New York May Deviate From The New 529 Rules

When the new tax rules were implemented on January 1, 2018, a popular college savings vehicle that goes by the name of a “529 plan” received a boost.  Prior to the new tax rules, 529 plans could only be used to pay for college.  The new tax rules allow account owners to withdraw up to $10,000 per year per child for K – 12 public school, private school, religious school, or homeschooling expenses. These distributions would be considered “qualified” which means distributions are made tax free.

Initially we expected this new benefit to be a huge tax advantage for our clients that have children that attend private school.  They could fully fund a 529 plan up to $10,000 per year, capture a New York State tax deduction for the $10,000 contribution, and then turn around and distribute the $10,000 from the account to make the tuition payment for their kids.

New York May Deviate

States are not required to adhere to the income tax rules set forth by the federal government. In other words, states may choose to adopt the new tax rules set forth by the federal government or they can choose to ignore them.  The new tax laws that went into effect in 2018 will impact states differently.  More specifically, tax payers in states that have both income taxes and high property taxes, like New York and California, may be adversely affected due to the new $10,000 cap on the ability to fully deduct those expenses on their federal tax return.

As of June 30, 2018, New York has yet to provide guidance as to whether or not they will recognize the K -12 distributions from 529 plans as “qualified”.   More than 30 states have already announced that they will adhere to the new federal tax rules.  On the opposite side of that coin, California has announced that they will not adhere to the new 529 tax rules and they will tax distribution made for K – 12 expenses.  Oregon has gone one step further and will not only tax the distributions but they will also recapture state tax deductions taken for distributions made for K – 12 expenses.

Wait & See

If you live in a state like New York that has yet to provide guidance with regard to the new 529 rules, you end up in this wait and see scenario.  There is no way to know which way New York is going to rule on this new federal tax rule.  However, if New York follows the path taken by many of the other states that were adversely affected by the new federal tax rules, they may decide to follow suit and choose to ignore the new 529 tax rules adopted by the federal government.

We also don’t have any guidance as to when NYS will rule on this issue.  They may wait until November or December to issue formal guidance. If that happens, 529 account owners looking to take advantage of the new K – 12 distribution rules will have to be on their toes because distributions from 529 accounts have to happen in the same year that the expense is incurred in order to receive the preferentially tax treatment.

Potential investors of 529 plans may get more favorable tax benefits from 529 plans sponsored by their own state. Consult your tax professional for how 529 tax treatments and account fees would apply to your particular situation. To determine which college saving option is right for you, please consult your tax and accounting advisors. Neither APFS nor its affiliates or financial professionals provide tax, legal or accounting advice. Please carefully consider investment objectives, risks, charges, and expenses before investing. For this and other information about municipal fund securities, please obtain an offering statement and read it carefully before you invest. Investments in 529 college savings plans are neither FDIC insured nor guaranteed and may lose value.

About Michael……...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

The Medicaid Spend Down Process In New York

You are most likely reading this article because you had a family member that had a health event and the doctors have informed you that they are not allowed to go back home to their house and will need some form of health assistance going forward.  This article was written to help you understand from a high level the steps that you may need to take to get them the care that they need and to get a preview of the Medicaid application process and the spend down process, if that’s the path that needs to be taken.

Everyone is living longer which is a good thing but it creates more complications later in life. It is becoming much more common that people have family members that have a health event in their 80’s or 90’s that renders them unable to continue to live independently. Without advance planning, a lot of the important decisions then have to be made by family and friends so it is important for even younger individuals to understand how the process works because you may be in this situation some day for a loved one.

Do I Have To Apply For Medicaid To Pay For Their Care?

What you will find out very quickly is any type of care whether it's home health care, assisted living, or a nursing home, is very expensive. Very few individuals have the assets and the income to enable them to pay out of pocket for their care without going broke. It's not uncommon for kids or family members to have no idea what mom or dad's income and asset picture looks like. But no one is going to provide you with this information unless you have a power of attorney.

Power of Attorney, Health Proxy, and Will

A power of attorney (“POA”) is a document that allows you to step into a person’s shoes that have been incapacitated. It allows you to get information on their bank accounts, investments, insurance policies, and anything else financially. If you do not have a power of attorney, you need to get one quickly.  A lot of financial decisions will most likely need to be made in a very short period of time. You will need to contact an estate attorney to draft the power of attorney. There are some choices that you will have to make when you draft the documents as to what powers the “POA” will have. They can usually be turned around by an attorney in 48 hours if needed.

While you have the estate attorney on the phone, you also will want to make sure that they have a health proxy and a will. The health proxy allows you to make healthy decisions from a family member if they are unable to do so. While it’s difficult to think about, health proxies will typically list out the end of life decisions. For example, a health proxy may state that mom or dad refuses to have a machine breathe for them if they are no longer able to breathe on their own. The questions are tough to answer but it’s very important to have this document in place.

Home Care, Assisted Living, or Nursing Home

Prior to the health event, mom or dad may have been living by themselves at their house. Now the doctor is telling them that because of the damage done by the stroke, that they will not release them from the hospital until other arrangements are made for their care. There are three options to receive care:

• Receiving care in the home via home care by health aids

• Assisted living facility

• Nursing home facility

People that cannot pay for 100% of their care and that do not have a long term care insurance policy, typically have to spend down their personal assets and then apply for Medicaid.  Now that is said, let's jump right into what is protected and not protected as far as income and assets for Medicaid.

Different Rules For Different States

Each state has different eligibility and spends down rules when it comes to Medicaid. For purposes of this article, we will assume that the person needing the care is a resident of New York. If you live in a different state, the process will be similar but the actual amounts and the definition of "protected" assets may be different. It's usually best to work with a Medicaid planner, estate attorney, or local social services office that is located within your state/county to obtain the rules for your family member that needs care.

The Medicaid Rules In New York

There are different limits based on whether the family member needing care is married and their spouse is still alive or if they are single or widowed. In general, if a couple is married and one spouse needs care, more assets and income will be able to be protected and they will be able to qualify for Medicaid because they recognize that income and assets have to be available to support the spouse that does not need the care. But for purposes of this article, we will assume that mom passed away and dad now needs care.

Asset Limit

In 2018, to qualify for Medicaid, an individual is only allowed to keep $15,150 in assets. The next question I get is "what counts toward that number?" It's actually easier to explain what DOES NOT count toward that number. The only assets that do not count toward that threshold are as follows:

• Primary Residence

• 1 Vehicle

• Pre-Tax Retirement Accounts (if older than age 70½) - (However Required Minimum Distribution goes toward care)

• Irrevocable Trust (Funded at least 5 years ago)

• Pre-paid burial expenses

That's it. If dad has $50,000 in his checking account, $20,000 in a Roth IRA, and a RV, the RV will need to be sold and he will need to spend down the Roth IRA and the checking account until the balance reaches $15,150 in order to apply for Medicaid.

Primary Residence

Very important, while the primary residence is a protected asset for purposes of the Medicaid application, Medicaid will place a lien against dad’s estate for the money that they paid on his behalf. Meaning when he passes away, the kids do not automatically get the house. Medicaid will be first in line after the house is sold waiting to get paid. The amount depends on how much Medicaid paid out. If dad lives in a house that is worth $200,000 and Medicaid during his lifetime paid out $120,000 for his care, when the house sells, Medicaid will get $120,000 and the beneficiaries of the estate will only get the remaining $80,000.

When kids hear this they typically get upset because mom and dad worked their whole life to payoff the mortgage and maintain the house and now they are going to lose it to Medicaid. Is there anything that can be done to protect it? If the house was not put into a Medicaid Trust 5 years before needing to qualify for Medicaid then no, there is nothing that can be done. That’s why advanced planning is so important.

If dad worked with an estate attorney to establish a Medicaid trust 5 years ago, the attorney could have changed the ownership of the house to the trust, once dad makes it by 5 years without a health event, it’s no longer a countable asset for Medicaid and Medicaid cannot place a lien against the house. The question I usually ask our clients is “do you want Medicaid to get your house or do you want your kids to have it?” Most people say their kids but if advanced planning was not completed, you lose this options.

No Gifts To Kids

So what if you change the name on the house to the kids? It's considered a "gift". All gifts made within the last five years are a countable assets. It's called the "5 year look back period". When you apply for Medicaid for dad you have to provide them with a ton of information including 5 years of all statements for bank accounts and investment accounts. Also you have to provide them with copies of all checks written over the past 5 years that were in excess of $1,000. Medicaid is making sure that you did not "give" all of dad's assets away last minute so he could qualify for Medicaid and avoid the spend down.

Income Limits

We have talked about assets but what about income? It's not uncommon for a parent to be receiving a pension and/or social security. They are only allowed to keep $842 per month in 2018. The rest of their income will be applied toward their care. This can create some tough decisions if dad has to go to assisted living or a nursing home and the family has to maintain the house and meet his financial needs on $842 per month. Again, Medicaid it trying to recoup as much as it can to pay for dad's care.

Medicaid Pooled Trust

There are ways to protect income above the $842 threshold through the use of a Medicaid Pooled Trust. Unlike the Medical Irrevocable Trust to protect assets that needs to be established 5 years prior, these trusts can be establish now to protect more income. They work like a special checking account that can only be used to pay bills in dad's name. You can never withdraw cash out of the accounts. As long as dad is considered "disabled" by the social security administration or NYS he may qualify to setup this trust. There are not-for-profit entities that administer this income trust. Basically his income from social security and pension would be deposited to this trust account and then when bills show up for utilities, property taxes, car payment, etc, you submit the bill to the organization that is administering the trust and they pay the bill on behalf of that individual.

Home Care Limitation

Most individuals want to return to their home and have the care provided at their house via home health aids.  This may or may not be an option. It all depends on the level of care needed. If Medicaid will be paying for dad's care, you will need to call the social services office in the county that he lives in. They will send an "assessor" to his house to determine if the living conditions are adequate for home care and they will also determine the level of care that is needed. In general, if the estimated cost of home care is expected to be at least 90% of what it would cost for care at a facility, Medicaid will not pay for home care and will require them to go to an assisted living or nursing home facility.Home health aids typically range in price from $15 - $30 per hour. Assume it cost $25 per hour, if dad needs care 8 hours a day, 7 days a week that would cost $6,083 per month. If you need a nurse or registered nurse to administer medication at the home, you are looking at $40+ per hour for those services.

Steps From Start To Finish

We have covered a lot of ground and this is just a general overview. But here is a general list of the steps that need to be taken assuming dad had a health event and you need to apply for Medicaid on his behalf:

• Contact an estate attorney to establish a power of attorney and requirement for Medicaid application

• Using the POA, begin collecting financial information for the Medicaid process

• Contact the county social services office to request an assessment to determine if home care will be an option if it's in question

• If a spend down is required to qualify for Medicaid, work with estate attorney to develop spend down strategy

• If monthly income is above threshold, determine if a Medicaid pooled trust is an option

About Michael.........

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

How Are Trustee Commissions Calculated & Taxed?

If you are the trustee of a trust, in most cases, you are allowed to be paid a commission from the trust assets.  States have different rules with regard to the trustee commission calculation.  This article will assist you in understanding how the commission is calculated, how the payments are taxed, the rules for commissions not taken in past years, and how the trust commissions are split between multiple trustees. 

Trust Document

The trust document usually has a special section that addresses commissions paid to the trustee.  It’s common for the trust document to include language that states that “the trustee shall receive annual commissions in the same manner and at the same rates as prescribed for testamentary trustees under the laws of the State of (Name of State)”.

For New York the formula is as follows:

1.05% of the first $400,000

0.45% of the next $600,000

0.30% of the rest

For example, a trust has $500,000 in assets as of December 31st, the calculation would be as follows:

$400,000 x 1.05% =          $4,200

$100,000 x 0.45% =          $   450

Total Commission:           $4,650

The trustee would be eligible to receive $4,650 from the trustee assets as their commission for the year.

How Are Commissions Taxed?

Commissions paid by the trust to the trustee are reported as income by the trustee on their personal tax return.  The trust deducts the commission paid as an expense.  We frequently receive the question, “does the trust have to issue a 1099-MISC tax form for the commission that was paid to the trustee?”    Many tax professionals take the position that a 1099-MISC is not required to be issued because serving as trustee does not meet the definition of a “trade or business” which is the prerequisite for issuing a 1099-MISC tax form. 

More Than 1 Trustee

What happens where there is more than 1 trustee?  Do the trustees have to split the commission equally?  The answer is “it depends”.   It depends on the size of the trust and the number of trustees.

Again, I’m referencing New York State law her.  The rules will vary for by state.  For trusts with under $100,000 in assets, each trustee gets the full commission.  If a trust has $80,000 in assets and there are 3 trustees, each trustee would receive $840 ($80,000 x 1.05%).

For trusts with assets between $100,000 – $400,000, if there are one or two trustees, each trustee is entitled to a full commission.  If there are 3 or more trustees within this asset range, the single trustee commission is divided equally between the trustees.  I don’t necessary understand the logic behind if there are two trustees the commission is doubled but if there are 3 trustees, a single commission payment is split between the trustees.  But that’s how the law is written.

For trusts with more than $400,000 in assets, if there are 1 – 3 trustees, each trustee is entitled to the full commission amount.  If there are more than 3 trustees, again, the commission is split equally amongst the trustees.

Can You Waive The Commission Payment?

As the trustee, you can voluntarily waive the commission payment.  The money simply remains in the trust.  Why would a trustee do this?  Some trustees just don’t need the income. In some situations, the parents will setup a trust, they have more than one child, but only one of the children serves as trustee.   The child that serves as trustee may decide to waive the commission payment to avoid conflict with their siblings about “taking money from mom and dad’s trust”.

Another reason for waiving the commission payment is the trustee may purposefully want to realize that income at a later date.  Whatever the reason, I just wanted you to know that waiving the commission payment is an option.

Back Payments

We will frequently get the following question:

“I have been the trustee of this trust for the past 10 year but I have never taken a commission.  Am I still entitled to the trustee commissions for past 10 years even though I did not take them?”

The answer is “yes”.  The trustee is still entitled to receive those commissions for past years even though they did not take them in the year that they were due.   The trustee would just need to be able to produce the records necessary to calculation the trustee commission for all of the past years.

In these cases, remember, commission payments to the trustees are taxed at ordinary income tax rates to the trustee. If you decide to “catch-up” on past commissions that are due to you and you receive $30,000 in trustee commissions in a single tax year that could bump you up into a higher tax bracket.  It may make more sense from a tax standpoint to spread those past commission payments over the course of the next few years to reduce the tax hit.

Disclosure: This article is for educational purposes only. For legal advice, please consult an attorney. 

Michael Ruger

About Michael……...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

NY Free Tuition - Facts and Myths

On April 9th New York State became the first state to adopt a free tuition program for public schools.  The program was named the “Excelsior Scholarship” and it will take effect the 2017 – 2018 school year.  It has left people with a lot of unanswered questions

• Do I qualify?

• How much does it cover?

• What’s the catch?

• Can I move my finances around to qualify for the program?

This article was written to help people better understand some of the facts and myths surrounding the NY Free Tuition Program.

Who qualifies for free tuition?

It’s based on the student’s household income and it phases in over a three year period:

• 2017: $100,000

• 2018: $110,000

• 2019: $125,000

MYTH #1: “If I reduce my household income in 2017 to get under the $100,000 threshold, it will help my child qualify for the free tuition program for the 2017 – 2018 school year.”  WRONG.   The income “determination year” is the same determination year that is used for FASFA filing.  FASFA changed the rules in 2016 to look back two years instead of one for purposes of qualifying for financial aid. Those same rules will apply to the NY Free Tuition Program.  So for the 2017 – 2018 school year, the $100,000 free tuition threshold will apply to your income in 2015.

MYTH #2:  “If I make contributions to my retirement plan it will help reduce my household income to qualify for the free tuition program.” WRONG.  Again, the free tuition program will use the same income calculation that is used in the FASFA process so it is not as simple as just looking at the bottom line of your tax return.  For FASFA, any contributions that are made to retirement plans are ADDED back into your income for purposes of determining your income for that “determination year”.    So making big contributions to a retirement plan will not help you qualify for free tuition.

What does it cover?

MYTH #3:  “As long as my income is below the income threshold my kids (or I) will go to college for free.”  DEFINE “FREE”.  The Excelsior Scholarship covers JUST tuition.   It does not cover books, room and board, transportation, or other costs associated with going to college. Annual tuition at a four-year SUNY college is currently $6,470.   Here are the total fees obtained directly from the SUNY.edu website:

Tuition:                       $6,470             Covered

Student Fee:               $1,640             Not Covered

Room & Board:          $12,590           Not Covered

Books & Supplies:      $1,340             Not Covered

Personal Expenses:    $1,560             Not Covered

Transportation:          $1,080             Not Covered

Total Costs                 $24,680

When you do the math for a student living on campus, the “Free” tuition program only covers 26% of the total cost of attending college.

What’s the catch?

There are actually a few:

CATCH #1:  After the student graduates from college they have to LIVE and WORK in NYS for at least the number of years that the free tuition was awarded to the student OTHERWISE the “free tuition” turns into a LOAN that will be required to be paid back.  Example: A student receives the free tuition for four years, works in New York for two years, and then moves to Massachusetts for a new job.  That student will have to pay back two years of the free tuition.

CATCH #2:  The student must maintain a specified GPA or higher otherwise the “free tuition” turns into a LOAN.  However, the GPA threshold has yet to be released.

CATCH #3:  It’s only for FULL TIME students earning at least 30 credit hours every academic year.  This could be a challenge for students that have to work in order to put themselves through college.

CATCH #4:  This is a “Last Dollar Program” meaning that students have to go through the FASFA process and apply for all other types of financial aid and grants that are available before the Free Tuition Program kicks in.

CATCH #5:  The free tuition program is only available for two and four year degrees obtained within that two or four year period of time.  If it take the student five years to obtain their four year bachelor’s degree, only four of the five years is covered under the free tuition program.

Summary

There are many common misunderstandings associated with the NYS Free Tuition Program.  In general, it’s our view that this new program is only going to make college “more affordable”  for a small sliver of students were not previously covered under the traditional FASFA based financial aid.   Given the rising cost of college and the complexity of the financial aid process it has never been more important than it is now for individuals to work with a professional that have an in depth knowledge of the financial aid process and college savings strategies to help better prepare your household for the expenses associated with paying for college. 

About Michael……...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

How Is Child Support & Alimony Calculated In New York?

child support and alimony calculation in New York

For purposes of child support, either parent can be named the custodial parent by a Court.  For the purposes of this article we will assume that the mother is the custodial parent and will be receiving the child support and alimony payments.  However, fathers who have custody can also use this as a guide.

How do I apply for child support?

Usually, you ask for child support in Family Court in the county where you and the child live.   You can also go for child support in the county where the father lives.  You are not required to have a lawyer to apply for child support but it is recommended that you consult with a divorce attorney prior to filing for support.

How is the dollar amount of child support calculated?

The Child Support Standard Act (CSSA) is the law in NYS and tells the amount of child support the father must pay.  The CSSA applies to parental income up to a maximum of $181,000 (2021 limit) and the Court can apply it to income in excess of $148,000 based on certain factors. Examples of these factors are: the financial ability of the father, the lifestyle the child would have enjoyed if the parents stayed living together, and any special needs the child may have. The maximum can be adjusted periodically by the New York State legislature. The amount you get depends on what the father’s income is, what your income is, how many children you have together, and what your children’s basic needs are

The Support Magistrate will look at the information in your financial disclosure affidavit and the father’s financial disclosure affidavit, if he supplies one. The Support Magistrate might also ask you and the father to answer questions. And you and he might be asked to give the Support Magistrate other evidence of your income and expenses, such as a paystub or a W-2 statement.

Both parents’ incomes are used to figure out how much child support the father has to pay because both parents have to support their children.

This is how it is calculated:

Deduct (subtract) these things from each parent’s income:

• spousal maintenance paid to a former husband or wife by court order

• child support paid to other children by court order

• public assistance and supplemental security income (SSI)

• city taxes

• social security and Medicare taxes (FICA)

Combine (add) the incomes of both parents after making those deductions, and multiply the total you get by the correct percentage:

• 17% for one child

• 25% for two children

• 29% for three children

• 31% for four children

• Not less than 35% for five children or more

Divide the figure you get between both parents according to both your incomes (on a “pro rata” basis). This means that if the father earns twice as much as you, he must pay twice as much child support.

The father may also have to pay additional amounts for:

• child care, if you are working or going to school.

• medical care not covered by insurance

• the child’s educational expenses

The parent who has health insurance must also (if reasonable) continue providing health insurance for your children. The cost of providing health insurance will be shared between yourself and the father, in proportion to your respective incomes. If neither of you has health insurance, the court will order the custodial parent (the parent with the greatest amount of custody) to apply for the state’s child health insurance plan.

When do child support payments stop?

Child support payments typically end when the child reaches age 21 or becomes emancipated.  Emancipation means a child is living separately and independently from a parent, or is self –supporting.   Some things that show that a child is emancipated are:

• Child has completed 4 years of college education

• Child has gotten married

• Child is living away from home (except for living at school or college)

• Child has gone into the military

• Child is 17 years old and working full-time (except for summer vacation jobs)

• Child willingly and fro no good reason has ended the relationship with both parents

alimony calc

In New York, alimony is referred to in three different ways: as alimony, spousal support, and maintenance.  “Temporary maintenance” is an order that one spouse must financially support the other while the divorce is being finalized.  Once the divorce is finalized, the temporary maintenance stops and the judge decides whether permanent alimony is appropriate.

How is the amount of alimony payments determined?

Unlike child support payments there really are no set guidelines for the amount and duration of alimony payments.   To decide whether spousal support is appropriate, the judge will look at the needs of the spouse asking for support and whether the other spouse has the financial ability to provide financial help. For example, if your income is lower than your spouse’s but you are able to support yourself, you may not be entitled to alimony. The court will also look at other factors when making a decision about support:

• the length of the marriage

• each spouse’s age and health status

• each spouse’s present and future earning capacity

• the need of one spouse to incur education or training expenses

• whether the spouse seeking maintenance is able to become self-supporting

• whether caring for children inhibited one spouse’s earning capacity

• equitable distribution of marital property, and

• the contributions that one spouse has made as a homemaker in order to help enhance the other spouse’s earning capacity.

The court will also look to see whether the acts of one spouse have inhibited or continue to inhibit the other spouse’s earning capacity or ability to obtain employment. The most common example of this would be domestic violence. If one spouse’s abuse of the other affected that abused spouse’s ability to maintain or to get a job, the court might consider those actions in making its order. Disclosure:  The information listed above is for educational purposes only.  Greenbush Financial Group, LLC does not provide legal advice.  For legal advice, please consult your attorney. 

Michael Ruger

About Michael……...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.