounts of money while not incurring the expense of creating a first-party special needs trust. An additional strength is that permits beneficiaries who otherwise would refuse to give up control of their own funds to preserve SSI and Medical Assistance eligibility to retain this eligibility without surrendering control.

Additionally, the account allows a disabled individual who works to accumulate of wages over time and, as noted previously, avoids the penalty of the SSI one-third reduction rule for receiving assistance with housing expenses. Also, while an individual is able to withdraw and spend money any time for any reason, an even bigger benefit of an ABLE account is being able to save over time so that the account can grow and provide the opportunity to pay for more major or future disability expenses.

Overall, these planning tools share an ability to protect eligibility for SSI and Medical Assistance while providing a means to pay costs for goods and services that can enhance the disabled person’s quality of life. However, each is covered by its own rules and regulations, which means that any choice among this group can be beneficial depending on the circumstances (as noted in the prior paragraph when life insurance or an inheritance is the reason behind the plan) and when it is managed properly.

Furthermore, they generally are not mutually exclusive and can co-exist in ways to provide more benefits together than any of them could on an individual basis. As will be detailed, ABLE accounts offer flexibility in the ways that they help their beneficiaries. On the other hand, an individual is limited to having only one ABLE account (POMS SI 01130.740). A special needs trust can be used to handle additional assets, and, when it is a third-party special needs trust (whether pooled or non-pooled), it also can avoid payback provisions for Medical Assistance that ABLE accounts are likely to face. The best advice is to avoid thinking that the existence of one of these tools renders the others irrelevant. Since each has its own strengths and weaknesses, a combination of them, when possible, should be considered.

Setting Up an ABLE Account

While knowing what can be done with an ABLE account is important, anyone who wants to obtain its benefits should know some of the steps and requirements involved in setting up the account. Enrolling in Pennsylvania’s ABLE program (known as PA ABLE) is the starting point. The beneficiary of the PA ABLE account has to have a disability that began before the age of 26 and must be eligible each year that she or he is in the program. During the enrollment process, the individual is asked to certify that, if the disabling condition changes to make the person ineligible for an ABLE account, the person will notify the PA ABLE program. Based on that certification, PA ABLE assumes that eligibility continues unless notified of any change.

The person who actually sets up the account can be any of the following: the beneficiary, the designated beneficiary’s parent, her or his legal guardian, or an agent acting under power of attorney. Then, after the account has been created, any person can contribute to the account – this includes the beneficiary designated on the account. Because any “person” can make contributions, one needs to bear in mind how a person is defined legally. The IRS defines a “person” as an individual, trust, estate, partnership, association, company, or corporation under 26 U.S.C. S7701(a)(1).

Federal law establishes assets that can fund an ABLE account. Cash assets are permitted while real estate and other non-cash assets cannot be used (26 USC 529A).

In addition, when an account has been established, deposits into the ABLE account are irrevocable. However, POMS SI 01130.740 does specify that funds in an ABLE account can be transferred to another qualifying beneficiary if that person is a sibling (which includes brothers and sisters, stepbrothers and stepsisters, and half-brothers and half-sisters). Furthermore, the ABLE account can be transferred without tax consequences as long as the sibling is an individual with a qualifying disability. Otherwise, the transfer is considered a non-qualified withdrawal, which will incur federal and state income taxes on earnings plus an added 10-percent federal tax.

Contributions when the beneficiary receives SSI need to be handled carefully. In this situation, gifts should be deposited directly into the beneficiary’s account because, if the funds are given to the SSI recipient to deposit, the gift likely will affect the SSI to be received.

To help others make gifts, the beneficiary can provide account information for others to make contributions that will be credited to the correct account. If the beneficiary has a Ugift code, this can be given to family and friends to allow direct contributions to the individual’s PA ABLE account using the website at UgiftABLE.com.

Some ABLE “Contributions” Actually Are Counted as Income

While funds that are deposited directly into the account are contributions to that account, the fact that the money never touched the designated beneficiary’s hands before it was placed in the ABLE account cannot hide what would be income if paid to an SSI recipient before it was deposited into the account (see SI 01130.740C.1.a). A payment owed to the designated beneficiary is income that will reduce the SSI entitlement in the month that it is received, regardless of whether the money is paid to the individual or deposited into the ABLE account, instead.

If something would have been income when received by the beneficiary, direct deposits won’t change this. The individual will be seen as being paid income and then making a contribution to her or his ABLE account. SSI is affected when income (even if it is a direct deposit) is received. The direct deposit essentially is viewed as a two-step process. Because the funds are defined as income for someone who gets SSI, Social Security’s regulations make sure that the money will be treated as income at first. Then, the direct deposit itself is viewed as the beneficiary depositing this income into the ABLE account, which is considered a first-party contribution to the account.

This contribution is not counted as income but will reviewed under the SSI resource rules beginning with the start of the next month. This treatment of direct deposits often is seen with government benefits (such as SSD payments and VA benefits), pensions, and mandatory support payments (including child support and alimony). The existence of the ABLE account does not alter the fact that income has been received by a beneficiary but can shield this amount from being counted as a resource in the months that follow.

PA ABLE’s Investment Options for ABLE Accounts

The program for each state provides different investment options. The choice of investment options can be changed twice annually. The beneficiary or the person designated with signing authority over the account must make financial records available that show all account activity according to 26 USC Section 529A.

PA ABLE’s savings program currently has seven investment options, and contributions can be made to one, or a combination, of these options. Six are asset-allocation options with varying blends of stocks, bonds, and cash while the final one is an FDIC-insured interest-bearing checking account with a debit card provided through Fifth Third Bank.

Also, one should bear in mind that contributions are not deductible for federal tax purposes, but there can be tax incentives offered by states for in-state eligible beneficiaries. (POMS SI 01130.740). For non-residents of Pennsylvania, they need to check with their state benefits agency to verify that the PA ABLE savings account will not affect the benefits’ treatment where they reside.

In 2018, the following numbers define thresholds involving ABLE accounts. A total of $15,000 can be contributed annually, although federal law permits account owners who are employed to exceed this total. The maximum applies to the total amount contributed by everyone – it is not an amount per each contributor. In addition to the limit on annual contributions, there is a maximum amount for an account, beyond which no further contributions can be made. This is $511,758 in 2018; while no further contributions would be possible, the account funds still can earn interest so the total balance could exceed this maximum.

Two final items should be noted. First, when someone contributes to a PA ABLE account, the person is entitled to an equivalent deduction from the Pennsylvania personal income tax for that year. Finally, a person can rollover money currently in a 529 college savings account into a PA ABLE account, as long as the annual contribution limit is not exceeded.

The 2017 amendments introduced some important changes regarding contributions to these accounts – some of them have been mentioned already. The ABLE to Work Act allows the designated beneficiary to contribute an amount beyond the current contribution limitation, up to the lesser of the Federal Poverty Line for a one-person household ($12,060 for 2018) or the beneficiary’s compensation during the tax year.

The law also allows the beneficiary of the ABLE account who contributes to the account to claim a nonrefundable tax credit for eligible taxpayers who make qualified retirement savings contributions. The idea behind these is that people who have incentives to contribute to their accounts will become less dependent on the government over time.

ABLE Accounts and the Treatment of SSI & Medical Assistance

Other ways that ABLE accounts are made more attractive to qualifying individuals concern the treatment of SSI and Medical Assistance. With SSI, disbursements for qualifying expenses, coupled with an account balance not exceeding $100,000, will not affect SSI eligibility while, if the account balance does exceed $100,000, SSI eligibility is suspended but not terminated and will resume when the balance drops below $100,000 (POMS SI 01130.740). As for Medical Assistance, the beneficiary remains eligible if disbursements are for qualified expenses, and the account does not exceed the state’s aggregate contribution limit adopted from its 529 college-savings plan (26 USC Section 529A (b)(6)).

Operation of an ABLE Account

In terms of the operation of the account, an eligible individual generally has complete control of the account and can enter into contracts without needing a trustee or a representative to handle these affairs. For minors or adults who lack the capacity to contract, a parent, guardian or person with a Power of Attorney must open and handle the account.

An eligible beneficiary or person with signing authority (such as the beneficiary’s parent, legal guardian, or agent acting under power of attorney) is responsible for documenting disbursements and must categorize these in order to determine federal income tax obligations (IRS Notice 2015-81). Also, disbursements can be made by checks or credit cards, according to POMS SI 01130.740.

As for fees in Pennsylvania, there is no fee to open an account, and the initial contribution has a minimum of $25. There is an annual account maintenance fee of $60, with $15 deducted from an account each quarter. Using electronic delivery of statements reduces the total to $45 per year. Other fees may be assessed depending on the beneficiary’s choice among the six asset-allocation options, and Fifth Third Bank may assess banking charges if the option of the checking account is chosen. (See PA ABLE).

Fees vary with each state’s ABLE program. Set up and ongoing costs are nominal and are typically less than those associated with setting up a special needs trust. In addition, there is an account maintenance fee of $15 per quarter, which may be reduced to $11.25 per quarter if you choose to have program statements and information sent electronically. For the Fifth Third Bank checking account option there is an additional fee of $2.00 per month, which is waived if you elect to receive bank statements electronically or maintain an average monthly balance of $250. Additional bank fees may apply.

When an ABLE Account Terminates

Finally, the issue of what happens when an ABLE account ends needs to be considered. A person can keep an account open after she or he is no longer a qualifying individual as a buffer in case the person’s condition again becomes disabling so that the person is considered a qualified individual who is eligible for an ABLE account. When the individual is not qualified for an account, no one can make contributions to it, and withdrawals from it are treated as paying for non-qualified expenses.

When the beneficiary of an ABLE account dies in Pennsylvania, the funds in it can pay for any unpaid Qualified Disability Expenses, in addition to funeral and burial expenses. There are questions regarding whether or not the account should be part of the qualified individual’s estate. Until this is decided on the federal level, Pennsylvania will allow an account to be transferred to a sibling who is an individual with a qualifying disability.

If the assets in the account become part of the deceased beneficiary’s estate, investment gains while the assets are in the estate will face income taxation. However, prior to this, the account can be used to pay for Qualified Disability Expenses (which include funeral and burial expenses) to benefit from tax-free treatment.

Under Pennsylvania law, the Department of Human Services (DHS), which administers the state Medical Assistance program, cannot file a claim against a PA ABLE account. When these assets become part of the estate, the DHS then can file a claim to be repaid. Actually, there are two types of repayments for Medical Assistance to review.

The Pennsylvania DHS can make a claim against assets from a PA ABLE account that have become part of the estate of the disabled person who owned the account. This is limited to a decedent who was at least 55 years old and received Medical Assistance for nursing facility services, home and community-based services, and related hospital and prescription drug services paid after turning 55. Additionally, DHS repayment may be delayed when there is a surviving spouse, a child under 21, or a disabled child of any age.

The second type of payback is equivalent to payback from self-settled special needs trusts. The amount subject to payback is calculated from the date that the ABLE account was created and equals the amount of Medical Assistance paid by the DHS minus any premiums paid by, or on behalf of, the beneficiary to a Medicaid Buy-In program. Also, Qualified Disability Expenses that remain outstanding (including funeral and burial expenses) reduce the funds available for payback. The Medical Assistance repayment will total the extent to which the remaining funds cover the DHS claim.

This has been a look at a complicated but potentially useful financial tool for individuals who are disabled. With an ABLE account, there are a few points to remember. The individual can have only one account. Any disbursements from the account should be for Qualified Disability Expenses (QDE), and – due to income-tax consequences – the person must keep track of QDE and non-qualifying withdrawals that are not tax free. In addition, contributions have to be tracked because there is a maximum amount that can be contributed to the account each year. At this point, there is one final point of emphasis: an ABLE account can face Medical Assistance payback claims after the death of the disabled individual. This list touches on just some of what is important when setting up, running, and ultimately terminating such an account.

Risk Distribution by the Personal Representative of an Estate

June 21, 2018Alberts Law, Probate & Estate Administrationalberts law, personal representative, Probate & Estate Administration, risk distributionalberts

A risk distribution involves the personal representative of an estate distributing real or personal property without confirmation of the account by Orphans’ Court. 20 Pa.C.S. § 3532(a). The risk involves potential claims that may remain against the estate and property within it. The personal representative distributes estate property when estate debts may remain. She may have to pay the outstanding debt in this situation.

The Main Role of a Personal Representative

The personal representative gathers estate assets and then should pay off any debts that remain. If assets are transferred from the estate before debts are paid, the personal representative takes a risk that the debts and expenses of the estate may not be paid. The personal representative faces possible liability and may have to pay these personally. In particular, the person who is serves in this fiduciary capacity cannot ignore 20 Pa.C.S. 3392, which classifies payments that the estate may have to pay. It also provides the order in which charges and claims must be paid.

The personal representative must understand these classifications and make payments on claims with the highest priority before moving to the next highest class. However, he cannot decide to distribute property and ignore the duty to pay debts and expenses of the estate.

Personal Representative & Protection from Claimants

Focusing on estates of individuals who died on or after December 16, 1992, the personal representative could be making a risk distribution despite statutory notice of the claim not being timely provided if the personal representative knows of the claim. There are ways to protect oneself from personal liability. The personal representative must make a written demand on the claimant for written notice of the claim.

The claimant must respond by the later of 60 days after the demand or one year after the first complete advertisement of the grant of letters. When the later of the dates passes, the personal representative can make a distribution without being held liable for repayment of the claimant. See 20 Pa.C.S. § 3532 (b.1).

This can seem complex, which is why the personal representative should not rush through the administration of the estate. After all, if a risk distribution is made and someone brings a legitimate claim, then the personal representative will be responsible for taking care of the debt that the estate would have paid.

Specific Protections To Use With Risk Distributions

Personal representatives must be careful and look to protect themselves from liability whenever a risk distribution is being made. This can be done through acting prudently.

There are various steps that can be taken whenever a risk distribution is being contemplated. The following paragraphs review some of the possibilities that the personal representative can use for protection from liability when avoiding the time and cost of account confirmation at an audit is an objective of the personal representative.

The Estate Settlement Agreement

Parties in interest, who would receive property from the estate either through a Will or via intestacy law, may be required to execute an “estate settlement agreement” for the personal representative. This agreement contains the pertinent facts about the decedent’s death as well as information about the grant of letters. A copy of the Will, if any, would be attached. Generally, it should have a statement that the signing parties agree with the distributions made and any yet to be made.

Additionally, the personal representative should provide with a copy of an informal account, which does not have to be filed, with the agreement. There would be language in the agreement that the parties approve of the account. The personal representative needs to include all of these statements and obtain the necessary signatures before making any risk distribution.

Other Tools: Receipt & Release ; Refunding Agreement

The personal representative also would be wise to obtain a receipt, release, and refunding agreement from anyone who is receiving a risk distribution. Basically, these are used to acknowledge the receipt of any assets while releasing the personal representative of liability for any acts or omissions during the estate’s administration and asset distribution. An important and vital clause for the personal representative to include involves the recipients agreeing to return any funds or property if legitimate claims are found to exist after these distributions.

When the personal representative seeks receipts, releases, and refunding agreements as a form of insurance before making any risk distribution, she or he can look to incorporate them into the estate settlement agreement or may have them executed as separate (although related) documents. Also, receipts, releases, and refunding agreements can be filed with the clerk at Orphans’ Court, although this does not indicate approval of these documents by the Court. 20 Pa.C.S. § 3532(c). Also, copies of these filings and the estate settlement agreement should be retained by the personal representative, the estate’s attorney, and each recipient.

“Satisfaction of Award” Should Not Be Overlooked

In addition to getting a release for each risk distribution that is made, the personal representative should obtain a “satisfaction of award” from anyone who is to receive a risk distribution. This directs the clerk of the Orphans’ Court to mark as “satisfied” any award subsequent to the distribution.

An Example of Why These Documents Really Do Matter

All of these documents are important for the personal representative. For example, a receipt and release amounts to an indemnity contract between the personal representative and the individual receiving the risk distribution. This permits the personal representative to file a petition against anyone who refuses to provide indemnification, since 20 Pa.C.S. § 3532(c) provides the Orphans’ Court with continuing jurisdiction regarding these documents.

In this situation, if no payment is forthcoming within 20 days from notice of the initial petition, then the personal representative is permitted to file a Petition for Enforcement of the Order to Pay with the Court. A personal representative may not want to have to take what may seem to be a heavy-handed approach. However, being that a risk distribution is involved, a person acting in this capacity who ignores these precautions can lose his or her own funds while others, who should be responsible for the debt after accepting the distributions, are untouched by the risk that became reality.

The personal representative must remember that any protection that is available must be used when dealing with potential risk distributions. Handling an estate is difficult, and anyone who is willing to take this responsibility should look to be shielded from liability not tied to intentional wrongdoing.

A PAPER STREET AND PROPERTY TITLE

June 1, 2018Alberts Law, Topics of Interestalberts law, paper street, quitclaim deed, real property, title searchalberts

A paper street does not exist, but many can be found particularly on older subdivision plans. This could be a road or alley for which the developer set aside property that never was used for this purpose. It is an unopened street that shows up in recorded plans but, in reality, ends up being used as part of a yard or a wooded area next to your property. Since it does not appear in your deed, the question of actual ownership cannot be ignored because this affects what you can do with this property and who buys or sells it, for example.

The problem of the paper street is one that municipalities, townships, boroughs, and similar governmental bodies have come to recognize during the last 50 years or more, which is why paper streets tend to be found only in older subdivision plans. Most municipalities, for instance, have enacted ordinances regarding the creation of subdivisions that generally prevent the creation of paper streets, but this does not affect ones that already exist.

DRAFTING A SUBDIVISION AND “CREATING” PAPER STREETS

After you check the plan recorded for your subdivision at the Recorder of Deeds or similar county office, you can figure out if you live next to a street that is you never saw before. This was not the intent of the developer, who expected that the street or alley would be used. The paper street started out on paper but was supposed to become a real street. So, one might wonder what went wrong during this process.

The developers simply planned too much – the system of streets in the subdivision included more streets than were needed. You drive on some of the streets every day, and you watch weeds grow on others. The way that is developed usually involved the recording of the subdivision, in which the planned streets were dedicated to the municipality or borough, which would have to accept formally or informally the street as its own.

As set forth in Section 1961 of Title 36 in the Pennsylvania Statutes and enacted in 1889, municipalities and other governing bodies have 21 years to accept the land for the dedicated street after the plan has been recorded. See 36 P.S. §1961. When this is not formally accepted and is not used by the public for the 21-year period, which basically is a statute of limitations, then the local governing body is deemed to have abandoned the property, and a reversion occurs.

WHAT REVERSION OF OWNERSHIP MEANS HERE

One might expect that abandonment returns ownership to the original developer. However, the problem with this is that many developers did not remain in the community so, if they owned the reverted interest, they might not be around to be held accountable for the upkeep of the property that becomes a paper street. As spelled out in Rahn v. Hess, 378 Pa. 264, 269-270 (1954), the purchaser who acquires the property from the developer owns the reversionary interest unless the developer specifically retained that interest.

As a result, trees and other conditions on the paper street become the responsibility of the abutting property owners in the subdivision. With reversion occurring automatically, the abutting owners may not realize that they have this responsibility. In Pennsylvania, property owners whose lots abut a paper street generally own the street to its center line, even though there is no official record of this. Again, this is a principle confirmed in Rahn v. Hess, 378 Pa. 264, 270 (1954).

GOVERNMENTS: VACATE OR ABANDON AN UNWANTED PAPER STREET

Local governments can vacate paper streets before the 21-year period ends – they don’t have to accept the dedicated property and can make this official by adopting an ordinance, for example, in which the street is not accepted and any interest in the land is vacated. The only time that a municipality or borough can’t do this is when the paper street contains utility lines, for example, that it has to maintain and repair. On the other hand, the property owner cannot build a structure on the paper street that obstructs access to municipal water and sewer lines. Meanwhile, the abutting owners remain responsible for the property’s upkeep.

After abandonment, a municipality cannot decide to use the land without getting approval from the abutting owners. This is another indication of who really owns the property, but there still is nothing recorded, which limits possible uses by the actual owner.

PRIVATE EASEMENTS AND PROPERTY OWNERS IN A SUBDIVISION

Another limitation on the abutting owners is that all owners of lots within the subdivision have an easement that allows them to use the paper street as a right of way. Usually, this is of no consequence because the street never was laid out so there is no reason to use it when traveling by vehicle or foot through the subdivision. Additionally, as explained in Rahn v. Hess, 378 Pa. 264, 271 (1954), the Pennsylvania Supreme Court stated that this is a private contractual right that does not go away after a period of time.

Abutting owners who want complete ownership of their part of a paper street would have to get all other lot owners on the subdivision to sign waivers in which they give up their rights of way over the property. As explained in Estojak v. Mazsa, 522 Pa. 353 (1989), there are times that courts in Pennsylvania have recognized a doctrine similar to adverse possession has been recognized as a means of extinguishing easements when access to the right-of-way is blocked for 21 years, but attempts to get private agreements or to obtain court orders are time consuming and expensive. This has a role in title that an abutting owner may try to record, as will be discussed below.

BEGINNING THE PROCESS TO RECORD YOUR REVERSIONARY INTEREST

How would you take action to turn your reversionary interest into a recorded interest? Even if more than 21 years have passed since the original dedication was made, leaving the paper street abandoned by the local government, you would be wise to contact the local body in charge of zoning and related matters in order to find out if there will be any problems with moving toward having a deed drafted and recorded.

In these situations, there often is not much opposition, but you want to cooperate and attempt to gain cooperation in return. It could help to get an official declaration that the government has abandoned any interest in the property – this really isn’t required when the Statute of Limitations has expired and no interest involving utilities remains, though.

Then, you should approach all owners with property abutting the part of the street that you are claiming. Their consents are helpful, especially if the municipality suggests that you need to present a petition to vacate as the starting point. After taking the necessary actions here, you should be in position to move forward with the final steps.

Perhaps, the strongest factor motivating the owner of at least part of a paper street to obtain title that is recorded in the appropriate government office is to have the ability to do something with the property. While municipalities and townships that have abandoned these streets do not have a role in determining ownership rights in paper streets, the owner may need a permit to improve or repair a driveway that extends onto what was a paper street, for example. Having record title makes this easier to accomplish.

SECTION 1961 OF TITLE 36: THE STATUTE OF LIMITATIONS

With a street created and dedicated before May 9, 1889, the situation would be handled differently based on the date that the subdivision was laid out. If a street within a subdivision was opened prior to §1961’s enactment, then property owners cannot argue for this law’s retroactivity. In other words, the 21-year statute of limitations does not apply to this situation. For example, if a street was dedicated to a municipality in 1848 and then opened in 1888 (before §1961 became law), a property owner had no case against the municipality before or after the statute was passed because the street was opened before there was a limitation of 21 years for doing so.

However, after the Act of 1889 was passed, §1961 would apply. This was decided in Quicksall v. Philadelphia by Pennsylvania’s Supreme Court in 1896 when a street was dedicated in 1848 but not opened until 1892. While the gap of 44 years between dedication and opening was acceptable prior the Act of 1889, Philadelphia (in 1896) had to accept and open the dedicated street within 21 years of its creation in the recorded subdivision. Section 1961’s limitations period of 21 years now was applicable so there no longer was a right to open the street in question. Much more recently, the Commonwealth Court in Borough of Edgeworth v. Lilly in 1989 found that this principle from Quicksall still applies to streets dedicated before but opened after the Act of 1889 became law.

Once the governmental body acknowledges that sufficient time has passed for it so that, by the operation of this statute, it has abandoned any potential interest in the proper威而鋼
ty, then an abutting owner can consider the remaining actions required for a deed to be recorded since ownership reverts to the abutting owners, generally to the center line of the street, under Pennsylvania law.

While title goes to the owner, there is no record of this, which is the purpose of the deed. You could ask the municipality to pass an ordinance officially abandoning the property, but this would not be the first choice – after all, doing this is bound to be noticed by other lot owners in the subdivision, making the easement issue more obvious. The preferable way does not extinguish the private easements but does not call undue attention to them, either.

ESTABLISHING THE CENTER LINE

The owners of the abutting properties can work out an agreement to handle the issue. The important step involves having the property surveyed according to the new property line, which can be at the center of the unopened street or a different line to which the parties consent. Zeglin v. Gahagen, 812 A.2d 558 (Pa. 2002), provides a good overview of the Doctrine of Consentable Lines, which has some similarities to adverse possession, although they are not identical.

GETTING A NEW SURVEY TO DRAFT A NEW DEED

The survey provides a legal description that is used in a new deed. Because the property added to the old deed actually is part of the original lot, the drafter of the new deed may list the owner as the grantor and grantee, with the end result that the property of an abutting owner is combined into one parcel in a deed that then is recorded.

Due to the nature of this deed, you need to make sure that specific language is included. First, at the end of the legal description (also known as the recital), the deed would contain wording explaining how ownership reverted after 21 years based of 36 P.S. §1961 by operation of law and providing a corrected legal description of the property that uses the statute as the basis.

After the survey establishes the boundaries for your property that includes what was formerly the paper street, you would have a new deed that is drafted so that the title to all of the property owned by you can be recorded. This would give you formal title that would be found in a title search. The type of deed is important; with the other owners in the subdivision possessing a right of way over what has been a paper street, you only convey whatever interest you possess in the land that you are conveying to yourself at this point. The entire interest in the property cannot be transferred due to the easements.

FINAL STEPS AND CONSIDERATIONS

Unless you have taken whatever action is necessary to extinguish the easements, this outcome is the best that you can obtain. You end up with the property interest that you purchased in the subdivision originally as well as the property interest that reverted to you when the governmental body abandoned the property comprising the paper street, generally when the 21-year Statute of Limitations expires after the subdivision developer originally dedicated this land for a specific purpose to the governing body, such as a municipality or township, which did not accept and use the property as intended.

The Annuity: A Flexible Financial Tool

March 18, 2018Alberts Law, Estate Planning, Probate & Estate Administration, Topics of Interestalberts law, annuity, estate planning, flexible, probate & estate administraton, retirement, usesalberts

An annuity is a flexible financial tool that can be tailored to meet your needs and, possibly, have a role in your estate plan. The ability to deliver a stream of income makes annuities popular retirement planning tools. However, due to the variety of types and the multiple structures that can be used, the right match for a person’s needs can be created for other reasons as well.

What is an Annuity?

A basic definition of this financial tool is a good place to start when considering its use in financial planning. In the Internal Revenue Service’s Publication 575 (“Pension and Annuity Income”), an annuity is defined as a contract for a series of payments to be made at regular intervals over a period of more than one full year. You can choose to have the payments be either fixed so that you receive a definite amount each time or they can be variable, fluctuating based on investment performance or other factors. These payments could be immediate (the income payments are not delayed after the annuity is created) or deferred (payments are subject to an “accumulation” phase before the “payout” phase provides the income stream).

Also, you can buy the contract on your own, but these often are offered through a person’s employer. The latter are considered “qualified annuities” because they are components of tax-advantaged retirement plans. The first type of contract creates a “nonqualified” annuity as it is privately obtained from insurance companies or financial institutions, in general. There are differences in tax treatment between these two types, and the reasons for obtaining one that is nonqualified is not necessarily related to concerns regarding retirement income. The focus here will be on the nonqualified annuity purchased by an individual.

Who Are the Key “Players” in its Creation?

Some basic definitions of the main “players” when an annuity is created is a good starting point because they are important in determining the way that this tool will be set up. The annuity owner, the annuitant, and the beneficiary are the three categories essential to consider when planning.

The annuity owner purchases the contract that creates this investment. She creates the terms for the annuity with the insurance company or financial institution that issues it. Key decisions include choice of the definition of the “annuitant,” the designation of beneficiaries, and the determination of who would have the right to sell the contract.

While the annuity owner is the purchaser of the annuity, this person may not be the annuitant, who is the individual over whose life expectancy income is paid. Owners commonly name themselves as the annuitants, but there are considerations that can lead to different choices. For example, the annuity owner might want someone younger as the annuitant since the longer life expectancy leads to smaller payments that are paid over a longer period, which extends the tax liability and reduces the taxable income on a yearly basis.

Many annuities are set up with only one annuitant (a “single life” annuity), but others may have a second annuitant, who is to receive payments at regular intervals after the first annuitant’s death. These “joint and survivor” annuities often involve spouses, but this is not always true. Since the second annuitant can be considered a beneficiary, the joint and survivor annuity will considered in more detail later.

Although the periodic payments are calculated based on the annuitant’s life expectancy, the annuity owner must remember that actuarial tables do not dictate an individual’s lifespan. If the annuitant dies sooner than would be predicted, this would leave some of the assets remaining to be distributed. The annuity contract needs to include provisions for who receives what would remain in this circumstance. Beneficiaries are important for this reason.

The beneficiary is the third key “player” when the annuity is being created. Two points to bear in mind are that there can be multiple beneficiaries and that organizations can be beneficiaries. In addition, although an owner can name himself as the annuitant, he cannot be a beneficiary of his own annuity.

Unless the contract requires the naming of an irrevocable beneficiary, the owner usually can change beneficiaries. Furthermore, the owner may be wise to have multiple beneficiaries because, if there are remaining investments after an annuitant’s death, the owner probably would want to be sure that someone is alive to receive these assets.

Some Considerations regarding Beneficiaries

With no beneficiary, an annuity can go through probate or estate administration, but the assets that it still holds may be surrendered to the insurance company or financial institution that issued the contract. Therefore, even without multiple primary beneficiaries, the annuity owner should consider possible contingent beneficiaries, who receive the primary beneficiaries’ payments when the annuitant outlives these beneficiaries.

When multiple beneficiaries are included, the annuity contract can provide for the death benefits to be divided into equal shares or by specified percentages among the beneficiaries. The owner could decide to go in a different direction when choosing a beneficiary, as well. Beneficiaries do not have to be individuals, but the contract owner should consider the legal implications here.

Entities are subject to different requirements as the beneficiaries of annuities. A possible choice for the annuity owner is to assign any remaining payments to a trust. However, after the trust receives this amount, it has five years to pay out these funds. This means that spreading out the taxation based on life expectancy is not possible, while this option does exist when payments are transferred to an individual as the beneficiary.

Choices that Depend on Why You Want an Annuity

While the “players” now have been defined, this does not answer what an annuity is good for. With its flexibility as a contract between the owner and an insurance company or financial institution, there could be a number of reasons that annuities may be appealing. However, we will look at common categories (and choices) that are considered when it is being set up.

One choice is between an immediate annuity and a deferred annuity. A person could decide on a deferred annuity in which taxation is deferred. This is a benefit when retirement planning and may be a good choice if you have made the maximum contribution to a 401(K) plan or an IRA. It would not be subject to any IRS contribution limits and can create a guaranteed stream of income payments during retirement. There would be taxation at ordinary income rates at that time, and there could be annual charges from the financial institution or insurer that issued the contract. They also are likely to be subject to a 10-percent penalty from the IRS for withdrawals prior to the age of 59½.

The choice of deferred payments can be paired with either variable or fixed income payments. A deferred variable annuity is one in which the issuer of the policy places your assets in riskier investments. People with longer time horizons are better candidates for this type of annuity because they have the ability to weather market fluctuations that tend to occur during shorter investment periods. Payments from this annuity type depend on the success of the investments made with the assets that were traded to establish it.

A more conservative investor who is looking to set up guaranteed payments for a number of years after she retires probably would lean toward a deferred fixed annuity. Typical of all fixed annuities, this is not subject to market risk but instead makes regular periodic payments of specified amounts to the annuitant. It could produce earnings that compound on a tax-deferred basis, although withdrawals prior to 59½ years of age might incur the IRS’s 10-percent penalty.

Choosing an immediate annuity results is smaller periodic payments. It may appeal to someone who is or soon will be retired because the wait for the payment stream to begin is not an issue here. The tradeoff involves the acceptance of a smaller amount of guaranteed income for life or, at least, a set period of time (if a “fixed-period” annuity is chosen). Generally speaking, the owner should have a large lump sum of money to trade for a cash flow that extends into the future when creating an immediate annuity. However, there is an example below in which this asset “rule” does not hold.

This often is paired with a fixed income stream. However, the owner may be able to set up cost-of-living adjustments for the income stream over the annuity’s timeframe by paying an extra cost for this benefit.

Annuities May Help Even People of Modest Means

While an annuity can provide a stable source of financial support during retirement for many individuals, it is flexible enough to be adapted to individual circumstances. This can involve tailoring the annuity based on such variables as age, income, and net worth. Also, the amount available to invest will dictate the options that are realistic – even a modest investment might be used to create a workable annuity. Remember that reasons beyond increasing retirement income can be met through this financial instrument, and they should be examined to determine if such an investment might be desirable depending on a given situation.

For instance, one possibility that may be overlooked concerns Medical Assistance. The individual on Medical Assistance would have a relatively low income. This person might look at a single-premium immediate annuity since one often can be obtained even when there are rather limited assets available. To be used to supplement income in this situation, the annuity has to be irrevocable, actuarially sound, and – importantly – payable to the Medical Assistance agency that would be designated in Pennsylvania as the beneficiary after the recipient’s death.

Single-premium immediate annuities also could be useful for retirees who are over the age of 59½ but not yet 70½. If an individual wants to delay the payment of Social Security benefits as well as any tax-deferred distributions for as long as possible, then he or she might consider this type of annuity to provide a stream of income to realize this goal.

Increasing Usefulness by Purchasing Riders and Other Options

As has been noted previously, an annuity is a flexible tool. This flexibility can be increased when the owner purchases various riders or other options. For instance, a person might want to have a rider that provides for accelerated payouts in the event of a diagnosis of a terminal illness.

Riders and options often are added on behalf of beneficiaries. The decision to create a deferred or immediate annuity can influence this choice. With deferred annuities, beneficiaries receive the total amount contributed to the account if the annuitant dies during the accumulation phase and receive the amount remaining in this account after payments that were made to the deceased annuitant have been subtracted during the payout phase.

However, with many immediate annuities, such as a lifetime immediate income annuity, the issuing company keeps any money that remains at the annuitant’s death. The owner might purchase a refund option or a rider for a term certain regarding the annuitant’s life so that beneficiaries can get whatever remains if the annuitant dies when the option or rider would be effective.

A standard death benefit rider may be desirable when it is needed to designate beneficiaries for the annuity if the remaining funds after an annuitant’s death would be forfeited to the issuing company. This is the most basic rider of this type. Other death benefit riders can be used to affect the amount received by beneficiaries, as well. Examples include “return of premium” riders (this equals greater of the market value of the contract and the sum of all contributions minus fees and withdrawals) and “stepped-up” death benefit riders (beneficiaries receive the highest amount using the values of the contract on the anniversaries of the purchase date, with fees and withdrawals subtracted). The basic rule to remember is that a rider which increases the amount going to beneficiaries also will increase the annuity owner’s cost to add it.

A Look at Death Benefit Payout Options

Death benefit payout options involve how the benefit will be paid to beneficiaries instead of how much can be paid. Three options commonly exist for beneficiaries who are not spouses of the annuity owner. The lump-sum distribution transfers the designated funds in a single payment. A “non-qualified stretch” payout provides beneficiaries with minimum payments stretched out over their life expectancies. Finally, the five-year rule payout option allows beneficiaries to make withdrawals during a five-year period or receive the entire amount in the fifth year.

A surviving spouse who is a named beneficiary has an additional option here. The spouse could continue the annuity contract as the new owner and – if the deceased spouse was the annuitant – step into that role, taking over the stream of payments, which delays immediate tax consequences that other beneficiaries face. This is known as “spousal continuation.”

The Joint and Survivor Annuity

This leads again to consideration of “joint and survivor” annuities. It is important to remember that the beneficiary does not have to be a spouse. However, non-spouse beneficiaries again have less flexibility than a surviving spouse would have.

With a joint and survivor annuity not involving a spouse, the beneficiary has the right to receive a payment stream instead of a lump sum of what assets remain upon the death of the annuity owner. This beneficiary lacks the ability to change any terms of the annuity contract, though. As a result, any access to the annuity’s funds continue to be controlled by deceased owner’s contract.

When the surviving spouse is named as beneficiary of a joint and survivor annuity, she can transfer the contract into her name and assume all rights from the initial agreement. Based on the terms of the original contract, the spouse may have the ability to accept all remaining payments and any death benefits, as well as the right to choose beneficiaries (if the predeceasing spouse could have done so).

An Overview of the Topic of Taxation

Taxation of nonqualified annuities is complicated so what follows merely provides information to raise awareness of things to review. While employer-sponsored programs and commonly recognized retirement programs make payments that are not taxed, nonqualified annuities provide payments that are taxable income in Pennsylvania, as well as for federal income tax purposes. To the extent that the distributions that are taxable for federal income tax purposes, they also are taxable as interest income in Pennsylvania.

Nonqualified annuities must use what is termed the “general rule” for federal taxation. Under this rule, payments can consist of a tax-free part of an annuity payment that is based on the ratio of the cost of the annuity contract to the total expected return, which is the total amount that the annuitant expects to receive. The expected return is calculated from IRS life expectancy (actuarial) tables. You can look at IRS Publication 939 for more details regarding this rule.

Beneficiaries also face income taxation. They owe income tax on the difference between the principal paid into the annuity and its value at the annuitant’s death (minus the principal that was paid to fund the annuity initially). If a beneficiary receives this amount as a lump sum, then income tax is due immediately on this amount. If the payments are arranged to be spread out over time, then the taxation will be spread out as well.

When a single premium was paid for an annuity with named beneficiaries, then the annuity represents a return on an investment, which is subject to inheritance tax in Pennsylvania. It would be listed on Schedule G (Inter-Vivos Transfers and Miscellaneous Non-Probate Property) of an inheritance tax return. Notably, the $3,000 exclusion for transfers within one year of death that is mentioned in the instructions to this schedule would not apply in this situation.

When an annuity fund creates the future interests that are reported on Schedule K of the inheritance tax return, the value of the fund creating these interests is reported as part of the estate assets on whichever schedule from Schedule A through G of the tax return is appropriate. As always, you probably want to consult a tax expert about up-to-date information on the various ways that annuities can face taxation, of course.

* * * * *

With the extensive varieties of annuities that are available and the ability to customize these contracts by working with annuity experts who have a solid understanding of how to tailor this financial tool to meet a client’s needs, an annuity can be fashioned for someone who possesses only modest assets to apply for this purpose. If the size of any death benefits also is a concern, the contract owner also needs a well-crafted annuity that provides for a better future for a beneficiary for whom financial protection after the owner’s death is a goal. Remember that there are numerous possibilities that can be discussed in order to make the right choice for your specific circumstances.

Estate Inventory: Why It Matters and Tips on Its Preparation

November 6, 2017Alberts Law, Probate & Estate Administrationalberts law, Estate inventory, Probate & Estate Administrationalberts

Preparing and filing an estate inventory is an essential duty for the estate’s personal representative (the executor if there is a Will or the administrator if there is no Will). This is set forth in Section 3301 of the Probate, Estates and Fiduciaries Code in the Pennsylvania Consolidated Statutes. How this is done and why it is important need to be understood.

Estate Inventory Collects & Values the Decedent’s Property

Basically, the personal representative, who is in charge of the estate, must file a list of all real and personal property in the estate that is located in Pennsylvania. The property that is included is any property that the decedent owned solely or as a tenant in common. Property owned jointly with survivorship rights as well as property with named beneficiaries and “payable-on-death” accounts do not have to be listed in the estate inventory, although they could be included in a memorandum section in the interest of completeness.

Valuation of these assets is an important task of the personal representative. If you have this responsibility, you need to remember that all property in the estate inventory is valued as of the date of death. How this can be done for different types of assets will be reviewed in more detail, later. The date by which this document must be filed with the Register of Wills can differ based on circumstances, but it usually would be filed no later than the date that the estate’s inheritance tax return is due.

Why is the Estate Inventory Important?

Before looking at approaches to the preparation of the estate inventory, we should address why it is important. Of course, as mentioned earlier, Pennsylvania law names this task as a duty that a personal representative must fulfill so you have to do this because Pennsylvania tells you that you must. However, there are reasons that this duty exists.

One reason is that the estate inventory tells everyone with an interest in the estate all of the assets under the personal representative’s control. You have assumed personal responsibility for the listed assets and can be held liable for mishandling them. Their valuation also is used to determine the filing fee for the opening of the estate, which matters to the Commonwealth. This is why you can underestimate the estate’s value at the beginning when you do not know everything in the estate. When the estate inventory is filed, all assets will be included at their date-of-death values so the filing fee that was unpaid originally can be calculated at this point.

There are other reasons that make the estate inventory important for the personal representative. It can be useful when preparing the inheritance tax return because it includes assets and related information about those assets that will appear on various schedules of the return.

In addition, property listed in the estate inventory gives you the starting point for the estate accounting. This accounting should be provided at least on an informal basis if the estate is closed with a family settlement agreement. However, for an estate that closes after an estate audit at court, the accounting must be formally submitted to the court and interested parties for review. By having an accurate starting point, you are more likely to survive an audit unscathed.

Have a Plan to Locate & List Assets for the Estate Inventory

When you have a duty to complete, you need a good plan for handling this responsibility. As noted above, the estate inventory lists all real and personal property of the decedent at date-of-death values. There are numerous steps involved as you prepare the finished document.

The personal representative needs to find all the personal items, money and similar assets (such as bank accounts, stocks, and money-market funds), and real estate owned without any survivorship rights by the decedent. After identifying this property, you then have to value it. Generally, you can value the items without an appraisal. However, expensive personal property (which could include jewelry and art collections) and real estate (when located in Pennsylvania) will require a professional appraisal.

Detailed descriptions are important, especially with more valuable property. Real estate should be described well enough to be identified by someone looking at the estate inventory. Therefore, you should include its full address.

The type of property may lead to some less-than-obvious considerations. For example, financial accounts may involve a right to interest or dividends that are owed but not yet paid. These rights – if they exist at death – are estate property and must be listed in the estate inventory. A personal representative can work with the financial institutions to obtain theses values. Also, you could find previously unknown assets being held by Pennsylvania’s Bureau of Unclaimed Property.

When you begin to prepare the estate inventory, you probably would be wise to start with a more comprehensive list of property that then is grouped into categories, such as “household furnishings” or “wearing apparel,” before you file the document. Although it may not be filed, the more comprehensive list is useful for the personal representative tracking what becomes of the estate’s property.

Listings in an Estate Inventory: Categories v. Items

Household items and furnishings often are the most common estate items. Because they tend to have relatively small values, you could consider grouping them into categories. As an example, you probably would not produce a list of furniture that includes “sofa, $100; chair, $5”; and so forth. Instead, you would list “household furnishings,” encompassing items similar enough to be placed in a group. This is even more appropriate with small goods of minimal values falling within specific groups, such as “100 hardcover books,” “150 paperback books,” and “kitchen appliances.”

Remember that the items placed in a category with a blanket value are common items with nominal individual values. When the value of personal property is higher (e.g., something worth $3000), you would itemize it in the estate inventory. This would be true of jewelry. You might have a single category for costume jewelry, but you would itemize more expensive jewelry with their individual values and descriptions (stone type, carat weight, etc.).

Financial assets were mentioned earlier when looking at estate property that might be overlooked, such as accrued interest or dividends. All of the decedent’s financial assets are part of the estate inventory, though. You would include cash in the deceased person’s possession and bank accounts (with date-of-death balances). Also look for uncashed checks, balances of loans made to others, Certificates of Deposit, and similar financial assets. With financial accounts, you should include individual account types and numbers in the estate inventory.

Investments must be documented and valued. Among these are 401(k) accounts, IRAs, pensions and retirement savings, stocks, bonds, mutual funds, and annuities. Additionally, a personal representative must identify and list impending court awards that the estate will receive. Life insurance without a beneficiary also is in the estate, although it is not subject to inheritance tax.

Some Valuation Sources for the Estate Inventory

If the decedent owned motor vehicles, boats, or any other vehicles, the personal representative generally can use sources such as the Kelley Blue Book (https://www.kbb.com/) for a reasonable valuation. When listing these, you should include the make, model, and year for these vehicles.

The personal representative is responsible for locating any safe deposit boxes. Once located, they can be accessed by following the process detailed in Pennsylvania. Once you have permission, you need to include the number for the safe deposit box, where it is located, and the contents within the box.

Finding assets and then valuing them can be difficult at times. Financial assets may be difficult to identify at times, but the personal representative should review any personal income tax returns for the last 3 to 5 years for clues. Financial assets are not as difficult to value as they might be to find because there are public sources for such property as stocks and bonds. You would have to do some research to obtain the date-of-death values, but the information is not difficult to access. For other financial assets, you might have financial statements to use, or you could requests valuations from the financial institutions when necessary.

Valuation of Common Personal Items in an Estate Inventory

Personal property for which the title does not have to be transferred to the estate can seem to be difficult to value. Furniture, appliances, and clothing are notable examples. However, a personal representative seeking assistance with valuation for the estate inventory can find guides.

Establishing how much silverware, clothing, and small kitchen appliances are worth can be accomplished by using sources that provide estimates. For instance, you could use the Valuation Guide for Goodwill Donors, a similar source, for a starting point.

When an item is more valuable, you might want to turn to other sources that can establish a fair market value to include in the estate inventory. If the property is routinely sold in the marketplace, you could look at several ways to determine the value of single items or collections in this “middle” tier of possessions. One place to start often is eBay ( http://www.ebay.com ). If you are a registered user, you can type in the item that you are researching, and eBay searches for it. The search results are displayed for completed auctions, and you would look at the prices listed in green, which show sales. If the details of the estate item are similar to the details of the sold item, then you have a reference point when completing the estate inventory.

The Estate Inventory – The Effort Will Pay Off in the End

When you have uncovered all real and personal property that can be found and have chosen a reasonable method to obtain the date-of-death valuations, you then can prepare the official estate inventory to be filed with the local Register of Wills. Because it has various uses, the personal representative of an estate must take this task seriously. It is not easy, but it will make other aspects of handling an estate easier and more successful.

Workers Compensation Offset & Social Security Disability

October 1, 2017Alberts Law, Social Security Disabilityalberts law, Offset, Social Security Disability, Workers Compensationalberts

If you receive Workers Compensation when you also qualify for Social Security Disability (SSD) in Pennsylvania, your SSD award may be subject to Workers Compensation offset. Basically, your SSD could be reduced as a result.

A few points should be noted at the start. First, Supplemental Security Income (SSI) and Social Security retirement benefits are not subject to an offset generally. For example, SSI is affected in the usual manner: Workers Compensation is considered unearned income so, after the first $20 is this income is deducted, the rest reduces SSI dollar for dollar.

Second, Pennsylvania applies the Workers Compensation offset in the same way that all but approximately 14 other states do. These other states reduce the Workers Compensation award that is paid to someone receiving SSD. This only is possible if a state’s Worker Compensation law required this type of reduction under its law prior to February 18, 1981. For the purpose of this article, we will review the majority approach, specifically as Pennsylvania applies it. Also, since this is an introduction to the concept of offset, it will focus on a disabled individual without discussing this concept’s application when dependents also receive payments due to the disabled worker’s earnings record. Section 504 of the Social Security Handbook can be reviewed for its look at family benefits and additional details about concepts introduced here.

Workers Compensation Offset for a Disabled Individual

The standard rule is the total received in Workers Compensation and SSD cannot be more than 80 percent of the amount that you earned when fully employed. This amount officially is known as the “applicable limit.” To ensure that this is the maximum amount received, the Social Security Administration reduces your SSD income by the amount lowers the sum of these two payments by the necessary amount so that the maximum percentage is not exceeded. The reduction in your Social Security Disability is what is called the Workers Compensation offset.

The idea may not sound complicated, but the limit of 80 percent of your previous income level has to be defined and calculated. At this point, the idea is not as straightforward as the general rule might make it seem. The Social Security Administration calculates the maximum amount of combined benefits permitted by federal law so that it can reduce the SSD paid in a given month to keep this amount from exceeding the maximum. The impact of the Workers Compensation offset actually impacts people who earned less income because their benefits will be closer to the income that they earned while higher earners have a larger gap between earnings and the sum of the benefits that they possibly can receive.

Average Current Earnings & Workers Compensation Offset

When it comes to calculating the income that is used to determine if there will be a Workers Compensation offset, the SSA actually uses three methods of calculation to find your pre-injury income (which is called your “average current earnings”), which is the starting point in this process. Your “average current earnings” will be the highest income level produced by three methods of calculation.

The first calculation by Social Security is the average monthly wage – the “unindexed Primary Insurance Amount” – on which your Social Security Disability benefit is based. Then, there is the “high 5” calculation, which is the five consecutive years that add up to your earnings for this length of time; average monthly earnings are determined based on this amount. Finally, the average monthly earnings for either the calendar year in which you became disabled or any of the five calendar years prior to that is calculated – this result is known as the “high one.” Whichever of the three calculated amounts of average current earnings is highest will be used for the next step in finding the W必利勁
orkers Compensation offset. The “high one” tends to result in the highest value and ends up being the amount used.

Determining the Workers Compensation Offset

Next, the SSA uses its determination of your average current earnings and calculates 80 percent of it to set the combined dollar limit for your monthly SSD award plus your Workers Compensation amount. The Social Security Disability income will be reduced by the necessary amount to keep the total amount of benefits that you receive from exceeding the maximum. Potentially, your SSD could continue to be subject to the Workers Compensation offset until you reach full retirement age, at which point the SSA replaces your SSD with Social Security retirement benefits.

Monthly benefits are not the only category that can be affected under the federal law. Often, people receiving Workers Compensation will trade monthly payments for a lump sum. If this occurs, you would not avoid facing the Workers Compensation offset, but, since your regular SSD payments are received on a monthly basis, the Social Security Administration must alter the way that it handles the calculation of the average current earnings.

Adjustments Required for Payment of a Lump Sum

The general principle involves dividing this lump sum by the amount of Workers Compensation that you were getting each month. The possible reduction of SSD benefits focuses on the monthly amount that was being received by viewing its receipt as continuing for the number of months that is the result of this formula. To attempt to minimize the impact of the offset when a lump-sum settlement has been reached, a person might agree an amount replacing a lower Workers Compensation amount that would have been received monthly until the individual would reach Social Security’s retirement age (e.g., age 65 currently) so that the average current earnings that could trigger the offset are reduced.

An additional consideration is that the SSA may exclude medical and legal benefits that are part of the lump sum. If these amounts are subtracted out of the settlement, the reduced Workers Compensation settlement will yield fewer months for the offset potentially to be in effect after this total is divided by monthly amount currently being paid. However, you need to realize that the Social Security Administration may want to see the documentation of such a settlement before its acceptance.

In practice, the Workers Compensation offset has numerous potential pitfalls, and you have to be aware of these when you receive Social Security Disability benefits. If you take a chance without being sure that you have the implications explained to you by someone whom you trust, you may cost yourself some income to which you would have been entitled if you had understood the concepts that apply as well as how they apply to your situation.

Past Relevant Work and Disability according to Social Security

July 5, 2017Alberts Law, Social Security Disabilityalberts, Past Relevant Work, Social Security Disabilityalberts

Past Relevant Work (PRW) can prevent you from being found disabled by the Social Security Administration, but claimants often do not understand what this means and why it can be so important in deciding a disability claim. In the five-step sequential evaluation to determine whether or not a claimant is disabled, this issue does not arise until Step 4 but will end the case for someone found capable of doing PRW – this person cannot be disabled.

The Basic Definition of Past Relevant Work

At its most basic level, Past Relevant Work examines your current capacity to perform past work, which may show the ability to do Substantial Gainful Activity (SGA) now. To define Past Relevant Work, you focus on a specific portion of your past work – this is the “relevant” part. The Social Security Administration uses a 15-year window here. This window “closes” at the earlier of two dates: the “date last insured,” which is the last day that you met the requirements to be eligible for Social Security benefits, and the date that the disability determination is made. Then, you look at all of your work from whichever date applies to the date ending 15 years prior to this date.

However, not all of your past work within this timeframe is necessarily relevant (SSR 82-62).The general rule of thumb is that you had to have earnings that at least equaled the amount set as Substantial Gainful Activity (SGA) when you did the work. Relevant work also means that you performed the work long enough to know how to do the job. The level of skill required by a job provides the guidance here. For example, unskilled positions usually are considered to take no more than 30 days to learn. As a job becomes more complex to learn, you would need to earnings at SGA level for a longer period of time. Being able to explain what you had to do at a particular job is important because this demonstrates the necessary skill level, which, in turn, affects how long you had to do a job at SGA level for it to be considered PRW.

Past Relevant Work becomes very important if you are not found to meet or equal one of the SSA’s listed impairments because, while PRW cannot lead to a finding that you are disabled, it can eliminate the possibility of being found disabled. For example, if the Administrative Law Judge (ALJ) at a hearing decides that you did something that would be Past Relevant Work and also decides that your functional capacities at the time of the hearing would allow you to do this job now, then you are not disabled. Everything that would qualify as PRW during the prior 15 years must be beyond your functional capacities for your disability claim to reach the fifth and final step of the sequential evaluation (i.e., whether or not a claimant can do any job found in significant numbers in the national economy).

The SSA chose fifteen years as the lookback period for a specific reason. The theory is that jobs and their requirements gradually change over time with societal and technological changes occurring. What employers will need to do a particular position has to adjust to these changing demands. The thinking is that, after 15 years, a comparison between what you had to do then versus what you would have to do in the same work now is unrealistic.

Past Relevant Work: Viewed from Two Perspectives by Social Security

Past Relevant Work is viewed from two potentially different perspectives. First, an ALJ at a hearing wants to know how you performed this work (SSA – POMS: DI 25005.020 – PRW as the Claimant Performed It – 04/27/2017). This could be very different from the standard definition since one employer’s needs may differ from another’s. Being able to explain how you did a job on a function-by-function basis is crucial here. Another reason is that your work as you did it may not be among the standard definitions found in the Dictionary of Occupational Titles (the “DOT”) because many jobs are composed of various elements of different jobs. These “composite” positions are not found in the DOT.

As long as you can perform all of the essential parts of the job as you did it, you usually are not considered disabled. There is enough flexibility in the concept of Past Relevant Work that part-time work could be considered PRW under certain circumstances as could work performed during a 4-day week instead of the 5-day week that is part of the standard SGA definition. While you may be able to do PRW as you actually performed it, this flexibility regarding defining your Past Relevant Work might not preclude a finding of disability at Step 5. For example, an inability to work a 40-hour week could significantly erode your occupational base, leading to a favorable disability determination here.

The second way that Past Relevant Work is evaluated does focus on how the work generally is performed in the national economy. The DOT remains the starting point for this definition. A decision on disability should consider and discuss PRW from both perspectives.

In the context of the SSA’s sequential evaluation of disability claims, Past Relevant Work could be irrelevant if a final determination on a claim is made in any of the 3 prior steps (Code of Federal Regulations § 404.1560). However, since there is no guarantee that this will happen, a case must be approached with the idea that Step 4 will be reached. This means that a claimant’s PRW needs to be developed. The main source of documentation for vocational evidence of Past Relevant Work should be the claimant, who can describe past employment in terms of the tasks, responsibilities, and other factors that comprised the work. If the claimant cannot or, for some reason, will not provide this information and if no other source for this vocational information is available, the claim generally will be denied.

How the Ability to Do Past Relevant Work is Determined

After the information about PRW is determined, it is used to decide if you are able to do your Past Relevant Work. Your Residual Functional Capacity (RFC) – what you can do despite any and all limitations due to your impairments – is determined prior to Step 4. RFC is described on a function-by-function basis. This is compared to the physical and mental demands of your PRW at this point. The issue is whether the RFC will permit the claimant to do the Past Relevant Work as the claimant actually performed it or as it generally is done in the national economy. The facts of the case are used to decide how these comparisons are made.

In the end, if PRW cannot be done under either test, then the disability determination moves to Step 5. This is the final step, which looks at the ability to do any work at SGA level that is found in the national economy in significant numbers.

It is important to remember that a decision regarding Past Relevant Work does not occur in a vacuum. There must be a current comparison point, which is why mental and physical Residual Functional Capacity must be established prior to Step 4. For example, at a hearing, the Administrative Law Judge will determine the claimant’s functional limitations, looking at capacities to sit, stand, walk, lift, and carry (among other physical abilities). They are compared to the physical demands of PRW. If there is evidence of mental or emotional impairments that affect a person’s RFC, then the ALJ needs to know job responsibilities and duties from the PRW that would be likely to produce tension and anxiety, for example. Again, this is a function-by-function comparison of current Residual Functional Capacity with the claimant’s Past Relevant Work and what it required the person to do.

Quick Tips to Remember about the Development of Past Relevant Work

If you apply for disability, you always must bear in mind that you are the primary source of your work experience (Code of Federal Regulations § 404.1565). You need to give a detailed description of jobs that you performed. Then, you have to give credible testimony of the work requirements that you no longer can meet as well as the reasons why you cannot perform them anymore. Your testimony is not the only consideration, though. Disability decisions rely on medical evidence so the evaluation of medical evidence must support your reasons. Other sources that may influence any decision about your current ability to do PRW may come from a Vocational Expert at your hearing and even the somewhat outdated Dictionary of Occupational Titles, providing an overview of how your Past Relevant Work generally is performed in the national economy.

Taken together, all of these things lead to the decision at Step 4 of the sequential evaluation. The decision maker should state the relative weight given to medical and non-medical factors in the determination regarding your ability to do your Past Relevant Work. In doing this, your Residual Functional Capacity must be explained as well as the factual findings of the physical and mental demands of the past work being considered. In the final analysis, you need to remember that you will give much of the information needed to make this decision so you cannot afford to treat your Past Relevant Work as an afterthought. While no finding regarding this issue can ensure a favorable disability determination, a decision not to fully develop your Past Relevant Work can easily doom your disability claim.

Estate Property Transfers Without an Estate

March 14, 2017Alberts Law, Probate & Estate Administrationalberts law, estate property, Probate & Estate Administration, transferalberts

Pennsylvania provides a number of ways that estate property of a deceased individual can be distributed. Usually, this involves opening an estate. When this step is taken, the personal representative for the decedent receives Letters Testamentary as the executor named in a Will or gets Letters of Administration as the administrator when no Will naming an available executor is found. Pennsylvania law dictates who can be chosen as the administrator. Meanwhile, assets with a named beneficiary or a co-owner with a right of survivorship are transferred outside the estate.

There are other ways to distribute estate property without going through the usual steps to transfer estate property. When an estate has a total value of less than $50,000 in real and personal property, the personal representative can settle it by petition. This is possible one year after an estate is opened and the first complete advertisement of the grant of letters.

On the other hand, small estates consisting of no more than a gross value of $50,000 in personal property can be settled by a petition to the court. This does not require an estate to be opened. In this situation, you would not deal with any real estate owned by the deceased in this petition. The procedure also does not count payments to family and funeral directors under Section 3101 of the Probate, Estates and Fiduciaries (PEF) Code, which is the focus of the remainder of this article.

Payments to Family & Funeral Directors under Section 3101

Distributions under Section 3101 deal with the transfer of ownership of estate property without requiring any action involving an estate or the court. This property generally is monetary and can come from a variety of sources. As set out in the PEF Code, there are a number of ways for specific persons to obtain payments. The total value must be below a maximum amount, as well. The distribution would not involve the court system since you would not need to get a short certificate to transfer ownership. In addition, there is no need to present a petition when this provision applies. A brief review of what can be obtained without opening an estate follows.

The employer of a person who resided in Pennsylvania at the time of death can pay wages, salary, or employee benefits up to $5,000 to the person’s spouse, any of her children, her mother or father, or any brother or sister of the individual. The distribution preference in this and the other categories follows the order in which they are listed. Therefore, a surviving spouse is preferred over anyone else listed here. The person receiving payment of this estate property can be held accountable if the distribution was improper, although the employer is released from liability.

Banks, savings and loan associations, credit unions, and other savings organizations also are permitted to release funds of an estate after the death of a depositor, a member, or a certificate holder. The amount cannot exceed $10,000. Also, a receipt for the funeral bill or an affidavit of a licensed funeral director acknowledging satisfactory payment plans have been made has to be presented. The order of preference is the same as in the prior paragraph: a spouse, any child, the mother or father, or any sibling of the decedent.

A patient’s care account also can be accessed when the deceased was a qualified recipient of Medical Assistance and a patient in a facility that held such an account for the individual. The payment first would be released to a licensed funeral director for burial expenses of $10,000 or less. The facility can pay what remains, again, to a spouse, any child, a parent, or any sibling. The total amount paid from the account cannot be more than $10,000, though.

A life insurance policy that does not name a living beneficiary (primary or contingent), for example, results in property payable to the estate. Unlike most estate property, these life insurance proceeds are not subject to inheritance tax. They can be paid to the same list of relatives, in the same order, as listed in previous paragraphs. The insurer’s payment cannot exceed $11,000. There is a 60-day period following the death before the payment can be made. In addition, payment cannot be made if there has been written contact from an estate’s personal representative before the funds are released. The adult requesting the payment must submit an affidavit specifying the relationship to the decedent.

Finally, under Section 3101, estate property of a Pennsylvania resident held by the Bureau of Unclaimed Property can be released by Pennsylvania’s Treasurer. Certain conditions have to be met. One condition is that the person making the claim must be one of the following: the surviving spouse, a child of the deceased, one of the individual’s parent, or a sibling. In addition, the unclaimed funds or abandoned property must be no more than $11,000 in value. Finally, there cannot be a personal representative for the decedent or – if there is one – this person must have been appointed at least five years ago. The claimant submits the required documentation to the Treasurer, who determines if the claimant is entitled under the statute to claim the property.

Transfer of Title to a Vehicle

One additional category for transferring estate property without opening an estate or petitioning the court merits mention. Transfers of title to motor vehicles from a decedent can be accomplished without having opening an estate. The Vehicle Code permits title to be transferred from a deceased owner to certain relatives.

For example, when there is no Will, a surviving spouse could assign the title to another person. As long as this person submits the proper documents to the Department of Transportation, she becomes the new owner. In addition to an acceptable proof of death (usually, a death certificate), you need Form MV-39 (“Notification of Assignment/Correction of Vehicle Title upon Death of Owner”) and Form MV-4ST (“Vehicle Sales and Use Tax/Application for Registration”). Although you must submit a sales tax form, no sales tax is assessed. However, you may have to pay inheritance tax.

Other relatives may be involved in this assignment of title, as well. For instance, if the decedent had children over 18 years old and a surviving spouse, all would have to sign the MV-39 form transferring title to whomever they choose. Rather than review all possible fact patterns in which relatives can assign title, the Department of Transportation has a fact sheet on its website that detailing possible transfers after the owner’s death.

The categories of estate property that have been reviewed are examples of transfers of property without letters testamentary or letters of administration being issued. Other possibilities meeting this criterion, such as a small estate petition, involve the entire estate or, at least, all of the personal property of the decedent. They also action through the court. The categories of estate property discussed here do not require action involving the court. I will leave you with one word of caution to keep in mind, though. Since property was transferred from an estate, you still must check on the possibility that you have to pay inheritance tax.

Life Insurance with No Beneficiary

January 1, 2017Alberts Law, Estate Planning, Probate & Estate Administrationalberts, beneficiary, estate planning, life insurance, Probate & Estate Administrationalberts

There are a number of reasons why a person might purchase a life insurance policy on herself. Often, the death benefit is to be used to pay for funeral expenses and other bills that the person still owed when she died. Another person should be named as the beneficiary if the policy purchased for this purpose. This person would be given responsibility for making these payments. However, life does not always go as planned.

When there is a named beneficiary, a life insurance policy is payable without having to go through the administration of an estate. When the company that issued it receives the necessary documentation, the money would be paid to this beneficiary, and, if used as planned, everything goes smoothly. Of course, the best laid plans of a deceased individual may go astray if events prior to her death do not follow the expected plan.

Often, the policy’s beneficiary is a child of the owner of the policy. This generally would mean the odds that the intended person will receive the proceeds. As long as the beneficiary uses the proceeds as the deceased parent requested, the plan will be a success. Then again, the odds may be in favor of this happening, but life does not promise, let alone guarantee, that something won’t go against the odds.

An elderly parent generally will outlive an adult child. When the adult child is the named beneficiary of the older parent’s life insurance policy, there could be a major problem if the child ends up dying first. Other variables of life may wreak havoc on what was expected. This example is based on a situation that occurred and is not all that rare. The other parent already had died. There were two adult sons, although only one was a beneficiary on the policy. He also had three children. When he died before his mother, her straightforward idea began to get complex and unworkable.

The Importance of Contingent Beneficiaries

After the son died, the policy’s contingent beneficiaries would be the crucial parties if the plan is to be implemented. A contingent beneficiary replaces a beneficiary who is unable to perform in this capacity. Sometimes, there is no contingent beneficiary, which will lead to potentially unintended consequences. The first problem is that the benefits remain to be paid. If no one was named to receive them under the new circumstances, the death benefits are paid by default to the decedent’s estate.

Since no Will existed, after the estate was opened and the policy was found by the estate’s personal representative who did then does what the insurer requires to prove that the named beneficiary could receive the death benefits while he (the other son) had the right to collect the asset on the estate’s behalf, the money ultimately would be paid to the parent’s estate. Being that she lived and died in Pennsylvania, the death benefits now must pass according to the intestacy laws of Pennsylvania – this result diverged considerably from what was intended.

Because the proceeds passed through the estate, any distribution and use would be delayed and may not follow the original plan that had seemed so carefully constructed. This could have been avoided, in part, by naming a contingent beneficiary in case the first beneficiary could not receive the death benefits. This was not done when the policy was purchased, and the mother did not update her beneficiaries after the son chosen to get them had died. Either way would have avoided payment to the estate. Also, if either path was taken, the likelihood that the policy’s benefits would be used as planned would have been better than the intestate distribution could promise since the parent had not discussed how the proceeds were to be used with anyone other than the original beneficiary.

Taxation always is concern and often is a reason that people pursue so-called nonprobate methods to distribute property. Life insurance proceeds that are paid to the beneficiary named in the policy have not been subject to Pennsylvania inheritance tax. However, after December 13, 1982, even when a policy’s proceeds are paid to the estate instead of a beneficiary, no inheritance tax is assessed. 72 P.S. § 9111(d). With this not being an issue, the question of what happens to the insurance proceeds that now were part of the estate is the main one in need of an answer.

The life insurance benefits now are another asset of the mother’s estate. The beneficiary designation is of no consequence because the one brother who was named already is dead. Since the mother had no Will at her death, Pennsylvania’s intestacy laws will determine what happens to the benefits after the insurance company has paid them to her estate.

Who Inherits if There is No Beneficiary?

The law is found in Title 20 of the Pennsylvania Consolidated Statutes in Chapter 21, “Intestate Succession.” Sections 2103 and 2104 provide the answers. The first section applies to an estate, such as this one, in which there is no surviving spouse. It provides the order in which property will pass based on the relationship to the person who has died. The mother’s issue are at the top of the list in intestacy so all the insurance proceeds will be distributed to those who meet the definition of issue. The surviving son qualifies here, but you have to look at the next section (“Rules of succession”) to determine his son as well as the shares for anyone else.

“Issue” includes siblings and, when applicable, their descendants. This is applicable in the current case. The brothers would have been in the same degree of consanguinity because they directly descended from the same ancestor – their mother. However, with only one son surviving, the number of equal shares is defined at this level of survivorship since he is the closest surviving relative. Since there were two sons, this means that there will be two equal shares. The surviving son will receive half of the benefits from the life insurance policy now. It is worth noting that this section contains a survivorship clause – anyone who would inherit under Pennsylvania’s laws of intestate succession must outlive the decedent by five days. He did, so this becomes a meaningless footnote here.

There still is the second one-half share of the insurance proceeds to be distributed. The statute dictates that this share passes by representation to the three children of the deceased brother, which gives each an equal share of one third of what their father would have received under the laws of intestacy. In the end, by not naming a contingent beneficiary in the life insurance policy, the mother altered her intended plan to a considerable extent. Instead of one person receiving all of the proceeds from the policy, her estate will distribute half of the benefits to her surviving son and a one-sixth share to each of the surviving children of the deceased son, who was supposed to receive all of the proceeds when the life insurance policy was purchased by the mother.

This situation provides a good lesson regarding any estate planning. When circumstances change, your plan may not represent your intentions. If the resulting change to your estate plan is significant, then you need to revise that plan as soon as you can because you’ll never know when it had to be implemented.

Elder Law and Estate Planning

August 25, 2016Alberts Law, Estate Planning, Topics of Interestalberts law, elder law, estate planning, special needs lawalberts

Elder law and estate planning are not two terms for the same area of law. However, they are related. Estate planning is an important part of the work that an elder law attorney does. At the same time, the attorney generally takes a broader, more holistic approach in an elder law practice.

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ase the National Elder Law Foundation’s definition of elder law, this area of practice involves counseling and representing of older persons and their representatives in matters regarding the legal aspects of health-care and long-term care (LTC) planning. Additionally, the attorney educates clients about and helps them to obtain public benefits. The definition includes discussing the possible need for surrogate decision-making while addressing the issue of legal capacity. The attorney and client also need to talk about the conservation and, ultimately, disposition and administration of estates. After the consideration of tax consequences, the attorney looks at how to implement the client’s decisions about these estate issues.

As the diversity within the definition suggests, the elder law attorney needs good resources in numerous non-legal fields. This may include access to medical professionals, financial advisors, and social workers, for example. The legal goals often cannot be achieved without first addressing non-legal issues. The lawyer needs to deal with them successfully for the overall result to be positive. Often, topics include resolving family conflicts, understanding a client’s illness, and adapting to any consequences of those health problems.

Elder law is a challenging legal area. To help the client, an attorney must focus on aging, disability, and incapacity, as well as the difficulties that a person faces with each problem. Then, the attorney has to assist the client in creating a plan to deal with all of these. They need to work together to plan for health-care issues. Meanwhile, they have to look at long-term care since the client may require this at some point. The attorney must review obstacles to LTC financing and look for ways around these. In addition, barriers to essential assistance and services will exist. To overcome these, the attorney works with the client and family members to find solutions. Due to all of the issues that an individual may face, this practice area involves a powerful need for comprehensive estate planning.

In general, the elderly have a greater sense of urgency to prepare documents that are necessary due to serious illness or death (as with a Last Will and Testament). At the same time, attorneys in elder law often have clients who have special needs caused by disabling diseases. This makes sense because the issues often are similar. Both need to deal with possible incapacity in the relatively future while many younger people in good health may not view these matters as important at the moment. At this point, I will look at the elder law issues that have been raised from the perspective of individuals with special needs since they have to plan for the same types of problems regardless of age.

Special Needs Planning and Multiple Sclerosis

The National Academy of Elder Law Attorneys (NAELA) teamed up with the National Multiple Sclerosis Society and the Stetson University College of Law to prepare a video series for people with MS. This disease tends to strike people between the ages of 20 and 50. In addition, women get MS at a much higher rate than men do. Its progression is not predictable. However, MS often becomes disabling over time because it attacks a person’s central nervous system. This results in the flow of information within the brain, and between the brain and body, being disrupted.

Since the disease’s progression is unpredictable, the individual diagnosed with MS and family members need to look at the complex legal and other issues that may arise. To do this, they should seek the assistance of an attorney with experience in elder law and special needs law.

These videos focus on planning for possible incapacity and accessing LTC benefits. As a result, they can help not only people with special needs, such as those caused by MS, but also the elderly. In addition, anyone interested in an introduction to various estate planning documents can find benefit.

The Video Series on MS – Looking at Legal Issues & Plans

The five videos in this series are:

How Elder & Special Needs Law Attorneys Can Help People Diagnosed with MS (Presented by Craig C. Reaves, CELA, Fellow, CAP)
Legal and Care Planning for Younger People with MS (Presented by Robert Brogan, CELA, CAP)
Coordinating Attendant Care and Available Resources (Presented by Stephen Dale, Esq., LLM)
Family Law and Divorce: When a Partner Has MS (Presented by Patricia E. Kefalas Dudek, Esq., CAP, Fellow)
Property and Health Care Decision-Making Agents: An Overview (Presented by Mary Alice Jackson, Esq., Fellow)

I have placed two of the videos dealing with the types of issues that I mentioned earlier below. They also discuss a number of legal documents that are useful when these issues arise. The presenters review various kinds of trusts and the purposes they serve. Additionally, they talk about medical and financial powers of attorney, which can benefit everyone. A person with MS understands some of these benefits more than the average person. For example, powers of attorney can make a guardianship, which strips a person of at least some civil rights, unnecessary. While a debilitating disease may make the possibility of a guardianship seem more real, anyone can be in an accident that results in incapacity and the need for a substitute decision-maker. Powers of attorney fill the void here.

These two videos also look at other tools for planning for events that can occur during anyone’s life at some point. This includes what commonly is called a Living Will in Pennsylvania. A Living Will permits you to make end-of-life choices while you still are able express your preferences.

This video provides an overview of Property and Health Care Decision-Making Agents:

I also included the video about Legal and Care Planning for Younger People with MS:

NAELA: A Useful Resource for Elder Law & Special Needs Law

All of the videos in this series can be viewed on the NAELA website. In addition, you can find a lot of other useful elder law materials by visiting this website at www.NAELA.org.

This video series highlights some of the benefits provided by attorneys experienced in elder law and special needs law. As the population in Pennsylvania and elsewhere ages, people increasingly will need attorneys who are well versed in elder law and special needs law. An attorney who can help you handle the often overlapping legal, medical, and financial decisions as you plan for an uncertain future can be very helpful. The National Academy of Elder Law Attorneys is a good source for this legal assistance. Remember that estate planning is a major part of elder law so NAELA attorneys can be good resources in this area. They also can provide information about long-term care options and how to access these services. Considering what you may need and want whenever you might become incapacitated is important. Having a documented plan in place to deal with this possibility is essential.

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