Linda Ershow-Levenberg, Esq.

About Linda Ershow-Levenberg, Esq.

Linda is the managing partner at Fink Rosner Ershow-Levenberg, LLC. She takes care of the legal problems of the elderly and of people young and old who have disabilities, by protecting access to government benefits and planning for life-long care with whatever tools may be needed. Linda has been certified in Elder Law (C.E.L.A.) by the National Elder Law Foundation since 1999, is the past chairman of the New Jersey State Bar Association Elder & Disability Law Section, and New Jersey Elder Law. Find out more about Linda Ershow-Levenberg

NJ law streamlines process for fiduciary resignation

A person who has been appointed as administrator of an estate or Executor under a Last Will and Testament is appointed to their role by either the Surrogate’s Court or Surrogate’s office. I’ve previously blogged about the steps to take if a fiduciary wants to quit the job. Previously, it was necessary to file a formal Complaint in Superior Court on notice to the beneficiaries. Amendments to the statute passed by the Legislature in New Jersey would enable a fiduciary who was appointed by the Surrogate to file this process through an application for resignation at the Surrogate’s Court which appointed him/her.PL 2017, Ch. 208 Download: New_Jersey-2016-A1955-Amended.html If s/he was appointed by the Court, a Complaint will still be required. The amendments deal with executors under a Will, administrators of estates, and trustees.

The law specifies the requirements for such a filing:

N.J.S.A. 3B:14-19 (a)… (1) a written statement of intent to resign, (2) a copy of the governing instrument which expressly authorizes resignation of the fiduciary, (3) proof of compliance with the terms, if any, set forth in the governing instrument, and (4) proof that the resigning fiduciary has served written notice of intent to resign on all co-fiduciaries and all parties to the estate or trust at least 20 days prior to filing with the court.”

In section (b), discharge must be granted as long as requirements are met: “A court in receipt of a request for discharge that meets the requirements established pursuant to subsection a. of this section shall discharge the fiduciary if: (1) no opposition has been filed, (2) the discharge will not be prejudicial to the estate or persons interested therein, and (3) either the estate or trust administration is concluded, there is a co-fiduciary with authority to continue with the administration, or there is a successor fiduciary appointed simultaneously with the discharge who is acceptable to the court.

Bear in mind that being discharged from the duties does not relieve the fiduciary from accountability.

The law takes effect 60 days after enactment, which will be October 7, 2017.

Contact us for advice on administering estates and trusts ….. 732-382-6070



Navigating the Coordination of Medicaid benefits with other benefits

Generally speaking, the Medicaid program is the payor of last resort. If an individual is eligible for Medicare as his or her primary health insurance, Medicare would be the primary payor for medical needs, and Medicaid would become the secondary payor for any remainder. If an individual maintains a “medi-gap” insurance policy, that policy would be secondary and Medicaid would be in third place. When it comes to paying for long-term nursing home care (or assisted living or home care), Medicare and most Medi-gap policies do not pay for it, so Medicaid becomes the primary payor. If an individual has a long-term care insurance policy, Medicaid would generally pay the remainder of cost, at the Medicaid rate, after the benefit provided by the LTC policy.

Interested in digging deeper into this coordination of benefits? The Centers for Medicaid and Medicare Services has published an excellent, user friendly guidebook. Enjoy!

Call us about asset protection planning, Medicaid eligibility and Fair hearings for denials of Medicaid benefits … 732-382-6070



Please! Set up that QIT before filing the Medicaid application!

“What on earth is a QIT?” Under the New Jersey Medicaid program, there are some extra hoops to jump through when the applicant’s gross monthly income from all sources exceeds $2,205.00. This number is colloquially referred to as the “income cap,” and up until late 2014, it created a hard barrier to eligibility for home and community-based Medicaid services for higher-income applicants, and it placed recipients into the “Medically Needy” nursing home Medicaid program. The general rule with Medicaid is that the applicant must turn over all of their income to the nursing home except for specific authorized deductions, such as a Personal Needs Allowance (recently raised to $50/month), health insurance premiums and support of the community spouse. Simple enough. For the higher-income individuals, however, they must funnel the income through a Qualified Income Trust or QIT.

I’ve written about this process before. The QIT is an irrevocable income trust for sole benefit of the Medicaid applicant, and the State is the first remainder beneficiary at death of the Medicaid recipient. The State published a template as well as an instruction sheet for the helpful family member and the bank, to help everyone understand how to set it up. So what’s the problem? The problem is that when a Medicaid application is filed at the County Board of Social Services, the applicant’s family member/ representative  might be told “don’t forget, you have to set up a QIT.” They may be given the State’s forms. They may not be told that it must be done immediately. What they aren’t given is step-by-step instructions on just what this “thing” is, how it has to be administered, and what the Trustee’s responsibilities are from month to month. It can be very difficult for the family member to reach the caseworker for follow-up. Despite the fact that state Medicaid regulations specifically require the local agencies to assist the applicants to secure eligibility, little help is provided on the QIT process. If that weren’t enough, some banks just don’t understand the process. In one of my recent cases, the branch manager of a major bank insisted that this trust could only be established through the corporate office — totally wrong advice. Sometimes, the family member just throws up their hands and walks away from it.

The big problem is that even if the individual is financially eligible to receive Medicaid benefits for his or her nursing home care, failure to set up the QIT will result in denial of Medicaid eligibility. This will have disastrous results for their spouse, who may be on the hook for tens of thousands of dollars in nursing home bills.

The QIT must be established no later than the month prior to the first day of the first month in which you want Medicaid eligibility for nursing home services. Then as soon as the income arrives, it can be funneled through the Trust and allocated as required.

Call for advice on establishing QITs and all other nursing home Medicaid issues … 732-382-6070

Estate Recovery and Medicaid Liens

“If I go into a nursing home, will the State take my house?” This is a commonly-asked question. The answer is “No, but …” If a person applies for long-term care Medicaid benefits, his available assets have to be below a certain level. The house he owns generally has to be listed for sale (called a “Plan of Liquidation”), but this requirement is waived (or deferred) if there is an immediate family member residing there, such as a spouse or child or sibling. In New Jersey, the State does not place a lien against the property during the Medicaid recipient’s lifetime. Some other States do so; these are referred to as “TEFRA Liens.”  (Social Security Act 42 USC § 1917(a)(1)-(2)). So, if the property is on the market and then is sold, the individual would then lose eligibility for Medicaid benefits until the proceeds of sale have been “spent down.” If the individual dies and still owns the house, the house will be in his/her estate, and federal law requires States to seek recovery from the Estate of the deceased Medicaid beneficiary, for the value of correctly-paid Medicaid services provided after age 55.

Under some circumstances, the State must defer recovery until a later date. The 2016 CMS Coordination of Benefits Handbook in Chapter III.B. provides a succinct explanation of estate recovery starting at page 53.

Under federal law, the State Medicaid Agency  (SMA) may only make recoveries from the beneficiary’s estate under the following circumstances:  (a) After the death of the surviving spouse (regardless of where the spouse lives);  (b) When the deceased beneficiary’s children have all reached age 21; (c) after the death of a child of the beneficiary who is blind or disabled, regardless of where the child lives. The State cannot even record a lien against the property while there is still a surviving spouse, child under 21 or blind or disabled child.  In addition, New Jersey has a policy that if another family member was residing in the premises at the time of the death of the institutionalized Medicaid recipient, and continues to reside there, the State will record its lien but will not enforce it until the person moves out or the property is sold. See attached: The_NJ_Medicaid_Program_and_Estate_Recovery_What_You_Should_Know

Very often, transferring ownership of real estate is an important component of nursing home care planning, but there are also circumstances where it just cannot be done, or is not done, before the Medicaid recipient dies. The estate administrator or executor then needs to be aware of the ramifications of the Medicaid lien against the estate’s assets so that the estate administration can be correctly managed.

Call us about Medicaid eligibility planning and estate administration ….. 732-382-6070

Estate plan can include designation of funeral arranger

There can be times that a dispute will break out among the members of a deceased person’s family on the subject of where and how to dispose of the body. Burial or cremation? This cemetery or that cemetery? Next to the first spouse (parent of the children) or next to the most recent spouse? And so on. New Jersey has a statute that actually deals quite directly with that problem. It’s called the ___ and can be found at N.J.S.A. 45:27-22. 

A person who is setting up their estate plan can put a provision into their Last Will and Testament which designates the person who is to be in charge of the arrangements. This doesn’t have to be the Executor. The agent’s authority under a Power of Attorney, of course, expires at death of the principal person, so s/he doesn’t automatically have priority for this role. The old concept of “getting your affairs in order” might include designating the person who will have control over these arrangements.

Although a Will isn’t probated until ten days after a death, a provision concerning the funeral will be given effect before that.  If no person has been appointed by the testator to control the funeral arrangements, the statute sets forth a hierarchy of individuals. First is the spouse (with some exceptions); then the majority of the adult children; then the surviving parent(s); then a majority of the surviving brothers & sisters; then other next of kin; then any other person.

When seniors are planning for their care and their estates, they do sometimes write “funeral instructions” as a separate document which is kept with the estate planning documents and Will. That document might name the person to be in control of the process. Since the statute only deals with provisions within a Last Will and Testament, if there is a dispute, a case would likely have to be filed with the probate judge, who would need to rule on whether the document controlled or the statutory hierarchy was applicable.

Call us for customized and thorough estate planning advice … 732-382-6070