BB King heirs to challenge his Will and actions of manager

Associated Press in Las Vegas

Lawyer for daughters and other heirs alleges business manager misappropriated millions, had been untruthful and was unqualified to be executor.

BB King's Will

A lawyer representing a group of BB King’s heirs said on Saturday they would challenge the blues legend’s will and the actions of his longtime business manager-turned-executor of his affairs.

Attorney Larissa Drohobyczer issued a statement early on Saturday, just hours before a private memorial service in Las Vegas.

King was 89 when he died at his home in Las Vegas earlier this month. Fans lined up for a public viewing of his body on Friday. His body will be flown back to Memphis, Tennessee, on Wednesday. A tribute is scheduled that day at WC Handy Park on Beale Street.

A public viewing is scheduled for Friday at the museum that bears his name in Indianola, with a funeral on Saturday at nearby Bell Grove Missionary Baptist church. He will be buried during a private service on the museum grounds.

Drohobyczer’s statement alleged that LaVerne Toney had misappropriated millions of dollars, had been untruthful, had “undue influence” and was unqualified to serve as executor of the estate.

Drohobyczer says she met with five adult King daughters – Patty King, Michelle King, Karen Williams, Barbara King Winfree and Claudette King Robinson – and several other heirs before issuing the statement.

Toney told the Associated Press that she was not going to immediately respond. She said she hoped Saturday’s memorial would be calm, peaceful and respectful.

Hundreds of fans, meanwhile, were expected on Sunday at the 35th annual BB King Homecoming Festival, a free gathering that the legendary bluesman started in his hometown, Indianola.

Performers were scheduled to include a country blues band called the North Mississippi Allstars; a Bentonia, Mississippi, blues guitarist and singer, Jimmy “Duck” Holmes; and a children’s choir based at the BB King Museum and Delta Interpretive Center in Indianola.

King played at the free festival dozens of times. He drew a larger than usual crowd in 2014, which was already billed as the final homecoming performance for the King of the Blues.

While King was alive, organisers were planning this year’s event as a tribute to him. Since his death on 14 May, they have called it a memorial celebration. The festival is held on the grounds of the museum that opened in 2008.

“We certainly will miss his infectious smile and warmth this year, but we have no doubt he would want us to carry on with this tradition,” the museum’s executive director, Dion Brown, said in a statement.

For 5 Reasons to Review Your Will click here.

Learn the difference between a Will & a Trust click here.

To make sure you have an iron clad will, you can reach me here.

Regards,

Brian

The Law Offices of Brian A. Raphan, P.C.

7 Penn Plaza, New York, NY 10001

http://www.RaphanLaw.com

“SERVING THE LEGAL NEEDS OF

CLIENTS FOR OVER 25 YEARS”

Legal DIY Web Sites Are No Match for a Pro, Consumer Reports Concludes

After road testing three leading Web sites that help you create your own will, power of attorney, and other important legal documents, Consumer Reports has concluded that none of the will-writing products is likely to entirely meet your needs unless those needs are extremely simple.

Consumer Reports

The independent non-profit testing agency evaluated three online services: LegalZoom, Nolo, and Rocket Lawyer. Using online worksheets or downloads, researchers created a will, a car bill of sale for a seller, a home lease for a small landlord, and a promissory note. They then asked three law professors — including Gerry W. Beyer of Texas Tech University School of Law, who specializes in estates and trusts — to review in a blind test the processes and resulting documents.

In his evaluation of the will-making programs, Prof. Beyer said that two of them could create good simple wills but he found deficiencies in all three, including features that could lead a user to add clauses that contradict other parts of the will.

Consumer Reports’ verdict?   “Using any of the three services is generally better than drafting the documents yourself without legal training or not having them at all. But unless your needs are simple—say, you want to leave your entire estate to your spouse—none of the will-writing products is likely to entirely meet your needs. And in some cases, the other documents aren’t specific enough or contain language that could lead to ‘an unintended result,’ in [a professor’s] words,”

An article on the study, titled “Legal DIY websites are no match for a pro,” appeared in Consumer Reports.  To read it, click here.

Consumer Reports’ findings accord with ElderLawAnswers’ own evaluation of online estate planning programs. For their White Paper on these programs, click here.

For a FREE DOWNLOAD : GUIDE TO ESTATE PLANNING click here.

State Can Recover From Entire Value of Property in Which Medicaid Recipient Had Life Estate

MEDICAID RECOVERY

The Idaho Supreme Court rules that the state may recover Medicaid benefits from the entire value of a property that a Medicaid recipient transferred to his daughter while retaining a life estate for himself. In re Estate of Peterson (Idaho, No. 40615, Aug. 13, 2014).

Melvin Peterson deeded property to his daughter, retaining a life estate for himself. He then applied for Medicaid benefits. When he died, Mr. Peterson had received a total of $171,386.94 in Medicaid benefits.

The state filed a claim against the estate to recover the Medicaid benefits it paid for Mr. Peterson’s care. Under Idaho law, the state may recover any property that passes outside of probate, including any property that that the Medicaid recipient had a legal interest in that passes to a survivor through a life estate or “other arrangement.” The trial court ruled that the life estate remainder interest, but not the retained life estate, was an estate asset, and the appeals court affirmed. The estate appealed, arguing Mr. Peterson had no interest in the life estate at his death, so it could not be subject to recovery.

The Idaho Supreme Court affirms in part holding that both the life estate and the remainder interest were estate assets subject to Medicaid recovery. The court determines that Mr. Peterson’s life estate interest in the property was transferred to his daughter when he died, and under state law “when assets of a Medicaid recipient are conveyed to a survivor, heir or assign by the termination of a ‘life estate,’ the assets remain part of the recipient’s ‘estate'” for purposes of Medicaid recovery. In addition, the court rules that the remainder interest Mr. Peterson’s daughter received is also part of Mr. Peterson’s estate as an “other arrangement.”

For the full text of this decision, go to: http://www.isc.idaho.gov/opinions/40615.pdf

The above article is an example of why you need to understand the full spectrum of Medicaid Planning options. For more information on how we can help you protect your assets for feel free to call me at 212-268-8200 or email medicaid@RaphanLaw.com

Regards, Brian

www.RaphanLaw.com

New: Visiting Lawyer Services for Elder New Yorkers

Visiting Lawyer Services

Why should the elderly that aren’t as mobile as they used to be, or live in an assisted living facility or are even at home wheelchair bound, not have easy access to the same professional legal care as others? Well, they should. And now they do.

Visiting Lawyer Services (VLS) is now available to New Yorkers that are homebound or unable to travel to a lawyer. With VLS our lawyers come to you. There’s no longer a need to coordinate aides, transfers or transportation as you won’t need it The same practice areas of elder law firm are the same available with VLS.  Most of the services that we handle in our office can be handled at your place. For example; signing of your Will, Living Will, Health Care Proxy, revising a Will, Estate Planning, Medicaid Planning or setting up a Trust. If witnesses are needed for signing documents we also arrange them to be with us as well. Other family members or loved ones may be present as well.

Visiting Lawyer Services

You remain in the comfort of your home, apartment or nursing facility and we’ll bring all the necessary documents. This has been very helpful for elder couples–as is often the case with elders, one spouse may be healthy and agile yet the other quite limited.

‘Not being burdened by travel time or hindered by physical ability also allows seniors to focus better on their legal needs. We’ve taken our hands-on approach, compassion and legal prowess to the next level’

For more information on how our Visiting Lawyer Services can help, feel free to call me at 212-268-8200. – Brian

http://www.VisitingLawyerServices.com

info@raphanlaw.com

Understanding the Differences Between a Will and a Trust

Brian Raphan

Everyone has heard the terms “will” and “trust,” but not everyone knows the differences between the two. Both are useful estate planning devices that serve different purposes, and both can work together to create a complete estate plan.

One main difference between a will and a trust is that a will goes into effect only after you die, while a trust takes effect as soon as you create it. A will is a document that directs who will receive your property at your death and it appoints a legal representative to carry out your wishes. By contrast, a trust can be used to begin distributing property before death, at death or afterwards. A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” A trust usually has two types of beneficiaries — one set that receives income from the trust during their lives and another set that receives whatever is left over after the first set of beneficiaries dies.

A will covers any property that is only in your name when you die. It does not cover property held in joint tenancy or in a trust. A trust, on the other hand, covers only property that has been transferred to the trust. In order for property to be included in a trust, it must be put in the name of the trust.

Another difference between a will and a trust is that a will passes through probate. That means a court oversees the administration of the will and ensures the will is valid and the property gets distributed the way the deceased wanted. A trust passes outside of probate, so a court does not need to oversee the process, which can save time and money. Unlike a will, which becomes part of the public record, a trust can remain private.

Wills and trusts each have their advantages and disadvantages. For example, a will allows you to name a guardian for children and to specify funeral arrangements, while a trust does not. On the other hand, a trust can be used to plan for disability or to provide savings on taxes. As your elder law attorney I can tell you how best to use a will and a trust in your estate plan. Feel free to email me with any questions.

Regards, Brian A. Raphan, Esq.

The Law Offices of Brian A. Raphan, P.C.

7 Penn Plaza, New York, NY 10001

Free Download: 2014 Benefits Guide for Seniors: NYC

NYC Department of Aging, senior citizens, aarp
Free download. NYC Department of Aging resources. Free benefits guide for senior citizens.

 

 

 

 

 

 

 

 

For 2014, this guide from NYY.gov  is a helpful resource for benefits available to senior citizens of New York.

Table of contents include:

Social Security 1

Supplemental Security Income 2

Veterans Benefits 3

New York Prescription Saver Card 3

Public Assistance 4

Medicare 5

Medicare Savings Program 6

Medicare Part D 7

Affordable Care Act 7

Medicaid 8

Food Stamps (Supplemental Nutrition Assistance 9 Program SNAP)

Reduced Fare 10 Senior Citizen Rent Increase Exemption (SCRIE) 11

Senior Citizen Homeowners Exemption (SCHE) 12

Real Property Tax Credit (IT-214) 13

Home Energy Assistance Program (HEAP) 14

Heating Equipment Repair or Replacement 15

Elderly Pharmaceutical Insurance Coverage (EPIC) 15

New York State School Tax Relief Program (STAR) 16 

Regards, Brian

info@raphanlaw.com

 

Some FAQ’s about Health Care Proxys

As an Elder Law attorney  for over 25 years  I have recently been getting more and more questions about Health Care Proxys. Below are some answers as well as a link to a Free Sample Draft so my readers can see what it’s all about:

 Why you need a will
Living Will
 

What is a Health Care Proxy?

A Health Care Proxy is someone you appoint to make health related decisions for you, in the event you can not.

Who decides that I’m not able to make my own healthcare decisions?

Your attending physician will decide whether you lack the capacity to make health care decisions. The decision is made in writing. A second doctor also must be consulted in the case of decisions to withdraw or withhold life-sustaining treatment.  You will be given notice of these decisions if there is any indication that you can understand it. If you object to this decision or to a decision made by your agent, your objection or decision will prevail unless a court determines that you are unable to make health care decisions.

 

What if I recover the ability to make my own healthcare decisions?

Your doctor is required to decide whether you can make your own health care decisions and confirm it in writing each time your doctor plans on acting on your agent’s health care decisions. If you have recovered the ability to make your own decisions, your agent will not be able to make any more decision for your unless you again lose the abilities to make them. 

 

How do I complete a Healthcare Proxy?

In New York State, laws set forth the requirements for completing a health care proxy. You must be at least 18 years old and have the capacity to make your own decisions at the time you complete the proxy.

You must state your name and the name of the person you want to act as your agent, and state that your want the agent to have the authority to make health care decisions for you. You also must sign and date your health care proxy in the presence of two adult witnesses who are not names as your agent and have the witnesses sign the proxy. Please note that there are also special rules for the execution of a proxy by residents of psychiatric facilities.

Please note that you do not need to have a lawyer draft your health care proxy, however, you may wish to consult with a lawyer for advice about a health care proxy.

 

When will my Healthcare Proxy end?

You can create a proxy that lasts for a limited period of time by including in the document the dates you want the proxy to be valid. You can also revoke your proxy if you wish and you are competent to do so.

If you have appointed your husband or wife as your agent, and then you divorce or legally separate, the appointment will be revoked unless you specify that you do not wish to revoke it. You should review your proxy periodically to be sure that it continues to reflect your wishes. 

 

 Where should I keep my Proxy?

It’s best to give a copy of your proxy to your doctor as well as to the agent named in your proxy. If you revoke your proxy, be sure to notify whomever you gave a copy of the proxy. Upon entering a hospital you may give it to an administrator in charge, as your doctor, or attending physician may not be there when you arrive. Also, keep a copy with your other important documents such as a Power of Attorney and Will. All should be reviewed every couple of years.

What if I don’t want a Healthcare Proxy?

You can’t be required to execute a health care proxy as a condition of receiving health care services or insurance. Also, the lack of a health care proxy or other specific instructions does not crate any presumptions regarding your wishes about health care.

If you have any questions feel free to contact me! You can also visit this page on our website and download a FREE SAMPLE DRAFT of a health care proxy.

Regards, Brian

info@RaphanLaw.com

The Law Offices of Brian A. Raphan, P.C.

7 Penn Plaza, New York, NY 10001

Why Not Just Use an Off-the-Shelf Power of Attorney Form?

poaA durable power of attorney is one of the most important estate planning documents you can have. It allows you to appoint someone to act for you (your “agent” or “attorney-in-fact”) if you become incapacitated. Without a POA, your loved ones would not be able to make decisions for you or manage your finances without asking the court to appoint a guardian or conservator, which is an expensive and time-consuming process.

There are many do-it-yourself power of attorney forms available; however, it is a good idea to have an attorney draft the form for you. There are many issues to consider and one size does not fit all.

The agent’s powers

The power of attorney document sets out the agent’s powers. Powers given to an agent typically include buying or selling property, managing a business, paying debts, investing money, engaging in legal proceedings, borrowing money, cashing checks, and collecting debts. They may also include the power to consent to medical treatment. Some powers will not be included unless they are specifically mentioned. This includes the power to make gifts and the power to designate beneficiaries of your insurance policies.

The power to make gifts of your money and property is a particularly important power. If you want to ensure your agent has the authority to do Medicaid planning on your behalf in the event you need to enter a nursing home, then the power of attorney must give the agent the power to modify trusts and make gifts. The wording in a power of attorney can be significant, so it is necessary to consult an attorney.

Springing or immediate

The power of attorney can take affect immediately or it can become effective only once you are disabled, called a “springing” power of attorney. While a springing power seems like a good idea, it can cause delays and extra expense because incapacity will need to be determined. If the power of attorney is springing, it is very important that the method for determining incapacity is clearly spelled out in the document.

Joint agents

While it is possible to name more than one person as your agent, this can lead to confusion. If you do have more than one person named, you need to be clear whether both parties need to act together or whether they can each act independently. It might make more sense and be less confusing to name an alternative agent to act in case the first agent is unable to.

Appointing a guardian

Another use of a power of attorney can be to nominate a guardian in case guardianship proceedings become necessary. Including your preference for a guardian can allow you to have some say over who will be managing your affairs. Usually, the court decides who will be chosen as a guardian, but in most circumstances, the court will abide by your nomination in the durable power of attorney.

Executing the power of attorney

To be valid a power of attorney must be executed properly. Some states may require a signature, others may require the power of attorney to be notarized, and still others may require witnesses. It is important to consult with an estate planning attorney in your state to ensure your power of attorney is executed properly.

Accepting a power of attorney

Even if you do everything exactly right, some banks and other institutions are reluctant to accept a power of attorney. These institutions are afraid of a lawsuit if the power of attorney is no longer valid. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute the forms offered by the institutions with which you have accounts. According to a MarketWatch.com article, you need to be careful that you don’t sign a bank’s document that inadvertently restricts a power of attorney’s ability to deal with other assets, and you should check that any documents you sign with a bank match the original power of attorney.

For more information on the subject, visit this section on our website.

Regards, Brian A. Raphan, PC

How to sell an inherited home:

 Get good advice before putting mom and dad’s house on the market.

Via  Amy Hoak, MarketWatch.

Selling an inherited house isn’t easy.

There’s the emotional aspect of getting a loved one’s home ready for sale — which likely includes clearing out his or her belongings and depersonalizing the rooms. There’s the financial cost of making necessary updates to attract buyers. Sometimes heirs have to deal with costly liens or other hidden problems, and there may be disagreements among siblings about the sale price.

And understandably, sometimes family members drag their feet. Images of growing up in the home with Mom and Dad prevent them from springing into action. They can’t let go.

“Everyone takes their time to deal with the passing of a loved one. And you need to take the appropriate steps to learn the market, educate yourself and have a Realtor and tax attorney who are reliable — you need someone who is going to be empathic and is there to help,” said Leslie Piper, consumer housing specialist for Realtor.com and a San Francisco real-estate agent.

Get some advice

First, learn about the house’s status and verify your ownership, getting the advice of an estate attorney, said David Fairman, a real-estate agent with ERA Solutions Realty in Central Ohio.

“Depending on state law, and other factors, a License To Sell Real Estate may be required from the Probate Court,” said Sally H. Mulhern, an attorney and founder of the law firm of Mulhern & Scott, PLLC, in Portsmouth, N.H., in an email interview. “In addition, there will most likely be a ‘creditor claims’ period, which must pass before assets, including real estate, can be distributed to the heirs.”

Connect with a tax adviser to understand any tax implications of selling the home, Fairman added. Heirs should also check and see if there are any liens on the property.

In fact, in certain situations — including when there are environmental concerns or the mortgage is underwater (meaning the home is worth less than what is still owed by the borrower) — heirs may even choose not to accept the home at all, allowing it to go into foreclosure, said Kelly Zinser, a bankruptcy attorney in California and legal analyst for Avvo.com, a site that rates lawyers and connects them with consumers.

Those who don’t want the property should speak with an attorney about disclaiming it — and promptly, Mulhern said. The process will likely involve filing disclaimer paperwork, she said.

Assess the market

It might be clear that Grandma’s kitchen needs some major upgrading. But before doing any work, contact a real-estate agent to help you understand the local housing market.

“You have to figure out what the other houses on the street are selling for, and get an idea of what the house is worth before improvements are made,” Fairman said.

A real-estate agent can also provide some advice on what changes would be worthwhile to make. From a financial perspective, it’s often best to do the minimum amount of repairs required to secure a buyer — and allow them to get financing. (Federal Housing Administration-backed mortgages, for example, require certain safety, soundness and security requirements for homes.) 

If the home is in very poor shape, it’s sometimes best to market it to an investor, Fairman added. Cash buyers looking for bargains are more likely to purchase a home “as is.”

In areas with a hot rental market, it may make sense to keep the property and rent it out. A local real-estate agent can help people sort through the options.

Prepare for listing

Success in selling the home — and for a desirable price — will often depend on its condition, and cleaning up the yard, painting the home’s interior and other minimal improvements will go a long way, Piper said. Upgrading flooring can also be helpful, as can minor improvements to the kitchen and baths, Fairman said.

Removing your loved one’s belongings will also make the home more appealing to the masses, both the ones who view photos online as well as those who do a walk through, Piper said. See Decluttering tips for boomers.

“Doing the cleanup is essential,” Piper said. It helps people view the home as a blank canvas.

If a home’s major mechanical systems are old, sellers might want to pay for a home warranty instead of replacing them, Fairman said. Buyers typically react positively to that incentive, he said.

Expect an emotional process

The process of selling a relative’s home is likely going to be emotional, from the sorting of the personal belongings to the finalization of the sale at the closing table. Expect that. And surround yourself with professionals who will be empathetic and helpful, Piper said.

Also, it will help to set expectations on what price you’d be willing to accept at the beginning of the process, Fairman said. That way, you can more rationally evaluate buyer offers, minimizing the chance of getting emotional over lower-priced bids. Clearly established expectations are especially important when multiple heirs are selling the home.

I hope you found this article informative!

Regards, Brian

https://twitter.com/NYCElderLawFirm

http://www.RaphanLaw.com

Senate Looks at Doctor-Dropping by Medicare Advantage Plans:

What to do when Medicare Advantage insurers drop large numbers of doctors from their plans?

medicare-pillOn Jan. 22, members of the Senate Special Committee on Aging met in Hartford, Conn., in search of an answer. UnitedHealthcare, the nation’s largest Medicare Advantage insurer, planned to drop its contracts with some 2,250 doctors in the state on Feb. 1, but a court has ordered the terminations delayed while the issue is being litigated.

Raymond H. Welch, a dermatologist in Rhode Island, told the committee that when Medicare Advantage plans can summarily drop providers, it leaves doctors focused on pleasing the insurer instead of advocating for their patients. “It is this perversion of the doctor-patient relationship that I fear the most,” Welch said. “It is said you cannot serve two masters. The master that physicians serve must be their patients, not UnitedHealthcare.”

But attorney Stephanie Kanwit, testifying on behalf of America’s Health Insurance Plans, the industry’s national trade association, countered that insurers need the freedom to drop doctors from their networks.

“As a direct result of the serious funding challenges facing the Medicare Advantage program,” Kanwit told the committee, “the need is greater today than ever before for innovations that deliver increased value to beneficiaries with the increasingly limited resources that are available to support the MA program.” Insurers, she said, are looking at which medical providers are most cost-effective as well as which score best on measures of quality care.

Richard D. Johnson, a retiree who lives in Bridgeport, Conn., said he was disappointed and confused when the doctor he trusted was dropped from his Medicare Advantage plan.

“I just want to see the doctor who has been taking good care of me for three years,” Johnson testified. “ I want to say that I am not just worried about myself. There are lots of other seniors who are affected by this. … When you have health problems, you want to stay with the doctors who know you personally and take excellent care of you.”

Posted on 01/27/2014 by  | Washington Watch | 

Regards,

Brian