Fong Law Group

Highlights of How the Omnibus Bill Will Benefit Older Adults

The Senate and House have cleared the passage of a year-end $1.7 trillion appropriations bill that will benefit older adults on a number of fronts.

The bill, which runs more than 4,000 pages and includes a wide variety of legislation, heads to President Biden next for his signoff.

Here is a breakdown of some of the highlights that relate to supporting older Americans:

Health and Housing

• Opt to age at home – The Money Follows the Person (MFP) Program has been helping older adults age in their own home or a community setting, rather than in nursing homes, since 1972. The newly passed bill extends MFP through September 2027.
   
• Age in place safely – The omnibus bill has also doubled funding for the federal government’s Older Adult Home Modification Program from $15 million to $30 million.
  
  For seniors with limited income, this program covers the cost of simple, low-cost home modifications – such as railings and temporary wheelchair ramps – that help them age in place safely.
   
• Provide for your healthy spouse if you are on Medicaid in a nursing home – Medicaid beneficiaries who must reside in a long-term care facility but have a spouse still living at home will continue to see their healthy spouse protected from poverty.
  
  Known as spousal impoverishment rules, these protections ensure that the healthy spouse receives income while their institutionalized spouse keeps their Medicaid eligibility. These protections, which are adjusted each year, will continue to be in place until September 2027.
   
• Continue to see doctors online – Lawmakers have extended access to telehealth services for Medicare enrollees for another two years.
   
• Find affordable housing with support services – The Housing for the Elderly Program has received a billion-dollar bump in funding as well.
  
  This program seeks to aid seniors with very limited income in securing housing that is within their means while also offering supportive services such as assistance with cooking and cleaning.

Retirement Savings

• Contribute more to retirement – For older workers, the omnibus bill raises what are known as “catch-up” contribution limits for retirement savings. Taxpayers ages 60 to 63 will be allowed to contribute an extra $10,000 to their 401(k) starting in 2025.
   
• Access 401(k) funds for emergencies – If you need to take money out of your 401(k) before reaching age 59½, under certain circumstances you will no longer have to pay the 10 percent penalty fee for withdrawing money early. As of the end of 2023, you will be allowed to withdraw up to $1,000 a year for unforeseen emergencies without incurring a penalty.
   
• Wait longer to withdraw money from your retirement accounts – Previously, you were required to begin withdrawing money from your retirement plan account starting at age 72. This mandatory withdrawal is known as a required minimum distribution (RMD).
  
  As of January 1, 2023, the new bill allows you to hold off until age 73 to take funds from these types of private retirement accounts.

What to Do If Your Medicaid Application Is Denied

If you apply for long-term care assistance through Medicaid and your application is denied, the situation may seem hopeless. The good news is that you can appeal the decision. 

Medicaid is a program for low-income individuals, so it has strict income and asset eligibility requirements. Qualifying for Medicaid requires navigating the complicated application process, which has many potential stumbling blocks. However, a Medicaid denial does not mean you will not eventually qualify for benefits. 

The Medicaid agency may deny a Medicaid application for a number of reasons, including the following: 

• Missing documentation. You need to show proof that you are eligible for benefits, which usually means providing Social Security statements, bank records, property deeds, retirement accounts, and insurance records, among other things. 
• Excess assets. In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in "countable" assets (in most states). 
• Transferred assets. If you transferred assets for less than market value within five years before applying for benefits, you may be subject to a penalty period before you become eligible for benefits. 

The Medicaid agency is required to issue the denial notice with 45 days of the application (or 90 days if you filed for benefits on the basis of a disability). When you get a denial notice, read it carefully. The notice will explain why the application was denied and specify how to file an appeal. 

Before filing a formal appeal, you can try informally asking the agency to reverse the decision. If you made a mistake on the application, this is the easiest and quickest way to proceed. If the caseworker made a mistake, it may be more complicated and require escalation to a supervisor or a formal appeal. 

Appealing a Decision
The denial notice will tell how long you have to file an appeal—the deadline may be as short as 30 days or as long as 90 days after the denial notice. It is important to file the appeal before the deadline. Whether the denial notice requires it or not, you should submit your request for an appeal in writing, so that there is a record of it.

Once your appeal is submitted, the Medicaid agency will set a hearing date. Applicants must attend the hearing or their cases will be dismissed. You have a right to have witnesses testify at the hearing and to question the Medicaid agency’s witnesses. It is a good idea to have an attorney to help you through the appeal process. An attorney can make sure you have all the correct documentation and information to present at the hearing. 

If you win the appeal, your benefits will be retroactive to the date of your eligibility—usually the date of your application. If you lose the appeal, the notice will explain how to appeal the decision. The next step in the appeal process usually involves submitting written arguments. If the next appeal is unsuccessful, then you will have to appeal to court. It is crucial to have the assistance of an attorney for this. 

Reapplying for Benefits
If your application was denied correctly due to excess assets or income, there are steps you can take to spend down your assets or put your income in a trust. Contact an attorney to find out what actions you can take to qualify for benefits. Once you do this, you can then reapply for benefits. Note that when you reapply for benefits, your eligibility date will change to the date of the new application. 

What Documents Are Required for a Medicaid Application?

Medicaid applicants must prove that they have limited income and assets in order to be eligible for long-term care services. Before beginning the application process, it is helpful to understand what information you will be required to provide to prove your eligibility. 

Medicaid is a state-run program, so the rules can vary from state to state, but in general applicants are not eligible for Medicaid benefits if the applicant's income exceeds $2,523 a month (for 2022). Applicants can also have no more than $2,000 in assets in most states.  

States require Medicaid applicants to provide the necessary information to prove that they are eligible for benefits. The burden of proof is on the Medicaid applicant—not on the state. In addition to needing to provide identifying information such as a birth certificate and proof of citizenship, following are some of the documents that you may have to provide to the Medicaid agency when you apply for benefits:

• Proof of income. A copy of any pay stubs, Social Security statements, and/or pension checks; income tax returns for the past five years; and verification of any other sources of income, for example, rental income or dividends. 
• Bank records. Copies of bank statements for the past five years. 
• Property. A copy of the deed to any property owned within the past five years and a copy of the most recent property tax bill. 
• Retirement accounts. Statements for the past five years of retirement accounts. 
• Insurance. Copies of any insurance policies, including health insurance, life insurance, and/or long-term care insurance.
• Car registration. Registration information for any cars owned by you. 
• Burial arrangements. Copies of any prepaid funeral contracts or deeds to burial plots.

The state may use an electronic database to verify some of the information. Intentionally giving false information is a serious offense. 

The state looks back five years to determine whether you transferred assets for less than market value within five years of applying for Medicaid. Applicants who gave away assets may be subject to a period of ineligibility. 

Not all assets will be counted against you for the purposes of Medicaid eligibility. Personal possessions, one vehicle, your principal residence, and prepaid funeral plans are “noncountable” assets. However, the state will likely still request information about these assets. 

After you begin receiving benefits, you are not done. Medicaid reviews your income and assets every year to ensure that you are still eligible. This could involve electronic verification or submitting more documentation. 

The Medicaid application process is complicated, and submitting an application without an attorney's help, particularly if you are applying for nursing home benefits, is not a good idea.  The process generally takes several months as Medicaid keeps asking questions and demanding further documentation for the answers provided. Before applying, contact your attorney. 

疫情下長者是否需要提早退休 （廣東）

疫情下長者是否需要提早退休（國語）

A Final Retirement Account Distribution Must Still Be Made After Death 最後的退休賬戶分配仍必須在去世後進行(中英對照)

Federal law requires that beginning on April 1 of the year after you reach age 70 1/2, you must beginwithdrawing a minimum amount from your non-Roth individual retirement account (IRA) or 401(k) accounts. These withdrawals are called required minimum distributions (RMDs).

But what if you die after age 70 1/2 and before all the account funds have been distributed? In the eyes of the law, death is no excuse not to take RMDs from an IRA or 401(k). Your heirs must take the final RMD before they can take control of the account.  

Congress created the rules governing the minimum distribution of retirement plan funds to encourage saving for retirement and to allow retirement assets to build up tax-free during the plan owner's working years. But lawmakers built in provisions so the money wouldn’t simply keep accumulating tax-free forever. The funds you withdraw are treated as taxable income in the year you take the distribution. If you don’t start taking the RMDs from your retirement accounts and pay taxes on the withdrawals, you will face a 50 percent penalty on what should have been withdrawn but wasn’t.

The rules for inheriting an IRA as a spouse are different than the rules for a non-spouse beneficiary, but regardless of who is inheriting the IRA, the heir must take the RMD for the year the account owner died. The full RMD must be taken by December 31 in the year the account owner died, even if he or she died at the beginning of the year. To take the RMD, beneficiaries must contact the custodian of the account and submit a death certificate. If the account owner died before he or she was required to begin distributions, then the beneficiaries do not need to take an RMD. 

The money from the RMD will go directly to the beneficiary listed on the account, not the estate. That means it will be taxable income for the beneficiary. If there is more than one beneficiary, it will be split evenly. 

To find out the best way to deal with an inherited IRA, contact an elder law attorney. 

聯邦法律規定在您70 歲半之後的一年的4月1日開始，您必須從您的Roth非個人退休賬戶（IRA）或401（k）賬戶中開始提取最低金額。這些提取稱為最低的必須提取額（RMDs）。

但是，如果你在70歲半過世,而過世時帳戶資金還沒被提取, 那怎麼辦？在法律的眼中，死亡不是不從IRA或401（k）中提取RMD的藉口。您的繼承人必須先提取最後的RMD才能控制該帳戶。

國會立例去管理退休計劃資金最低提取的規則，以鼓勵為退休而儲蓄，並允許退休資產在計劃擁有人的工作年間免稅。但立法者建立了條款，所以累積這筆錢不會永遠地免稅。您提取的資金在您進行分配的那一年被視為應稅收入。如果您沒有從退休賬戶中開始使用RMD並對提款付稅，那麼您應該提取而沒有提取的金額將面臨5成的罰款。

作為配偶去繼承IRA的規則與非配偶受益人的規則不同，但無論由誰去繼承IRA，繼承人必須在賬戶擁有人去世的那一年提取RMD。整個RMD必須在帳戶擁有人去世的那一年的12月31日之前提取，即使他是在年初去世。要提取RMD，受益人必須聯繫帳戶的管理人並提交死亡證明。如果帳戶擁有人在他需要提取之前去世，那麼受益人不需要提取RMD。

RMD的資金將直接轉給賬戶上列出的受益人，而不是遺產。即是說這將是受益人的應稅收入。如果有一個以上的受益人，它將被均分。

要找到最佳的處理繼承IRA的方法，請聯繫老人法律師。

Do I Need a Living Trust or a Will? Or Both? 我需要信託還是遺囑？還是兩者都需要？ (中英對照)

“In some states, clients are charged court costs and attorney’s fees, based on the worth of their probate assets. Thus, the cost of the administration of the estate increases, as the value of the probate estate increases.”

This is just one of the reasons people think they want a trust: to ensure that the value of their overall estate will not decrease, because of the cost of probate. The most common way to do that is with a trust, says The Houston Chronicle in the article “Elder Law: Which should I have—A Living trust or a will?”

In some states, probate is not an expensive or overly time-consuming issue. Texas, for example, has what is called an independent administration. Executors handle the tasks involved in settling an estate and distributing assets to beneficiaries. As a result, there’s very little court involvement. However, that’s not the case everywhere.  In California,   the Probate Court closely supervises the entire probate process and no assets can be distributed without the Court’s approval.  Further, in California, probate costs are 5% to 7% of the gross value of the estate.  For instance, if your estate is $1 million, the probate costs can be as high as $50,000.  If you want to avoid probate costs, you should hire an estate planning attorney.  An experienced estate planning attorney can tell you whether a trust is right for your estate.  He or she can also explain the difference between different types of trusts.

The trust most frequently used to avoid probate, is known as a revocable management trust, living trust or an “inter vivos” trust.

Selecting the best type of trust for each situation is different. Here are some advantages of living trusts:

Avoiding probate. The cost of probate alone is not reason enough to use a trust. However, if your assets are in trusts, you may not need to file an inventory listing your assets with the court. That’s not always required in every jurisdiction, but if it is required where you live, a trust can help keep your asset list private, by ensuring that it is only seen by beneficiaries.

Asset management for incapacity. A living trust goes into effect, while you are alive. If you become incapacitated, an alternate trustee can step in to manage assets, pay bills and ensure that finances are taken care of.

Avoiding probate in another state. If you own out-of-state property, your estate may need to be probated in your home state and in the other state. If you have a living trust, out-of-state parcels of land can be deeded into the trust during your lifetime, thus avoiding the need for probate in another state. After your passing, your trustee can handle the out-of-state property in the living trust.

Administrative ease. There are, unfortunately, instances when Power of Attorney can be challenged by financial institutions. The authority of a trustee is more likely to be recognized, by banks, investment companies, etc.

There are some questions about whether it’s better to have a living trust or a will. The most complex part of having a living trust, is the process of funding the trust. It is imperative for the trust to work, that every asset you own is either transferred into the trust or retitled into the name of the trust. If assets are left out or incorrectly funded, then probate will probably be necessary. This can occur, even if only one single asset is left out.

If an asset is controlled by beneficiary designation, then the trust may not need to be named a beneficiary, should you want it to pass directly to one or more beneficiaries.

Funding the trust becomes complicated, when retirement accounts are involved. Consult with an experienced estate planning attorney, if you want to make the trust a designated beneficiary of a retirement account. This is because very specific and complex rules may limit the ability to “stretch” the distributions form the account.

Using a trust instead of a will-based plan is growing in popularity, but it should never be an automatic decision. An estate planning attorney will be able to explain the pros and cons of each strategy and help you and your family decide which is better for you.

Reference: The Houston Chronicle (Feb. 15, 2019) “Elder Law: Which should I have—A Living trust or a will?”

“在某些州，客戶需要按資產的價值去支付法庭費用和律師費。因此，隨著資產增值, 遺囑認證費用亦隨著增加。”

這是人們認為他們需要信託的其中一個原因：確保他們的財產總值不會因為遺囑認證的費用而減少。The Houston Chronicle在“Elder Law: Which should I have—A Living trust or a will?”

一文中說，最常見的方法就是建立信託。

在某些州，遺囑認證並不花費及耗時。例如，德州擁有所謂的獨立的遺產程序。執行人員處理解決遺產和向受益人分配資產。因此，法院很少參與。但不是到處都是這樣。在加州，遺囑認證法院密切監督整個遺囑認證過程，未經法院批准，不得分配任何資產。此外，在加州，遺囑認證費用佔遺產總值的5%至7%。例如，如果您的遺產是100萬美元，那麼遺囑認證費用可高達50,000美元。如果您想避免遺囑認證費用，您應聘請資產規劃律師。經驗豐富的資產規劃律師可以告訴您信託是否適合您。也可以跟您解釋不同類型的信託之間的差異。

最常用於避免遺囑認證的信託稱為生前信託。

因著不同的情況選擇最合適的信託。以下是生前信託的一些好處：

避免遺囑認證。遺囑認證的費用不是使用信託的唯一原因。另一個原來是，如果您把資產放到信託中，您便可能無需向法院提交資產清單。並非每個司法管轄區都要求這樣做，但如果您所在的地方需要，可以通過信託確保只有受益人才看到您的資產清單。

失去能力管理資產。當你還在世的時候，生前信託便生效。如果您失去能力，替代受託人可以介入管理您的資產，支付賬單並確保財務得到妥善處理。

在另一個州避免遺囑認證。如果您在外州擁有財產，您的遺產可能需要在您所居地和其他州認證。如果你有一個生前信託，那麼可以把在外州的地放到信託中，這樣便可避免在另一個州進行遺囑認證。在您去世後，您的受託人可以處理在信託中的於外州的物業。

容易管理。不幸的是，有很多情況下，財務授權書可被一些金融機構質疑。而受託人的權力更有可能被銀行，投資公司等承認。

關於擁有生前信託還是擁有遺囑好一些這問題。擁有生前信託最複雜的部分是把資產注入信託的過程。如果要令信託有效，您擁有的所有資產都要轉移到信託中或是重新命名為信託名下。如果忘了轉移資產或不正確地轉移，則可能需要進行遺囑認證。即使只剩下一個資產，也可能發生這種情況。

如果資產有指定受益人，而您希望把資產直接留給指定受益人，那麼, 信託就不需要成為指定受益人。

當涉及退休賬戶時，為信託注入資金會變得複雜。如果您想將信託作為退休賬戶的指定受益人，請諮詢經驗豐富的資產規劃律師。因為當中涉及複雜的規則。

以信託來取代遺囑的做法越來越受歡迎，但這並不是理所當然的。資產規劃律師將能夠解釋每種策略的利弊，並幫助您和您的家人決定哪種方案更適合您們。

參考: The Houston Chronicle (Feb. 15, 2019) “Elder Law: Which should I have—A Living trust or a will?”

Making an IRA Part of the Estate Plan

“You’re hoping to leave your loved ones a nice legacy and something that can enhance their financial security or help them achieve special goals. Have you considered how your individual retirement account (IRA) fits into your estate plans?”

Most people use their IRAs (Individual Retirement Accounts) for retirement income. However, a lucky group find themselves not needing the money from their IRA accounts. Instead, the assets become part of a legacy that they leave to heirs. That is why most IRA accounts include the name of a beneficiary who could inherit these accounts, when the owner passes away, reports the Oakdale Leader in the article “Leaving An IRA As An Inheritance.”

If no beneficiary is named, things can get complicated for both the estate and the heirs. If the IRA has a named beneficiary, but the will names someone else to receive the IRA, the beneficiary named in the IRA is the one who receives the asset. The named beneficiary in any account and especially an IRA, supersedes the will, in almost every instance.

Anytime there is a significant event, often called a “trigger” event, like a divorce, marriage or birth, the estate plan and all accounts with named beneficiaries should be reviewed. This is to ensure that the assets go where the owner wants them, and not to an unintended heir, like an ex-spouse.

There are special rules for spouses, where IRAs are concerned. Married couples typically name each other as beneficiaries on their IRAs. A surviving spouse has certain decisions to make, when inheriting an IRA. The IRA may be rolled over into a new or existing IRA in the spouse’s own name. Taking this route depends upon the age of the spouse and the need for the money.

Another option is to convert the inherited traditional IRA into a Roth IRA. However, taxes must be paid on the conversion. It is also possible to transfer the IRA assets into an inherited IRA. An estate planning attorney will be able to explain all the options and how they will work with the surviving spouse’s estate plan.

To maximize the growth of the IRA, children or grandchildren can be named as IRA beneficiaries. They will need to start taking annual Required Minimum Distributions (RMDs) immediately, and the distributions will be taxable. However, the amount of the RMD will be based on their anticipated lifetimes, so the taxable distributions will be relatively small. The money in the account will have many years to grow.

When children or grandchildren are named as contingent beneficiaries, a surviving spouse has the option to disclaim the IRA, which allows the children or grandchildren to inherit the IRA and enjoy the tax-free years of growth.

Many advisors counsel against naming an estate as a beneficiary, because it helps avoid probate and strict distribution time limits.

Reference: Oakdale Leader (February 19, 2019) “Leaving An IRA As An Inheritance”

Empty Nest? Time to Focus on the Nest Egg

“Each child reduces the household wealth of Americans between the ages of 30 and 59 by about 3% or 4%, according to data from the Center for Retirement Research at Boston College.”

After decades devoted to rearing children, it happens: parents realize that they’ve neglected their own retirement savings. Once the nest empties out, says USA Today, it’s time to refocus on building up savings accounts. How do you do it? The answers are in the article “5 ways empty nesters can boost their savings and turbocharge their 401(k)s.”

Here’s a five-step plan for making this happen.

Up the savings side. Once you’re not spending cash on your kids for clothes, college funds, cars and car insurance, that cash can move into retirement savings. The maximum for a 401(k) in 2019 is $19,000, and if you are over age 50, you can add $6,000 as a “catch-up” contribution. For annual IRA contributions, the limit is $5,000 with a catch-up of $1,000. Increase your paycheck deductions to the percentage, that will get you to the IRS limits. Put savings first.

If there’s a match, don’t miss it. Lucky enough to work for a company that matches all or part of your retirement savings? Do whatever you can to take full advantage of that free money. The most common company match is 50 cents per dollar on 6% of pay, according to Vanguard Group, which says that 70% of 401(k) plans had this match in place in 2017. Let’s say you earn $75,000 and save 6% of your pay. The company would give you $2,250, which means you’d be boosting your savings to $6,750.

Max out savings. The more money that is saved, the faster the nest egg grows. A married couple that socks away a combined $50,000 in pretax dollars every year in their 401(k)s, can find themselves with an additional $250,000 in five years. That’s not counting company matches or any investment growth.

Catch-up as fast as you can. Over 50? The IRS promotes savings by allowing catch-up contributions. An additional $6,000 is allowed in a 401(k). Parents who were paying for summer sleep away camp or riding lessons, can move those dollars into their own retirement accounts.

Control spending. The natural inclination when cash flow loosens up, is to spend more. Many people decide to live it up during these years, feeling like they deserve to enjoy themselves after dedicating so many years to their children. There’s a balance that needs to be found between enjoying and over-spending. Most families increase their retirement savings when the children are gone, but not by enough. Ramping up spending, instead of saving, means years of missed opportunities to build your retirement accounts.

The best advice is to take the long view. Savings instead of putting a convertible in the garage or taking lavish vacations, when a more modest approach is equally enjoyable, could change the nature of your retirement.

Reference: USA Today (Jan. 14, 2019) “5 ways empty nesters can boost their savings and turbocharge their 401(k)s”

Yes, You Have to Pay Taxes on Retirement Account Withdrawals—and On Time

“I had never worked with a financial advisor, so I didn’t really understand that there would be a specific age that would come along, regardless of whether or not I was working, and bang, I would have to withdraw this money, whether or not I needed it,” he says.

Once you celebrate your 70^th birthday, you may start seeing a lot of notices in the mail from financial institutions about taking withdrawals from IRAs and other kinds of retirement accounts. Those letters are going to arrive, even if you are still working and have no plans to retire, says Money, in an article titled “Don’t Miss This Key Tax Deadline.”

The problem is, the IRS doesn’t care whether you are working or want to start taking withdrawals. It also does not care if you want that money to keep growing tax free. The agreement you made back when you started putting money into those accounts, was that you could contribute pre-tax dollars and deferred paying income tax on that money and any earnings. However, once you turn 70½, Uncle Sam wants his share.

Starting the year that you turn 70½, Required Minimum Distributions or RMDs begin, and you must pay ordinary income taxes on it. The penalty is expensive: you’ll have to pay the IRS half of what you should have withdrawn, so you don’t want to miss this deadline.

A recent survey from Nationwide showed that only 13% of people who are 65 and still working, were able to identify when they will need to start taking RMDs. The RMD is a percentage of your total assets, based on your age and life expectancy. Let’s look at these two general examples: say you are 70½ this year, and you have $200,000 in assets–your RMD is $7,300. If you are 76 and have the same asset value, then you owe the IRS $9,100. Your tax liability for RMDs should be calculated with the help of your estate planning attorney and your accountant.

How you take these distributions could have a big impact on your tax bill. For many people, the RMD bumps them into a higher tax bracket, when they are combined with other retirement income sources. Another question to address is: how will the distribution impact your Social Security benefit?

By the time you start getting those notices in the mail, you should have an idea of what your retirement income will be and how to make the RMDs work within your budget. What is the biggest problem that people run into? They don’t know about these required distributions, or their tax liability, and are suddenly faced with a penalty on top of a tax bill. It’s not a happy surprise.

Roth accounts offer considerable flexibility, since the money you withdraw is post-tax. They are not subject to RMD rules, while the owner is living. RMD rules for Roth 401(k) accounts do apply.

The only way to completely avoid RMD taxes, is to donate the RMD to a qualifying non-profit institution. This is a way to avoid taking the RMD, if you don’t need the income. You will avoid paying any taxes on it. There is a $100,000 annual limit on this generous strategy.

Another strategy if you don’t need the proceeds from the RMD: use the money to open a 529 college fund for a child or grandchild and fund that account. You’ll still have to pay taxes on the RMD, but the college savings account will grow tax free.

The more you can control your RMDs, which means advance planning, the better. This is something that should be integrated with your entire estate plan, which has (or should have) a tax planning component.

Reference: Money (January/February 2019) “Don’t Miss This Key Tax Deadline”