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Senior Law Day Collaborative

Sometimes you just need to talk to someone who knows.

The Senior Law Day Collaborative provides access to the knowledge and guidance of more than 150 professionals focused on elder law and related topics, i.e., the concerns of older adults, caregivers, and people with disabilities. The Collaborative’s attorneys, financial planners, geriatric care managers, and other specialists deliver free community presentations and brief one-to-one consultations at Collaborative events throughout the year.

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Impact of COVID-19 on Landlord-Tenant Relationships and Mandating COVID-19 Vaccination

by: Rebecca C. Romulus, Esq.

Commercial Evictions

On Dec. 11, 2020, Governor Cuomo issued Executive Order 202.81, which further extended the original stay on commercial eviction proceedings contained within Executive Order 202.28 to January 31, 2021. This Executive Order continued the prohibition of initiating commercial eviction proceedings or enforcing evictions of tenants for nonpayment of rent or the foreclosure of any commercial mortgage for nonpayment. Despite the extension of the stay, landlords are still permitted to commence proceedings to recover their property from the tenant for reasons other than nonpayment, otherwise known as “holdover” proceedings.

Residential Evictions

While the commencement of new residential eviction proceedings was stayed pursuant to continuing Executive Orders since March 20, 2020, any residential eviction proceedings which were commenced prior to March 17, 2020, were permitted to move forward pursuant to the Administrative Order 160/20 of the Chief Administrative Judge of the Courts of New York dated August 13, 2020.

The COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 was signed into law in December of 2020 and placed a moratorium on new residential eviction and foreclosure proceedings until May 1, 2021. Under this Act, tenants and homeowners experiencing coronavirus-related financial difficulties are required to file hardship declarations with their landlord, mortgage lender or other foreclosing party to prevent eviction or foreclosure. Landlords are still permitted to evict tenants who are creating safety or health hazards for other tenants, as well as tenants who fail to submit hardship declarations.

Requiring Vaccines

Private Establishments

To date, there has been no legislation prohibiting privately-owned entities from requiring their patrons to provide proof of COVID-19 vaccination upon entry of the establishment. It is expected that there will be more developments on this as the COVID-19 vaccination is made available to the general public in the months to come.

Employer-Mandated Vaccines

According to guidance issued by the US Equal Employment Opportunity Commission on December 16, 2020, employers have the legal right to mandate their employees to receive the COVID-19 vaccine. This right exists because employers are allowed to set requirements that individuals shall not pose direct threats to the health or safety of individuals in the workplace. Exceptions exist for those employees with disabilities or who have “sincerely held” religious beliefs. In those cases, it is up to the employer to establish that an unvaccinated employee would pose a significant risk of substantial harm to the health or safety of the individual or others in the workplace and attempt to provide that employee with reasonable accommodations. If no such accommodations can be provided, the employer has the right to exclude that employee from the workplace, up to and including termination of employment. The Occupational Safety and Health Administration [OSHA] has not issued guidance on employer-mandated COVID-19 vaccination, yet both the EEOC and OSHA have historically held employer-mandated flu vaccines to be legal. Presently, there is no indication that OSHA will decide differently as to the COVID-19 vaccine.

 

Sources:

  • Senate Bill 9114
  • Executive Order 202.81
  • Administrative Order 160/20
  • National Law Review
  • US Equal Employment Opportunity Commission

Don’t Forget to Fund Your Revocable Trust

Revocable trusts are a very popular and useful estate planning tool. But the trust will be ineffective if you do not actually place your assets in the trust.

Revocable trusts are an effective way to avoid probate and provide for asset management in the event of incapacity. In addition, revocable trusts — sometimes called “living” trusts — are incredibly flexible as you can also put out of state property in the trust and avoid ancillary probate in that state or you can also avoid lengthy ancestry searches if you have only distant heirs as well as have more seamless administration of sub-trusts that may last for decades perhaps for a minor child or surviving spouse.

However, you can’t take advantage of what the trust has to offer if you don’t place your assets into it. If you don’t fund the trust, your assets may have to go through a costly probate proceeding or be distributed to beneficiaries you did not intend. Not funding your trust can undermine your whole estate plan.

To transfer assets to the trust, whether real estate, bank accounts, or investment accounts, you need to retitle the assets in the name of the trust. To place bank and investment accounts into your trust, you need to retitle them as follows: “[your name and co-trustee’s name] as Trustees of [trust name] Revocable Trust created by agreement dated [date].” Depending on the institution, you might be able to change the name on an existing account. Otherwise you will need to open a new account in the name of the trust and then transfer the funds. The financial institution will probably require a copy of the trust, or at least of the first page and the signature page, as well as signatures of all the trustees. As long as you are serving as your own trustee or co-trustee, you can use your Social Security number for the trust. If you are not a trustee, the trust will have to obtain a separate tax identification number and file a separate 1041 tax return each year. You will still be taxed on all of the income and the trust will pay no separate tax.

If you are placing real estate into the trust, you should consult with your attorney to ensure it is done correctly. You should also consult with your attorney before placing life insurance or annuities into a revocable trust. And consult with your attorney before naming the trust as the beneficiary of your IRAs or 401(k) because that could have tax consequence.

Once your trust is fully funded, don’t forget about it. When you acquire new assets, do not forget to add them to the trust. You should review your trust annually to make sure everything is titled properly.

Do You Pay Capital Gains Taxes on Property You Inherit?

When you inherit property, such as a house or stocks, the property is usually worth more than it was when the original owner purchased it. If you were to sell the property, there could be huge capital gains taxes. Fortunately, when you inherit property, the property’s tax basis is “stepped up,” which means the basis would be the current value of the property.

For example, suppose you inherit a house that was purchased years ago for $150,000 and it is now worth $350,000. You will receive a step up from the original cost basis from $150,000 to $350,000. If you sell the property right away, you will not owe any capital gains taxes. If you hold on to the property and sell it for $400,000 in a few years, you will owe capital gains on $50,000 (the difference between the sale value and the stepped-up basis).

On the other hand, if you were given the same property, as opposed to receiving it upon the owner’s death, the tax basis would be $150,000. If you sold the house, you would have to pay capital gains taxes on the difference between $150,000 and the selling price. The only way to avoid the taxes is for you to live in the house for at least two years before selling it. In that case, you can exclude up to $250,000 ($500,000 for a couple) of your capital gains from taxes.

Medicare Premiums to Increase Slightly in 2021

Medicare premiums are set to rise a modest amount next year, but still cut into any Social Security gains. The basic monthly premium will increase $3.90, from $144.60 a month to $148.50.

The Centers for Medicare and Medicaid Services (CMS) announced the premium and other Medicare cost increases on November 6, 2020. The hike could have been much worse due to rising costs during the coronavirus pandemic, but the bipartisan budget bill passed in October capped the increase. While the majority of beneficiaries will pay the added amount, a “hold harmless” rule prevents Medicare recipients’ premiums from increasing more than Social Security benefits, which are going up only 1.3 percent in 2021. This “hold harmless” provision does not apply to Medicare beneficiaries who are enrolled in Medicare but who are not yet receiving Social Security, new Medicare beneficiaries, seniors earning more than $88,000 a year, and “dual eligibles” who get both Medicare and Medicaid benefits.

Meanwhile, the Part B deductible will rise from $198 to $203 in 2021, while the Part A deductible will go up by $76, to $1,484. For beneficiaries receiving skilled care in a nursing home, Medicare’s coinsurance for days 21-100 will increase from $176 to $185.50. Medicare coverage ends after day 100.

Here are all the new Medicare payment figures:
•    Part B premium: $148.50 (was $144.60)
•    Part B deductible: $203 (was $198)
•    Part A deductible: $1,484 (was $1,408)
•    Co-payment for hospital stay days 61-90: $371/day (was $352)
•    Co-payment for hospital stay days 91 and beyond: $742/day (was $704)
•    Skilled nursing facility co-payment, days 21-100: $185.50/day (was $176)

So-called “Medigap” policies can cover some of these costs.

Premiums for higher-income beneficiaries ($88,000 and above) are as follows:

  • Individuals with annual incomes between $88,000 and $111,000 and married couples with annual incomes between $176,000 and $222,000 will pay a monthly premium of $207.90.
  • Individuals with annual incomes between $111,000 and $138,000 and married couples with annual incomes between $222,000 and $276,000 will pay a monthly premium of $297.
  • Individuals with annual incomes between $138,000 and $165,000 and married couples with annual incomes between $276,000 and $330,000 will pay a monthly premium of $386.10.
  • Individuals with annual incomes above $165,000 and less than $500,000 and married couples with annual incomes above $330,000 and less than $750,000 will pay a monthly premium of $475.20.
  • Individuals with annual incomes above $500,000 and married couples with annual incomes above $750,000 will pay a monthly premium of $504.90.

Rates differ for beneficiaries who are married but file a separate tax return from their spouse. Those with incomes greater than $88,000 and less than $412,000 will pay a monthly premium of $475.20. Those with incomes greater than $412,000 will pay a monthly premium of $504.90.

The Social Security Administration uses the income reported two years ago to determine a Part B beneficiary’s premium. So the income reported on a beneficiary’s 2019 tax return is used to determine whether the beneficiary must pay a higher monthly Part B premium in 2021. Income is calculated by taking a beneficiary’s adjusted gross income and adding back in some normally excluded income, such as tax-exempt interest, U.S. savings bond interest used to pay tuition, and certain income from foreign sources. This is called modified adjusted gross income (MAGI). If a beneficiary’s MAGI decreased significantly in the past two years, she may request that information from more recent years be used to calculate the premium. You can also request to reverse a surcharge if your income changes.

Those who enroll in Medicare Advantage plans may have different cost-sharing arrangements. CMS estimates that the Medicare Advantage average monthly premium will decrease by 11 percent in 2021, from an average of $23.63 in 2020 to $21 in 2021.

For Medicare’s press release announcing the new premium, co-payment and deductible amounts, click here.

What to Look for When Choosing a Medicare Advantage Plan

As Medicare premiums rise, a Medicare Advantage plan can seem like an attractive option. But if you are considering switching from Original Medicare to a Medicare Advantage plan, you need to know what to look for.

Medicare Advantage plans are run by private insurers, unlike Original Medicare, which the federal government operates, although the medical providers are private. The government pays Medicare Advantage plans a fixed monthly fee to provide services to each Medicare beneficiary under their care. The plans often look attractive because they offer the same basic coverage as original Medicare plus some additional benefits and services that Original Medicare doesn’t offer.

To compare Advantage plans, go to the Medicare Plan Finder at Medicare.gov. When deciding whether a Medicare Advantage plan is right for you, the following are the main factors to consider:

  • Cost. Since Medicare Advantage plans are offered by private insurers, the cost of the plan varies depending on where you live. While Medicare Advantage plans usually have lower premiums than paying for Original Medicare plus a Medigap plan, they can have higher deductibles and co-pays in certain circumstances, so you need to take those into account when calculating the cost of each plan. Medicare Advantage plans do have a cap on out-of-pocket costs, while Original Medicare does not. Check the annual maximum out-of-pocket costs for the plan. If you have a high level of health costs, a low out-of-pocket maximum may be the best option.
  • Coverage. What coverage does the plan offer? Medicare Advantage plans must cover everything that Original Medicare covers, but some plans offer additional benefits, such as dental, hearing, and vision. Plans may require your doctor to get approval for certain procedures. If the plan administrators disagree with your physician that a procedure is medically necessary, the plan may refuse to pay for it.You will want to find out how the plan is about approving treatments, referring patients to specialists or allowing patients to remain in the hospital if they are not ready to leave. You may want to check with your doctor to find out their experience with the plan and whether the plan frequently overrules the doctor.
  • Doctors. Original Medicare does not have any restrictions on which doctor you use, but Medicare Advantage plans are HMOs and PPOs, meaning that not every doctor accepts the insurance. With an HMO, if you visit a doctor outside of the network, you will likely have to pay out of pocket (except in an emergency). With a PPO, you can usually see any doctor you want, but you will pay less for an in-network doctor. You will want to check if your doctor and hospital are part of the plan’s network. The best way to do this is to call your doctor’s office to confirm.
  • Prescription drugs. Most Medicare Advantage plans include prescription drug coverage, so you should check to make sure the plan covers all the medications you take. You should also check if you need any special authorizations for any of your medications or if there any limits on the amount you can get. Other questions include whether your pharmacy is a preferred provider and whether you can get prescriptions by mail.
  • Quality of care. The Medicare Plan Finder includes a rating system that measures how well the plan manages health screenings and chronic conditions as well as how many customer complaints it receives, among other things. The ratings aren’t perfect, but they can give you an idea of plan’s quality.

How to Fix a Required Minimum Distribution Mistake

The rules around required minimum distributions from retirement accounts are confusing, and it’s easy to slip up. Fortunately, if you do make a mistake, there are steps you can take to fix the error and possibly avoid a stiff penalty.

If you have a tax-deferred retirement plan such as a traditional IRA or 401(k), you are required to begin taking distributions once you reach a certain age, with the withdrawn money taxed at your then-current tax rate. If you were age 70 1/2 before the end of 2019, you had to begin taking required minimum distributions (RMDs) in April of the year after you turned 70. But if you were not yet 70 1/2 by the end of 2019, you can wait to take RMDs until age 72. If you miss a withdrawal or take less than you were required to, you must pay a 50 percent excise tax on the amount that should have been distributed but was not.

It can be easy to miss a distribution or not withdraw the correct amount. If you make a mistake, the first step is to quickly correct the mistake and take the correct distribution. If you missed more than one distribution – either from multiple years or because you withdrew from several different accounts in the same year — it is better to take each distribution separately and for exactly the amount of the shortfall.

The next step is to file IRS form 5329. If you have more than one missed distribution, you can include them on one form as long as they all occurred in the same year. If you missed distributions in multiple years, you need to file a separate form for each year. And married couples who both miss a distribution need to each file their own forms. The form can be tricky, so follow the instructions closely to make sure you correctly fill it out.

In addition to completing form 5329, you should submit a letter, explaining why you missed the distribution and informing the IRS that you have now made the correct distributions. There is no clear definition of what the IRS will consider a reasonable explanation for missing a distribution. If the IRS does not waive the penalty, it will send you a notice.

A Modest Social Security Increase for 2021

The Social Security Administration has announced a 1.3 percent rise in benefits in 2021, an increase even smaller than last year’s.

Cost-of-living increases are tied to the consumer price index, and a modest upturn in inflation rates and gas prices means Social Security recipients will get only a slight boost in 2021. The 1.3 percent increase is similar to last year’s 1.6 percent increase, but much smaller than the 2.8 percent rise in 2019. The average monthly benefit of $1,523 in 2020 will go up by $20 a month to $1,543 a month for an individual beneficiary, or $240 yearly.

The cost-of-living change also affects the maximum amount of earnings subject to the Social Security tax, which will grow from $137,700 to $142,800.

For 2021, the monthly federal Supplemental Security Income (SSI) payment standard will be $794 for an individual and $1,191 for a couple.

Some years a small increase means that additional income will be entirely eaten up by higher Medicare Part B premiums. But this year, that shouldn’t be the case. The standard monthly premium for Medicare Part B enrollees is forecast to rise $8.70 a month to $153.30. However, due to the coronavirus pandemic, under the terms of the short-term spending bill the increase for 2021 will be limited to 25 percent of what it would otherwise have been.

Most beneficiaries will be able to find out their specific cost-of-living adjustment online by logging on to my Social Security in December 2020. While you can still receive your increase notice by mail, you have the option to choose whether to receive your notice online instead of on paper.

For more on the 2021 Social Security benefit levels, click here.

Webinar: Benefits Overview from Westchester County Veterans Service Agency

Wednesday, November 11th
10:00 – 11:00

Register for this FREE webinar for Seniors & their Families: http://bit.ly/WestVeterans

(Dial-in by phone also available; numbers obtained on registration or by calling and leaving a message for Paul at 914.231.3227)

The Westchester County Veterans Service Agency services veterans, dependents and survivors, along with those currently serving, by providing trained and Accredited Veterans Service Officers (VSO), This webinar will review the VSO program, which provides advice on Veterans Federal, State and County benefits and assists those eligible with filing the necessary claims. We will cover pensions, burial benefits, vocational rehabilitation, healthcare, real property tax exemption and several other veterans benefit areas.

Speaker: Charlotte Trotter, Deputy Director of the Westchester County Veterans Service Agency

Limited to first 100 participants

Estate and Elder Care Plan Article by Patricia Bave, Esq.

An article titled “A Plan that Makes a Difference: How To Implement An ‘Effective’ Estate and Elder Care Plan” by Patricia Bave, Esq. was recently featured in Coming of Age Magazine in Westchester. Click here to download the article.

Call Us  (914) 633-7400