Accounting Proceedings

Accounting-Proceedings

The individual in charge of gathering the assets in an estate, trust or a will is called a fiduciary. Fiduciaries have administrative duties to see to it estates, wills and trusts are handled appropriately. They have a special responsibility for dealing honestly and responsibly with the estate assets. They often are responsible for collecting, managing and distributing the assets of an estate. The fiduciary can be the executor of an estate, the administrator of an estate or a trustee. Sometimes fiduciaries do not carry out their duties appropriately. If a fiduciary does not carry out the terms of the will, or a trust or the intestate distribution (dying without a will) appropriately they may be in violation of their fiduciaries duties.

Examples of a Fiduciary Breaching His or Her Duties:

  • Failure to follow the terms of a will, trust or deviating from intestate distribution responsibilities
  • Taking action regarding the property of an estate without obtaining the appropriate approval of the beneficiaries
  • Mishandling of assets of the estate
  • Failure to move forward with the administration of the estate or trust in a prompt manner
  • Failure to keep the beneficiaries up to date with regard to the handling of the estate or trust

Court Intervention Regarding Fiduciaries

If a fiduciary is not carrying out his or her duties in an appropriate fashion, any beneficiary can take legal action to deal with these issues. One of the types of legal action a beneficiary can bring is called an accounting proceeding. The beneficiary can ask the Surrogate’s Court to intervene and take action against the fiduciary if they have failed to fulfill their obligations. The fiduciary can be surcharged and/or removed from his or her position as a fiduciary. If an accounting proceeding is brought, the fiduciary should in a reasonable period of time provide a copy of the accounting to the beneficiaries. In some situations if a fiduciary engages in inappropriate activities concerning estate assets he or she can be charged for these losses. In these situations a fiduciary has to reimburse the estate for the loss of the estate assets.

Amicable Resolution of Estate Matters

The best way to deal with estate problems is to try to reach amicable resolutions of issues outside of the courthouse. Litigation is expensive and time consuming. However, if the situation rises where an estate or trust matter cannot be resolved amicably, aggressive legal action can be taken to deal with these issues.

Elliot-Schlissel

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm has more than 35 years of experience dealing with all types of issues involving wills, trusts and estate matters. They can be reached for a free consultation either 516-561-6645, 718-350-2802 or 631-319-8262. He can be e-mailed at Elliot@sdnylaw.com.

VIDEO: Is a Revocable Trust or an Irrevocable Trust Right For You

Fighting for Special Needs Children

Picture of a young child

Parents who have special needs children besides from making standard elder care and estate planning decisions, must take into consideration how a child with a disability who may never be able to support themself will be taken care of after the parents die or become disabled.  Failure to make advanced planning arrangements for a special needs child can lead to a disastrous situation for that child.

Special Needs Trusts

Special needs planning takes in consideration government funded programs as well as the families ability to provide for this child in the long run. Special needs trusts are created to deal with financial issues to help support a special child after the parents are no longer capable of taking care of him or her. Special needs trusts are created to maintain the quality of life of the special child. These trusts can be designed to take care of personal care issues, housing and other services for this child. Another name for special needs trusts is supplemental needs trusts.

Elder law attorneys help families make long term plans to maintain their special needs children after they pass. These plans provide for the financial security of special needs children who will unable to support themselves or take care of themselves. In the italics replace the word care with the word law.

NY Attorney Elliot Schlissel

Elliot Schlissel is an elder care attorney with more than 35 years of experience practicing law throughout the Metropolitan New York area.

Revocable Trust or Irrevocable Trust: Which Is The Right One For Me?

Elderly woman in deep thought

Revocable trusts are primarily used for the purpose of avoiding probate. These trusts are private documents which are not filed in courts. The beneficiaries inherit through the trust.

IRREVOCABLE TRUSTS

Irrevocable trusts are usually set up to protect assets related to the cost of long term care. Whether it is for home or health care aids or for living in a nursing home. If an irrevocable trust is set up more than 5 years before an individual requires care in a nursing home it can be set up in a manner that would cause Medicaid to pay the nursing home expenses. Nursing home expenses can cost as much as $12-$14,000 per month. These expenses can eat up a large portion, if not all, the assets in most estates.

ESTATE TAXES

Both irrevocable trusts and revocable living trusts can be set up for the purpose of minimizing estate taxes. In New York, estates are subject to both federal and New York State estate taxation.

COST FACTORS OF TRUSTS VS. WILLS

Generally speaking, it is less expensive to have an attorney draft a will than it is to have the attorney draw up either a revocable or irrevocable trust. Wills require no administration while trusts can require some annual administration. Although wills go through the probate process, trusts avoid probate. There are many different factors to be considered when deciding with regard to your estate plan as to go with a revocable trust, an irrevocable trust, or simply a will. It should be pointed out that trusts can also be included within wills.

The best way to deal with these issues is to meet with an estate planning attorney and discuss this with him or her.

NY Attorney Elliot Schlissel

Elliot S. Schlissel is an attorney with more than 35 years of experience drafting wills and trusts and representing clients throughout the metropolitan area regarding the probate of wills.

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

Special Needs Trusts Explained

estate planning lawyer in New YorkSpecial Needs Trusts are used to help family members, loved ones and friends who suffer from debilitating mental and physical problems. Special Needs Trusts are also referred to as Supplemental Needs Trusts. The purpose of these trusts is to set aside funds and other valuable assets to help mentally or physically disabled individuals live with comfort and dignity. The assets put into these trusts can be utilized by the disabled individuals while not creating any problem which jeopardizes them from receiving government benefits such as Medicaid and Social Security Disability. Some situations where these trusts are commonly utilized are where the beneficiary of the trust has received a large award from a medical malpractice case, a personal injury case, or through an inheritance. These trusts set up a procedure where a trustee is appointed. This trustee uses the funds in the trust to pay for expenses of the beneficiary of the trust. The beneficiary of the trust cannot have actual access to the trust funds.

Two Types of Special Needs Trusts

The first type of Special Needs Trust is called a First Party Supplemental Needs Trust. In this situation a family member, usually a parent, sets up the trust for a person who is mentally or physically handicapped and also under 65 years of age. After the death of the beneficiary, if the beneficiary had been receiving Medicaid, Medicaid has a right to recover the money paid to the beneficiary during the course of their lifetime for medical benefits from whatever funds still remain in the trust at the time of the beneficiary’s death.

Third Party Special Needs Trusts

A Third Party Special Needs Trust can be created for a special person at any age. This trust also protects the beneficiary’s rights to receive benefits such as Medicaid or Social Security Disability. With regard to this type of trust, when the beneficiary dies, the assets of the trust are distributed pursuant to the terms of the trust to the individual named as beneficiary in the trust. Medicaid cannot go after the assets in the trust to repay them for funds expended during the lifetime of the beneficiary of the trust.

Conclusion

The two types of Special Needs Trusts can help special individuals, disabled individuals and the chronically ill while allowing them to collect all applicable governmental benefits. These types of trusts have helped tens of thousands of Americans with medical or mental problems live happy, comfortable, fulfilling lives.trusts attorney on Long Island

Advanced Directives

lawyer who handles estate planningLiving Will

Living wills should not be confused with last wills and testament. Living wills do not provide for the disposition of assets after death. Living wills are designed to state an individual’s preference with regard to medical treatment should they be unable to communicate or direct their doctors or family members concerning their wishes. This prevents loved ones from being in a difficult position with regard to making decisions concerning someone else’s health and welfare without any input from them. A living will can state that in the event the individual is declared brain dead, no artificial respiration or mechanical life supporting machines should be used to keep them alive. It is thought that if an individual is brain dead, medical measures to keep the body functioning do not prolong life, but rather prolongs death. In addition, living wills spell out the types of medical care an individual wants if they are unconscious, develop mental issues, or are simply unable to communicate their desires concerning their medical treatment.

The Living Will and the Terry Schiavo Case

A number of years ago there was a case which received a lot of national attention involving a 26 year old woman, Terry Schiavo. Terry had a heart attack. She lapsed into a coma and spent 15 years in what doctors described as an irreversible, persistent vegetative state. Terry could not communicate in any way, form or manner concerning her wishes regarding her medical care. Terry’s husband felt she would not want to continue living in a vegetative state. He requested the feeding tube attached to her body be removed and she be allowed to die a natural death. Terry’s parents strongly disagreed with this decision. They brought a legal proceeding to stop the feeding tube from being removed. There was extensive legal proceedings involving significant amounts of money through lower courts and appeals courts regarding the Terry Schiavo case. In the end, the husband was successful. The feeding tube was removed and Terry died a natural death.

Conclusion

An individual never knows when something catastrophic is going to happen to him or her. Using the advanced directive of a living will can avoid the type of problems that existed in the Terry Schiavo case.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.

Handwritten Wills

To watch today’s video blog, please click on link below:

https://youtu.be/WYaYj8FP0fQ

Elliot S. Schlissel drafts wills and trusts and aids his clients in all aspects of estate planning.  Elliot handles estate litigation, including issues where a person has died without a will or with an improper will.  He and his associates have been handling these types of matters for nearly 40 years.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

Guardianship Litigation

Please click on the link below to watch today’s video blog:

https://youtu.be/GqsiyKMPw-4

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been representing clients in all aspects of guardianship proceedings for nearly 40 years.  He and his associates are available for consultation by calling 516-561-6645 or 718-350-2802 or by sending an email to schlissel.law@att.net.

Benefits of a Trust

Please click on the link below to watch today’s video blog:

https://youtu.be/r2AvvQNIBF8

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates have more than 100 years of combined experience representing clients in all aspects of estate planning.  He can be reached for consultation by calling 516-561-6645 or 718-350-2802, or by sending an email to schlissel.law@att.net.

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