Five Estate Planning & Elder Law Resolutions for 2026
By: Anthony J. Enea, Esq.
Every year, millions of Americans resolve to exercise more, eat less, and lose weight. As the proprietors of fitness centers will tell you, at least fifty percent (50%) of new members stop attending by February 15th of the New Year. However, unlike losing weight and exercising more, the following Estate Planning and Elder Law resolutions can easily be accomplished with one or two meetings with an estate and elder law planning attorney, preferably a Certified Elder Law Attorney.
- Execute the following advance directives as soon as possible:
(a) General Durable Power of Attorney (POA) – This document allows you to appoint someone to handle your financial affairs when you are no longer able to do so. You may appoint one or more agents (with successor agents); however, it is generally preferable not to have more than two co-agents. The agent can be granted broad financial authority, including the authority to make gifts to themselves or others, if necessary for Medicaid eligibility or estate tax planning purposes, and if it is in the best interests of the principal.
(b) Health Care Proxy (HCP) – A Health Care Proxy allows you to appoint one (1) person at a time to make health care decisions for you when you are no longer able to do so. It is especially important to discuss your end-of-life wishes with your agent, including whether you want to be kept alive if you are brain dead or comatose with no hope of recovery. Alternate agents can also be named, in the event your primary agent is unavailable to act.
(c) Health Insurance Portability and Accountability Act (HIPAA) Authorization – This form allows you to appoint someone to access your medical records, including records from doctors and hospitals, and, if specifically initialed, psychiatric, drug and alcohol addiction, and HIV/AIDS records. This access is critical when medical treatment decisions must be made or when records need to be transferred between providers.
(d) Living Will – A Living Will is a written statement expressing your desire not to be kept alive by extraordinary measures if you are brain dead and/or comatose with no hope of recovery. It serves as important guidance for your Health Care Proxy.
- Execute a Last Will & Testament
Every adult should have a Last Will & Testament (LWT). Although a LWT only controls assets held in your name alone (i.e., not held jointly, with named beneficiaries, or in a trust), it serves the critical purpose of directing how those assets are distributed and in what percentages or amounts. A LWT also allows you to appoint the executor(s) of your estate and the trustee(s) of any trusts created for beneficiaries, under the LWT.
A common misconception is that a LWT is valid by virtue of you passing away. However, A LWT is not effective unless it is admitted to probate in the Surrogate’s Court in the county where you resided at the time of death.
If you die owning assets in your name alone without a LWT, you will have no control over who inherits those assets. Distribution will instead be governed by New York’s laws of intestate succession and the administrator of your estate will be determined by a statutory hierarchy of individuals entitled to serve, typically, your spouse, children, and other relatives who are considered your next of kin. This can be detrimental, especially when your next of kin are not who you wish to inherit your assets or control your estate. Accordingly, even individuals who have a trust, joint ownership of assets, or beneficiary designations on bank accounts, retirement accounts and/or life insurance policies, should still have a LWT indicating your wishes.
- Execute a Revocable Living Trust (RLT) and transfer all non-IRA / non-retirement assets to the trust
A Revocable Living Trust allows you to retain full control over trust assets and permits you to amend or revoke the trust at any time. It enables the creator(s)/grantor(s) to engage in the same estate tax planning available under a LWT, while avoiding the costs and delays associated with probate, which typically lasts nine (9) to twelve (12) months.
Avoiding probate is a primary benefit of an RLT. Additional advantages may include certain elder law benefits, such as avoidance of Medicaid liens. Assets held in the trust also receive a step-up in cost basis for capital gains tax purposes upon death.
It is important to remember that an RLT provides no benefit unless assets are actually transferred (retitled) into the trust.
- Execute an Irrevocable Medicaid Asset Protection Trust (MAPT) and transfer non-IRA / non-retirement assets to the trust
If you are concerned about the cost of long-term care, whether home care or nursing home care, and the potential depletion of your non-IRA savings, you should strongly consider a MAPT. This type of trust can be used to transfer your home, condominium, cooperative apartment, and/or other non-retirement assets (such as savings accounts and/or brokerage accounts).
Under current New York law, there is no look-back period for home care Medicaid (Community Medicaid); however, a five (5) year look-back period still applies for nursing home Medicaid (Institutional Medicaid) benefits for transfers to a MAPT or other gifts.
For Example, you may transfer your home to the MAPT while retaining the right to reside there and enjoy the tax benefits of home ownership (Star Exemption, Personal Residency Exclusion, etc). After five (5) years, the home will not be subject to Medicaid liens or recovery claims for benefits received.
Once assets, whether real property or financial accounts, are transferred to a MAPT, the principal of the Trust cannot be returned to the creator(s)/grantor(s) or used for their benefit. However, the grantor(s) may receive income generated by the trust assets, if the Trust provides for this right, subject to Medicaid treating such income as available if the Grantor(s) is receiving benefits.
- Execute appropriate beneficiary designations for IRA and retirement assets
IRA and retirement assets (401(k), 403(b), etc.) are generally not transferred to revocable or irrevocable trusts, as doing so typically provides no advantage.
For Medicaid purposes, IRA and qualified retirement accounts are not counted as available resources for eligibility; however, if you are receiving Medicaid, the income generated from these assets will be counted as available income regardless of age. Accordingly, IRA and retirement accounts must be placed in payout status (typically referred to as a Required Minimum Distribution).
Beneficiary designations should always include both primary and contingent beneficiaries to avoid the assets reverting to the estate. Typically, a spouse is named as the primary beneficiary, with children named as contingent beneficiaries. To ensure that the children of a predeceased child inherit that child’s share, the designation should include the words “per stirpes.”
If IRA or retirement assets pass to the decedent’s estate due to the absence of a surviving beneficiary, Medicaid (for benefits paid) and creditors will have claims against those probate or administration assets. The same principles apply to life insurance policies and annuities.
With the guidance of an attorney who concentrates their practice in elder law and estate planning, these resolutions are far easier to accomplish than those involving weight loss and exercise- but I still recommend resolving to do both! I’m actually at the gym as I write this article!
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*Anthony J. Enea is the managing attorney of Enea, Scanlan and Sirignano, LLP of White Plains, and Somers New York. He is a certified elder law attorney that focuses his practice on Wills, Trusts, Estates and Elder Law. Anthony is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association (NYSBA) and is the past Chair of the 50+ Section of the NYSBA. He is a Past President and Founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). Anthony is also a Past President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is fluent in Italian. He can be reached at (914) 948-1500 or at [email protected]
