Seiler, PLLC

05/08/2024

We have a team for the 2024 Walk to End Alzheimer’s – Woodlands, TX on Saturday, October 26, 2024 to honor sweet Kimsey Hopkins’ Mom. Join the team (no cost to join) at:

https://act.alz.org/site/TR/Walk2024/TX-HoustonampSoutheastTexas?team_id=879769&pg=team&fr_id=17949

Click on the orange “Join Our Team” button to sign up.

The Event is on Saturday, October 26, 2024 at Town Green Park (2099 Lake Robbins Drive, The Woodlands 77380). They say the event starts at 8:00 a.m. (so early) but the opening ceremonies aren’t until 8:45 a.m. Here are all the details:
https://act.alz.org/site/TR?sid=23932&type=fr_informational&pg=informational&fr_id=17949

It will be a fun morning!

Support Seiler Rapp & Guerra in the fight to end Alzheimer's. Donate today to help them reach their goal.

01/20/2023

Congratulations to Seiler Rapp & Guerra Senior Paralegal, Jennafer Persinger, who is not only an Advanced Certified Paralegal in Estate Planning & Trial Practice but is now a Board Certified Paralegal in Civil Trial Law by the Texas Board of Legal Specialization. She really is a big deal.

10/02/2022

It’s Medicare Open Enrollment Time: Is Your Plan Still Working for You?

Every year Medicare gives beneficiaries a window of opportunity to shop around and determine if their current Medicare plan is still the best one for them. During Medicare's Open Enrollment Period, which runs from October 15 to December 7, beneficiaries can freely enroll in or switch plans.

During this period, you may enroll in a Medicare Part D (prescription drug) plan or, if you currently have a plan, you may change plans. In addition, during the seven-week period you can return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan, enroll in a Medicare Advantage plan, or change Advantage plans.

Beneficiaries can go to www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage.

According to the New York Times, few Medicare beneficiaries take advantage of Open Enrollment, but of those who do, nearly half cut their premiums by at least 5 percent. Even beneficiaries who have been satisfied with their plans in 2021 should review their choices for 2022, as both premiums and plan coverage can fluctuate from year to year. For example:

Are the doctors you use still part of your Medicare Advantage plan’s provider network?
Have any of the prescriptions you take been dropped from your prescription plan’s list of covered drugs (the “formulary”)?
What are your total out-of-pocket costs?
Could you save money with the same coverage by switching to a different plan?
For answers to questions like these, carefully look over the plan's "Annual Notice of Change" letter to you. Prescription drug plans can change their premiums, deductibles, the list of drugs they cover, and their plan rules for covered drugs, exceptions, and appeals. Medicare Advantage plans can change their benefit packages, as well as their provider networks. For more about entering and leaving Medicare Advantage plans, click here.

Remember that fraud perpetrators will inevitably use the Open Enrollment Period to try to gain access to individuals' personal financial information. Medicare beneficiaries should never give their personal information out to anyone making unsolicited phone calls selling Medicare-related products or services or showing up on their doorstep uninvited. If you think you've been a victim of fraud or identity theft, contact Medicare. For more information about Medicare fraud, click here.

Here are more resources for navigating the Open Enrollment Period:

Medicare Plan Finder, which helps you find a plan to match your needs: www.medicare.gov/find-a-plan
Medicare coverage options: www.medicare.gov/medicarecoverageoptions/
The 2022 Medicare & You handbook, which all Medicare beneficiaries should have received. The handbook can also be downloaded online at: medicare.gov/forms-help-resources/medicare-you-handbook/download-medicare-you-in-different-formats
The Medicare Rights Center: www.medicareinteractive.org
Your State Health Insurance Assistance Program, which offers independent counseling: www.shiptacenter.org

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09/12/2022

Online Survey Helps Older Adults Assess Their Financial Vulnerability

All older Americans are vulnerable to financial abuse, but there are certain circumstances that make someone more likely to be scammed. An online survey can help older adults (or their caregivers) assess their risk of being exploited based on how they make financial decisions.

It is hard to ascertain the exact number of people affected by financial exploitation because studies show that elder abuse is underreported. However, one study found that monetary loss from financial elder abuse could be close to $3 billion a year.

Experts have found that there are certain risk factors that can help indicate when someone is more likely to fall prey to a financial scam. Peter Lichtenberg, director of the Institute of Gerontology at Wayne State University, found that older adults’ physical and mental health, along with their family and friend network, help predict their financial vulnerability.

Lichtenberg has created a website (www.olderadultnestegg.com) with resources for professionals, older adults, and family members to assess whether someone is at-risk. He provides trainings for caregivers on how to determine if a loved one is experiencing cognitive decline and how to spot financial mismanagement. The website also includes a financial vulnerability survey that assesses a person’s risk of exploitation by asking 17 targeted questions. At the end of the survey, participants get a low, moderate, or high risk assessment. There are also resources to direct older adults and caregivers on how to get help.

To take the survey and see the resources, click here.

For tips on preventing, detecting, and reporting financial abuse, click here.

Older Adult Nest Egg can help you identify those people who are at-risk and protect older adults from financial exploitation.

09/10/2022

Medicaid's Attempt to Ensure the Healthy Spouse Has Enough Income: The MMMNA

When most of a couple's income is in the name of the spouse who is receiving Medicaid, the spouse remaining in the community may wonder what he or she will live on. Medicaid has created some protections for the community spouse.

Although Medicaid limits the assets that the spouse of a Medicaid applicant can retain, the income of the “community spouse” is not counted in determining the Medicaid applicant’s eligibility. Only income in the applicant’s name is counted. Thus, even if the community spouse is still working and earning, say, $5,000 a month, he or she will not have to contribute to the cost of caring for a spouse in a nursing home if the spouse is covered by Medicaid. In some states, however, if the community spouse’s income exceeds certain levels, he or she does have to make a monetary contribution towards the cost of the institutionalized spouse’s care. The community spouse’s income is not considered in determining eligibility, but there is a subsequent contribution requirement.

But what if most of the couple's income is in the name of the institutionalized spouse and the community spouse's income is not enough to live on? In such cases, the community spouse is entitled to some or all of the monthly income of the institutionalized spouse. How much the community spouse is entitled to depends on what the local Medicaid agency determines to be a minimum income level for the community spouse. This figure, known as the minimum monthly maintenance needs allowance or MMMNA, is calculated for each community spouse according to a complicated formula based on his or her housing costs. The MMMNA may range from a low of $2,177 to a high of $3,435 a month (in 2022). If the community spouse's own income falls below his or her MMMNA, the shortfall is made up from the nursing home spouse's income.

Example: Joe and Sally Smith have a joint income of $2,600 a month, $1,900 of which is in Mr. Smith's name and $700 is in Ms. Smith's name. Mr. Smith enters a nursing home and applies for Medicaid. The Medicaid agency determines that Ms. Smith's MMMNA is $2,200 (based on her housing costs). Since Ms. Smith's own income is only $700 a month, the Medicaid agency allocates $1,500 of Mr. Smith's income to her support. Since Mr. Smith also may keep a $60-a-month personal needs allowance, his obligation to pay the nursing home is only $340 a month ($1,900 - $1,500 - $60 = $340).

In exceptional circumstances, community spouses may seek an increase in their MMMNAs either by appealing to the state Medicaid agency or by obtaining a court order of spousal support. Contact your attorney to find out about these options.

See also "Medicaid's Attempt to Ensure the Healthy Spouse Is Not Impoverished: The CSRA."

Contact your attorney for help applying for Medicaid.

09/09/2022

Don't Just Hope for an Inheritance; Get It in Writing

A Massachusetts case demonstrates the importance of getting any agreements about inheritance in writing. The Massachusetts Appeals Court ruled that rendering services to someone in the hope or expectation that it will result in payment from an estate is not sufficient to entitle an individual to a portion of the estate.

Suzanne M. Cheney performed many services for her stepfather, Anthony R. Turco, expecting to receive a share of his estate. However, to her great disappointment, upon his passing he left her nothing. Ms. Cheney subsequently sued James F. Flood, Jr., who was both her stepfather’s lawyer and administrator of her stepfather’s estate, alleging legal malpractice and that she was entitled to recovery from the estate for the reasonable value of the services she and her family performed for Mr. Turco during the last years of his life.

The trial court judge dismissed the legal malpractice claim because Ms. Cheney and Mr. Flood had no attorney-client relationship. The judge then dismissed the claim that there had been an implied promise of payment for services, called quantum meruit under the law, because Ms. Cheney failed to allege that she performed services for Mr. Turco with the expectation that she would be paid for them.

Ms. Cheney appealed the decision regarding the quantum meruit claim, arguing that while there was no express agreement between her and Mr. Turco that she would provide services to him in exchange for being listed in his will as beneficiary, she had always hoped that he would pay her through his estate. Unfortunately for Ms. Cheney, the court found that this gave her no legal basis for payment without an underlying contract or agreement between the parties. The court ruled that Ms. Cheney’s hope or expectation, even though well founded, is not equivalent to entitling her to reasonable value of services under the legal concept of quantum meruit.

It seems that Ms. Cheney’s mistake was relying on a hope or expectation of receiving an inheritance under her stepfather’s estate and neither discussing it with him nor documenting a contract or agreement between the two.

To download the court's decision, click here.

09/08/2022

Can a Marriage Be Annulled After One Spouse’s Death?

Marriage is supposed to be “until death do us part,” but after one spouse dies, is it possible for a court to declare a marriage invalid (annulled)? It can happen, as a Nebraska widower recently learned, but only in certain circumstances.

Marriage provides benefits to a surviving spouse. When one spouse dies, the surviving spouse is entitled to receive an elective share of the deceased spouse’s estate. The amount of the share depends on state law, but it is usually around 30 percent. A spouse can claim an elective share even if there is a will that leaves the spouse fewer assets. This can lead to conflict between surviving spouses and other heirs.

If a spouse gets married shortly before he or she dies, questions can arise as to the legitimacy of the marriage. Heirs may attempt to invalidate the marriage to prevent the surviving spouse from recovering from the estate. The heirs can challenge a marriage after one spouse has died only if the marriage is considered “void.” A marriage is void if it wasn’t legally entered into in the first place. Examples of void marriages include cases in which:

One or both spouses were legally married to someone else at the time of the marriage
The spouses are too closely related to each other
One or both of the spouses were under the legal age for marriage
One or both spouses were mentally incompetent at the time of the marriage
A recent Nebraska case provides an instance of a marriage that was considered void due to incompetence (Malousek v. Meyer, Neb., No. S-20-470, July 30, 2021). Molly Stacey and Steven Greg Meyer began living together in 2009. In 2015, Ms. Stacey was diagnosed with cancer, which eventually spread and her condition deteriorated. Even though she had declared she never planned to marry Mr. Meyer, a few weeks before she died, they were wed. She also named him a joint owner on two bank accounts, changed the beneficiary designations on her other accounts to name Mr. Meyer and his son, and executed quitclaim deeds on her houses to leave them to Mr. Meyer on her death. At the time she was isolated from her children and incoherent.

After Ms. Stacey died without a will, her children went to court, seeking to have the marriage annulled and the property transactions declared void. The children argued that Mr. Meyer unduly influenced Ms. Stacey and that she lacked the mental capacity to make the transactions due to her illness. The Nebraska Supreme Court ruled that the marriage was void because Ms. Stacey was not mentally competent to enter into it. The court set aside the marriage and the financial transactions.

While void marriages can be set aside after one spouse dies, “voidable” marriages cannot. A voidable marriage is a marriage that can be annulled by one party if both spouses are still alive. Courts will generally not cancel these types of marriages after one spouse dies. Examples of voidable marriages, include cases in which:

One or both spouses were under mental duress
One spouse misrepresented him or herself
One spouse was forced into the marriage
The spouses were intoxicated at the time
One spouse lied about his or her circumstances

09/07/2022

Seiler, PLLC would like to congratulate the firm’s newest partner, Tiffany Guerra. Tiffany has been an asset with the firm for the past 5 years and is head of our Probate and Guardianship Department. She focuses on estate planning, probate and guardianship administration, and fiduciary litigation.

09/07/2022

What Is a Fiduciary and What Are Its Obligations?

When you need someone else to care for money or property on your behalf, that person (or organization) is called a fiduciary. A fiduciary is a person or entity entrusted with the power to act for someone else, and this power comes with the legal obligation to act for the benefit of that other person.

Many types of positions involve being a fiduciary, including that of broker, trustee, agent under a power of attorney, guardian, executor and representative payee. An individual becomes a fiduciary by entering into an agreement to do so or by being appointed by a court or by a legal document.

Being a fiduciary calls for the highest standard of care under the law. For example, a trustee must pay even more attention to the trust investments and disbursements than for his or her own accounts. No matter what their role is or how they are appointed, all fiduciaries owe four special duties to the people for whom they are managing money or resources. A fiduciary’s duties are:

to act only in the interest of the person they are helping;
to manage that person's money or property carefully;
to keep that person's money and property separate from their own; and
to keep good records and report them as required. Any agent appointed by a court or government agency, for example, must report regularly to that court or agency.
Remember, your fiduciary exists to protect you and your interests. If your fiduciary fails to perform any of those four duties or generally mismanages your money or affairs, you can take legal action. The fiduciary will probably be required to compensate you for any loss you suffered because of their mismanagement.

09/05/2022

New Tax Proposals Mean Some Should Review Their Estate Plans

As we have written previously, a number of tax proposals being considered in Congress could significantly affect gifting and estate plans for those with larger estates -- over $3.5 million. If you're in that category, you might want to meet with your estate planner to take advantage of gifting opportunities that are available under the current law.

Under Vermont senator Bernie Sanders’ For the 99.5 Percent Act, the estate tax exemption would be reduced from $11.7 million for individuals and $23.4 million for couples to $3.5 million for individuals and $7 million for couples. Any estate that is valued at under the exemption amount will not pay any federal estate taxes, while those exceeding the exemption threshold would be subject to a progressively increasing tax rate that starts at 45 percent. The Act would also slash the lifetime gift tax exemption from $11.7 million to $1 million, although individuals would still be able to give away $15,000 a year without the gift counting toward the lifetime limit.

Another proposal in the Senate is the Sensible Tax and Equity Promotion (STEP) Act, which would eliminate the step-up in basis that beneficiaries receive when they inherit property. The proposal would require an estate to pay tax on all previously untaxed gains. This means that if an estate includes property that has increased in value, the estate would have to pay taxes on that increase. However, the Act would allow the first $1 million of appreciated assets to pass without taxation. In addition, families that inherit a farm or business would be able to pay the tax in installments over a 15-year period. Any taxes paid under the bill would be deductible from the estate tax.

President Biden has also introduced his tax proposals, which include an increase of the capital gains tax rate to 40 percent. This would apply only to income over $1 million. Biden’s proposal also contains a similar elimination of the step up in basis as the STEP Act. In addition, the proposal targets dynasty trusts. The income that has appreciated in a dynasty trust may be subject to capital gains if it hasn’t been subject to recognition in the past 90 years. There would also be no valuation discounts when calculating capital gains.

It isn’t clear which if any of these proposals will make it all the way through Congress and get signed into law, but with Democrats in control of both houses of Congress and the presidency, some changes are likely. It is difficult to plan given such uncertainty, but the following are some options to talk to your attorney about before any of these proposals become law:

Maximize the use of available exemptions by transferring assets into a trust before the end of the year. There are a number of different types of trusts that might be beneficial, including a spousal lifetime access trust (SLAT). Don’t forget about the generation-skipping transfer tax exemption, which allows you to transfer funds to a trust that benefits grandchildren.
Consider including charities in your estate plan. A charitable remainder trust allows you to provide yourself and your spouse income during your lifetime and leave the remainder to a charity. Profits from the trust are not subject to capital gains taxes and the trust can help reduce your taxable estate.
Include a disclaimer in any trust you may have that would change provisions if there are changes to the tax code. To be effective, the disclaimer has to be carefully crafted.
To avoid paying capital gains taxes on appreciated assets, consider borrowing money and putting it into a trust instead.
Consider giving away a fractional interest in property before the end of the year and any valuation discounts may be eliminated.
Make sure you have enough liquidity in your estate to pay any possible taxes that are due. You can do this using life insurance or through borrowing or increasing access to credit.
Before taking any steps, talk to your attorney about what you can do now to protect your estate from future tax changes.

09/05/2022

You May Be Overestimating Your Social Security Benefits

Studies have found that workers overestimate how much they will receive in Social Security benefits when they retire. Having a good understanding of the realities can help you plan for retirement.

Researchers from the University of Michigan studied the expectations of workers and found great uncertainty about future Social Security benefits as well as a tendency to overestimate the amount they think they will receive. Half of the workers surveyed in the study did not know their benefit amount. The average overestimation of the benefit was $307 a month, more than one-quarter of the average forecasted benefit. The study found that as workers got older, however, they were more likely to understand their benefits and less likely to overestimate benefit amounts.

Nationwide Retirement Institute’s annual Social Security survey similarly found that future retirees over age 50 expect to receive a higher payment than what actual retirees receive. In this survey, respondents were off by nearly $200 a month. And almost 70 percent of Baby Boomers mistakenly believe that if they claim Social Security early, their benefit will go up automatically when they reach full retirement age. Not surprisingly, the Nationwide survey also found that more than half of workers are not confident in their understanding Social Security or how much money they will receive.

Not understanding how much you will get from Social Security could lead to you to save less money for retirement while you are working. Setting aside money in a retirement account early can lead to big dividends later. The University of Michigan study found that spending and saving choices based on incorrect expectations lead to less ability to spend in retirement.

Confusion about benefits could also cause you to start taking benefits before you should. Both the University of Michigan study and the Nationwide survey found that workers have misconceptions about claiming Social Security benefits early. Many people do not understand that if they take Social Security benefits early, it will permanently reduce their benefits.

Individuals who file for Social Security benefits at age 62 – before their full retirement age -- will receive around 72 percent of their full benefit. On the other hand, if you delay taking Social Security benefits beyond your full retirement age your benefit will increase by 8 percent for every year that you delay, in addition to any cost-of-living increases, up to age 70.

For those retiring in 2021 at their full retirement age, the average monthly Social Security benefit is $1,543 for an individual and $2,596 for a couple who both receive benefits, meaning that many will receive less than this amount based on their work and earnings history. The maximum monthly Social Security benefit that an individual can receive in 2021 is $3,895 if they wait until age 70 to collect. And keep in mind that many retirees have their Medicare Part B and Part D premiums deducted from their Social Security checks.

To gain a solid understanding of your expected Social Security benefits, you can create a my Social Security account. The account will give you retirement benefit estimates based on what you are currently earning.

For more information about Social Security, click here.

09/04/2022

Ombudsmen: Front-Line Advocates for Nursing Home Residents

Disagreements with a nursing home can arise regarding any number of topics, including the quality of food, troublesome roommates, lack of privacy, or services not meeting what was promised. Many disputes can be resolved by speaking with a nursing home staff member, supervisor, or moving up the chain of command. But if you can't resolve things within the nursing home, your next step should be to contact the local ombudsman assigned to the nursing home.

An ombudsman is an advocate for residents of nursing homes, board and care homes, and assisted living facilities who is trained to resolve problems. Under the federal Older Americans Act, every state is required to have an ombudsman program that addresses residents' complaints and advocates for improvements in the long-term care system. While ombudsmen do not have direct authority to require action by a facility, they have the responsibility to negotiate on a resident's behalf and to work with other state agencies for effective enforcement.

Every statewide program is usually composed of several regional or local ombudsman programs that operate within an Area Agency on Aging or other community organization. To find the ombudsman nearest you, contact the ombudsman office in your state, which can be found here.

In addition to resolving complaints, ombudsmen may provide information about how to select a nursing home and answer questions about long-term care facilities, help people find the services they need in the community instead of entering a nursing home, and provide education on residents' rights. Most state ombudsman programs publish annual reports about the problems and concerns they address. Many ombudsman programs have limited staff resources. For this reason, most local programs seek volunteers who can be trained to help visit residents, act as advocates, and monitor general facility conditions. To learn more about the ombudsman program, visit the National Long Term Care Ombudsman Resource Center at

National Consumer Voice