Estate Planning Attorney – The Issues

Upon first contacting the estate attorney’s office it is suggested you make an inquiry as to whether there will be a free consultation or there will be a charge for the first office consultation. The purpose of the first estate planning meeting will be to obtain information and guidance with regard to your family’s situation. It is helpful if a specific plan can be outlined to deal with you and your family’s financial and legal issues.

Wills and Trusts

You may decide after your initial consultation you need a variety of estate planning documents. You should be aware of tax laws and other laws concerning estate matters periodically change and you should follow up with your attorney every few years to make sure your estate planning documents are accurate and up-to-date. Make sure the law firm you retain is in business for a considerable period of time and will be available in the future to help you and your family with your pressing legal needs.

Estate and Retirement Planning

As you move closer to retirement you should have your attorney review retirement related documents you are presented with that relate to financial issues. You should have discussions with your attorney with regard to seeing to it your assets are properly passed to your children or other loved ones. Different techniques can be used to avoid taxation of your assets when they pass from one generation to the next.

Conclusion

If you have accumulated assets during your lifetime you should be careful to see to it that they will be properly received by your heirs and loved ones in a simple non-complicated manner that does not place a burden on your family members after your death.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys representing clients throughout the Metropolitan New York area.

Surviving Spouse’s Right of Election

Scales of justice

New York has a special statute which protects spouses from being disinherited. The name of this statute is called “The Right of Election”. Under this statute a spouse is entitled to a minimum “elective share” of the assets of his or her spouse. If a spouse is disinherited in a will or trust and or the spouse receives less of the decedent’s estate than he or she is entitled to, they can ask for their “elective share” under the right of election.

Elective share in New York

The right of election allows a spouse to challenge what she receives in a will. The right of election entitles the spouse to receive the greater of 50,000.00 or 1/3rd of the estate. In New York this only applies to individuals who are legally married. New York does not accept the existence of a common law marriage for estate purposes.

The request for an elective share includes both assets in the parties names and “testamentary substitutes”. Testamentary substitutes can be bank accounts, real estate and other types of assets that are designed to prevent the spouse from receiving his or her just share in an estate.

Exercising the Spousal Right of Election

When a spouse does not receive the value of $50,000.00 or one third of the estate, he or she can take action to file for their right of election against the estate. This right of election is exercised by the surviving spouse who has either been disinherited or has not inherited as much as he or she would receive in the elective share. An individual who seeks to exercise his or her elective share must take this action within six months after an executor or an administrator has been appointed to handle the estate. The six month period acts as a statute of limitations. Failure to take the appropriate action to claim one’s elective share during the six month period will bar them from claiming the elective share in the future.

The exercising of one’s rights to an elective share is not something that an individual should do on his or her own. Should you feel you have not received an adequate amount of inheritance from your spouse you should contact an estates attorney and meet with him or her to discuss your options and how to protect your interests.

NY Attorney Elliot Schlissel

Elliot S. Schlissel is an estates lawyer representing individuals in estate planning matters, will contests, accounting proceedings and all other estate related litigation issues throughout the metropolitan New York area.

Accounting’s in Estates

A calculator and document

The executor in a will or the administrator, in an intestate proceeding, has to fiduciary responsibilities. These responsibilities involve fairly and accurately handling all financial matters regarding the estate. In situations where a beneficiary of the estate has questions concerning the accumulation of assets and the distribution of the assets of the estate, they can bring an accounting proceeding.

Documentation in Accounting Proceedings

When an accounting proceeding is brought the executor must provide a detailed breakdown of all assets received by the estate. In addition, the executor and/or administrator must provide documentation of all income received by the estate. This can include a return on an investment and or losses on investments. In addition all estate expenses and distributions to beneficiaries and or creditors must be documented. In situations where the accounting does not list all of the assets and/or income, expenses, profits and losses, a detailed investigation during the course of this accounting proceeding can be undertaken to look into these issues. In the event where there is mismanagement, improper dealings, failure to act properly and or the estate has losses, the executor and or administrator can be held liable to reimburse the estate with regard to these items.

Fiduciary Responsibilities in Estates

The executor in a will or the administrator of an intestate estate is held to an extremely high standard of conduct. He or she is a fiduciary and fiduciaries must properly handle the estate. In certain situations a lawsuit can be undertaken with regard to fiduciaries mismanagement or mishandling of the estate. These situations involve:

  • The improper handling of estate property;
  • Improper transfer of assets to the fiduciary (self dealing);
  • Failure to the keep beneficiaries informed with regard to the handling of the estate;
  • Failure to follow the terms of the will or intestate distribution scheme.

NY Wills & Trusts Lawyer Elliot Schlissel

Elliot S. Schlissel and his associates represent clients throughout the metropolitan New York area in all aspects of estate litigation.

Medicaid Explained

Medicaid Explained

Medicaid is a program maintained jointly by states and the federal government. It is designed to pay for home healthcare aids and/or nursing home care for individuals who qualify. How does one qualify for medicaid? Although medicaid is basically a welfare program, estate planning can allow even families with significant assets to qualify for medicaid benefits.

Medicaid Qualifications

In New York State, the department of social services is the government organization an individual must apply to in order to qualify for medicaid benefits. The department of Social Services considers 3 important factors when determining medicaid eligibility;

  • Does the individual applying for medicaid benefits need nursing home care and/or a home health care aid?
  • What is the income of the applicant and his or her spouse? This includes pension benefits, retirement accounts, investment income, rental income, Social Security and all other income received by the individual and or his or her spouse.
  • Both the individual and his or her spouse have assets that can be utilized to pay for home healthcare aids and or nursing home expenses. These assets include, investments, residence, savings and all other assets.
  • Two Medicaid Programs

    There are two types of medicaid programs available to individuals. First is called community based medicaid. This involves having a healthcare aid provide services in the applicant’s home to help the applicant with their daily needs.

    The second type of medicaid benefits is referred to as institutional medicaid. This involves medicaid covering the cost of the individual residing in a nursing home facility.

    Individuals applying for institutional medicaid will have to submit documentation of their finances for the past five years.

    Medicaid Eligibility and Elder Care Planning

    Proper estate planning can help families protect their assets and allow them to be inherited by future generations and still have the state to pick up the cost of community based medicaid and for institutional medicaid (nursing home expenses). Speaking to an experienced elder law attorney is the first step in planning for one’s future and the possibility of needing institutional healthcare services or community based healthcare services.

    Elliot S. Schlissel is an attorney practicing Elder Law for more than 35 years. He has helped numerous clients qualify for both community medicaid as well as institutional medicaid.

    ALZHEIMER’S DEMENTIA AND GUARDIANSHIPS: WHEN IS A GUARDIANSHIP NECESSARY?

    wills-site

    If a family member comes down with Alzheimer’s disease or dementia, should you bring a guardianship proceeding on their behalf? In many situations, individuals who develop Alzheimer’s disease or dementia have sufficient mental capabilities to take care of themselves. Alzheimer’s disease and dementia in the early stages may only result in problems of short-term forgetfulness. These individuals may still be capable of handling a large majority of their personal and financial affairs. They may not require a guardianship to help them. However, in the second and third stages of Alzheimer’s and dementia, individuals lose a significant amount of their ability to take care of their financial issues and maintain themselves. They may forget about taking medication related to pending illness and problems. They may forget to pay their electric and heating bills, which can result in their home being in dark or without heal.

    GUARDIANSHIP PROCEEDING

    Guardianship proceedings can be expensive. A properly drafted power of attorney in many situations can be used to help the senior to deal with personal as well as financial issues. This may eliminate the need for the appointment of a guardian. The senior should also have a will and health care proxy.

    NURSING HOMES

    Individuals who develop Alzheimer’s and dementia ill eventually require nursing home care. Nursing homes can cost between twelve and fourteen thousand dollars a month. Estate planning can accomplish preserving an individual’s assets and not having them eaten up by the nursing home when he or she finds it necessary to be cared for in a nursing home.

    WHO CAN BRING A GUARDIANSHIP PROCEEDING?

    NY Attorney Elliot Schlissel

    The following is a list of individuals who can bring a guardianship proceeding:

    1. A loved one of the individual such as a spouse or child;
    2. The executor or administrator of the estate unless the individual is the beneficiary;
    3. The individual himself or herself;
    4. The trustee of a trust, unless the individual has an interest in it;
    5. A person representing the nursing home in which the individual is staying at;
    6. A welfare agency or Department of Social Services agency.

    ESTATE PLANNING ISSUES

    A person writing a will

    A will is a basic document that contains your instructions with regard to the distribution of your assets in the event of your death. However, there are numerous other issues that are dealt with during the course of estate planning. The following are some other issues that you may have to deal with.

    • Who will take care of your children (if they are minors) in the event of your death – Thinking about death and having someone else raise your children involves very painful thoughts. However, accidents happen and sometimes people die prematurely. Your will can name guardians for your children. Your will can also contain provisions dealing with who will control your assets and preserve them for the benefit of your children.
    • Who would you like to inherit your property at the time of your death? – If you die without a will, your assets pass under the laws of intestacy. This may not be the distribution scheme that you have in mind. If you have been married more than once, you should speak to an attorney about how your second spouse will fair in the event of your death. You may want to make provisions for children from your first marriage. In the event you die, and a second spouse inherits your assets, when that second spouse dies your assets may end up going to her children, not to your children from an earlier relationship.
    • Who will take care of your estate in the event you die? – If you draft a will you can name an executor. The executor will handle your funeral arrangements, your burial, and see to it that the terms of your will are carried out. If you do not have a will, close relatives of yours can petition the court to be named the administrator of your estate. You may end up having someone administer your estate that you really don’t trust.
      • OUR EXPERIENCE WITH WILLS

        estates attorney on Long Island

        At the Law Offices of Schlissel DeCorpo we have been writing wills for more than 35 years, and helping our clients with regard to the distribution of assets related to the death of loved ones, friends and relatives. If you have questions concerning estate planning, probating a will, or dealing with estate issues our attorneys are available 7 days a week to answer your questions. Feel free to call us at 800-344-6431.

    WILL ADMITTED TO PROBATE OVER OBJECTIONS

    Gavel & Books

    In a case before Surrogate Robert Gigante, Pending in Richmond County (Staten Island) Judge Gigante dealt with challenges to the probate of a will based on undue influence and failure of the will to be properly executed. The will was submitted for probate by the decedent’s brother. The decedent’s children objected to the probate of the will. The will was dated the day before the decedent died.

    UNDUE INFLUENCE

    Surrogate Robert Gigante found there was no proof there were any efforts maintained to unduly influence the decedent with regard to this will. Justice Gigante stated the objections by the children did not produce a scintilla of evidence of undue influence. His decision stated their objections were mere conclusions and these conclusions were not substantiated by the presentation of evidence to the Court.

    WILL NOT PROPERLY EXECUTED

    The children had also alleged that the will was not properly executed and that the signature of the decedent did not appear on the will. Justice Gigante however, found the children did not produce evidence or documentation or an analysis as to how the signature at the end of the will differed from other examples of their father’s signature. Justice Gigante stated in his decision dismissing the children’s objections there was no basis for the court to give any weight to the children’s unsupported opinions. In addition, he found they failed to demonstrate any material issues of fact concerning the will’s execution. Justice Gigante granted a summary judgment motion on behalf of the decedent’s brother dismissing the objections filed by the children and he allowed the will to be admitted to probate.

    Elliot S. Schlissel, Esq., represents clients throughout the metropolitan New York area with regard to issues concerning wills, trusts and estate-related matters.

    estates attorney on Long Island

    Money From Estates Of Murdered Children To Go To Their Father

    estate litigation lawyerLeatrice Brewer drowned her three children, Jewell Ward, Michael Demesyeux, and Innocent Demesyeux, Jr. In 2009, Ms. Brewer plead not guilty by reason by mental illness for the murdering of these three children. There had been an investigation by Child Protective Services regarding Ms. Brewer however, the investigation was incomplete and did not disclose the level of abuse which existed.

    Wrongful Death Monetary Settlement

    There have been wrongful death monetary settlements with regard to the deaths of these three children in Nassau County, New York. There has been approximately $350,000 recovered regarding this situation by the victims’ estate.

    On November 9, 2015, an agreement was worked out where Demesyeux Sr., the father of two of the deceased children, would receive $100,000 from the estate’s assets. This settlement was approved by Nassau County Surrogate Court Judge Edward McCarty, III.
    It was originally thought that Mr. Demesyeux Sr. had abandoned his children. However, this was not the case. Mr. Demesyeux Sr. took responsibility for burying his children and then standing up and defending his role as the father of his children in court.

    Even though Leatrice Brewer was never convicted of murdering her children, Surrogate McCarty ruled in 2013 that she was not entitled to estate money because it would be “repugnant to decency.” In New York State convicted criminals can’t profit from their wrongdoing. This case is unique because Ms. Brewer was never actually convicted of killing her children.

    Ms. Brewer is confined to a mental facility in upstate New York. She claims she was sick and killed her children while she was sick. She claims she is healing now by praying to God and asking for his forgiveness.estates attorney on Long Island

    Elliot Schlissel, Esq is an estate attorney representing clients regarding will issues, trusts and estate matters in the metropolitan New York area.

    Probate Issues

    New York estates attorneyAn estate proceeding was brought in Queens County, New York before Surrogate Peter Kelly. In this case the executor, the son of the decedent, asked that his mother’s 2012 Will be probated. The sister had objected to the probating of the Will. She alleged in her application before Judge Kelly that her mother lacked testamentary capacity, there was a mistake, and that the Will was not properly executed.

    The Judge’s Decision

    Justice Kelly examined the proof submitted concerning the son’s application to probate the Will. He found the attorney draftsman had announced in the decedent’s presence to the other subscribing witnesses the decedent was executing a Will and this was sufficient to satisfy the requirement of an expressed declaration by the decedent that this was her Will. He also found that at a deposition the attesting witnesses established the decedent had the appropriate testamentary capacity to execute a Will. Justice Kelly concluded that the Will was properly executed by the executor’s mother. He also found she had the appropriate capacity to prepare a Will. He dismissed the objections made by the mother’s daughter.

    The daughter claimed the instrument was executed by her mother as a mistake because she didn’t understand the contents of the Will. Justice Kelly found these objections made by the decedent’s daughter were “essentially nonsensical”. He went on further to state that a Will, when properly executed, will not be denied to be probated. He found the terms of the Will had to be construed as they were written in the Will. His decision stated “what the testator has done, not what she meant but failed to do is to be given effect.” He granted the petition for probate made by the son and dismissed the cross-petition challenging the probate of the Will made by the decedent’s daughter.Long Island Wills and Estates lawyer

    After a Loved One Passes

    Losing a loved one can be an extremely difficult experience. In some situations after your loved one passes, their next of kin is called upon to supervise the estate of the deceased. After the funeral takes place, the individual charged with handling the estate of the deceased has to first find the assets and gather them together within the confines of the estate. Thereafter he or she must pay creditors and authenticate who the beneficiaries to the estate are. If the decedent wrote a will, the process begins by probating the will.

    The Probate Process

    The first step in the probate process is to locate the original Will and file the Will with the Surrogate’s Court located in the county where the decedent resided before his or her death. In addition to filing the Will, a probate petition must accompany the Will. If the court accepts the probate petition, the case will be placed on the court’s calendar. The beneficiaries and next of kin will need to receive notice of this upcoming court date. On the return date of the probate petition, if there are no challenges to the will, the court will render a decision authorizing the executor named in the Will to be appointed to fulfill the terms and functions of the Will. The executor will determine the assets of the estate and gather them together. These assets may involve selling real estate, liquidating bank accounts, stocks, bonds and mutual funds, and various other types of assets. If there are expenses related to the decedent’s final illness, these expenses must be paid. Tax returns for the year in which the decedent died must be filed and if taxes are due, they must be paid. If the estate is a large estate, there may be estate taxes due and owing. At the end of the probate process the executor must prepare an accounting of the assets received, the payments which have been made to creditors, and lay out the scheme for the payment of the balance of the funds of the estate to the beneficiaries named in the Will.

    No Will Causes Administration Proceedings

    Administration proceedings are similar to probate proceedings, however they are a bit more complicated. Since no one has been named by the decedent to handle his or her estate, the next of kin and/or other family members may approach the court and seek to be named the administrator of the estate. This sometimes causes disputes among those individuals who seek to control and administrate the decedent’s estate.

    In both probate and administration proceedings, family members who don’t feel they received their fair share of the estate sometimes come forward and challenge the estate proceeding.

    Dealing with Estate Issues

    I would not recommend an executor or administrator try to handle either the probate of a Will or the administration of an estate without the guidance and legal representation by an experienced estates attorney. If the administrator or executor makes a mistake, he or she can be personally liable for financial damages. The cost of hiring an attorney to represent the estate are paid by the assets in the estate, not by the funds belonging to the administrator or executor.new york estates attorney

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