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

Living Wills

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Elliot S. Schlissel is an attorney with more than 35 years experience in estate planning and all aspects of estate litigation.  He and his associates are available for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Estate Planning: What Is It?

wills and trusts lawyerEstate planning involves making decisions concerning a variety of personal matters and financial issues to deal with issues involving your demise. A Will is a basic document which allows you to decide during your lifetime who will receive your money and your property in the event of your death. It also allows you to appoint someone to be in charge of the handling of your final arrangements and the final distribution of your assets in your estate. This individual is called an executor.

Probate

Probate is the court process which authenticates the validity of a Will. If you don’t have a Will it is considered that you died “intestate”. If you die intestate, an administration proceeding needs to be brought in the Surrogate’s Court to determine who your next of kin are so they will be able to receive your assets. Individuals who die intestate have their assets passed down under New York State’s laws of inheritance.

Trusts

Trusts are another example of a testamentary device. Trusts are more sophisticated testamentary devices than Wills. Trusts can be used to prevent assets from being taken by creditors, leave assets to special needs children and special needs adults, and to give the decedent control as to how his or her assets are utilized after his or her death.

Powers of Attorney, Healthcare Proxies and Living Wills

Powers of attorney, healthcare proxies and living wills are designed to help seniors manage their money and medical decisions should they become unable due to illness or disability to handle these matters on their own.

Estate Planning Attorneys

The best way to deal with estate related issues is to consult with an experienced estate planning attorney and discuss the variety of issues which can impact on one’s assets, children, financial affairs, taxes and other issues related to moving assets from one generation to another.

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

Fighting Dementia

elder care attorneyThere is a growing prevalence of dementia and Alzheimer’s disease among seniors in America. Many seniors develop either dementia or Alzheimer’s which virtually fries their brain, and it can have a devastating impact upon their family.

Cost of Treating Dementia

The treating of dementia related illnesses is very costly. There is a study which claims that by 2050, $1 out of every $3 spent on Medicare will go to the treatment of dementia related illnesses. It is estimated by the year 2050, this will cost over $1 trillion dollars.

Curing Dementia

Both Alzheimer’s disease and other types of dementia are not curable. The treatment today simply slows onset of the disease. As Americans’ life expectancies increase, more and more Americans are expected to develop these illnesses.

Medical science does not know what causes dementia. However, there is some indication that people can reduce their risk of cognitive impairments by adopting certain life long habits which promote good overall health. It is recommended to people as they get older to exercise on a regular basis, eat appropriately, try to reduce stress and stay socially active and engaged. It is also extremely important to try to continue to learn throughout your lifetime.

Long Island Wills and Estates attorneyElliot S. Schlissel is an elder care attorney. He represents clients in all aspects of estate planning, drafting of wills and trusts, drafting healthcare proxies and powers of attorney.

Healthcare Proxy

estate planning lawyer in New YorkIt is suggested today that seniors living in America have healthcare proxies. A healthcare proxy allows an individual to designate another person to help him or her make decisions regarding healthcare in the event he or she becomes incapable of making those decisions. Healthcare proxies are designed to allow a person when they are cognizant of the potential issues they may face to authorize someone else to make decisions reflecting their wishes should they be incapacitated and unable to make those decisions on their own. These decisions deal with medical treatment and medical procedures.

The Principal

The person making the healthcare proxy is called the principal. The person the principal nominates to help him or her make decisions is called the agent. The principal can appoint one or more individuals to act as his or her agents. The way the law is set up in New York, the principal nominates one person to act as his or her agent and if that one person does not serve or cannot serve then a successor agent is authorized to serve.

Ultimate Decisions

The ultimate decision an agent makes with a healthcare proxy is whether to turn off a life support machine when it is certified by the principal’s physician that he or she is brain dead and will never be able to recover. These life support machines which are keeping bodies functioning for brain dead individuals are prolonging death and not prolonging life.estate planning attorney

Misconceptions Regarding Wills

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

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Requirements When Preparing a Will

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

https://youtu.be/pUnOQlVlAkg

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Ex-Wife Not Entitled to Life Insurance Proceeds of Deceased Former Husband

estate lawyer in New YorkIn a case in Erie County, New York, before Surrogate Barbara Howe, an estate sought to have the decedent’s ex-wife turn over the life insurance proceeds to the estate which she had received as a result of decedent’s death. In this case, the decedent left his entire estate to one of his sisters. She brought an application to the Surrogate’s Court to force the ex-wife, to turn over to the estate all of the funds she received as the beneficiary of the decedent’s life insurance policies. The ex-wife, through her attorneys, claimed she was entitled to the benefits as the decedent made an affirmative choice not to remove her as the beneficiary.

The decedent’s sister asserted that the ex-wife’s legal basis to receive the life insurance proceeds was terminated upon entry of a judgement of divorce in the County Clerk’s office. The court referred to Section 5-1.4 of the Estate, Powers and Trusts Law and the legislative history with regard to the enactment of this section of the EPTL. Surrogate Barbara Howe found that for an ex-wife to inherit she must prove the decedent took affirmative action after the divorce to ensure the ex-spouse would retain her status as the beneficiary on the pre-divorce life insurance policy. In this case, the decedent did not do so. Therefore the pre-divorce beneficiary designation was ruled a nullity. Judge Howe in her decision went on to state the ex-wife did not meet the standard under EPTL 5-1.4 with regard to the ex-spouse taking action after the divorce to reinstate her as the beneficiary. Judge Howe found the ex-wife had been bought out of the life insurance policy during the divorce case and she no longer had any marital interest in the life insurance policy. The policy was decedent’s separate property. Surrogate Howe ordered the ex-wife to repay the estate the full amount of the life insurance proceeds she had received.

Conclusion

To be safe, if you are getting divorced, remove your ex-spouse as beneficiary on all financial documents, deeds, bank accounts, securities accounts and all other financial instruments of every type and nature.estate planning attorney on Long Island

Divorce’s Impact on Wills and Other Testamentary Devices

Let’s say you get divorced but you don’t modify your will or change your bank accounts. What happens at the time of your death if your ex-wife is the beneficiary of your will and other assets are held jointly with your ex-wife?

New York State Law

Under New York State Estate Powers and Trusts Law Section 5-1.4, unless a will expressly states otherwise, divorce, judicial separation or annulment of a marriage revokes all dispositions or appointments of property made by the divorced spouse to a former spouse. Your former spouse would be treated as if he or she died before you. This means that any clause which would have named your former spouse as a beneficiary under you Will is revoked.

In addition, if you are divorced, your ex-spouse also loses his or her rights to inherit from your bank accounts, life insurance policies, revokable trusts, and real estate interests involving joint tenancies.

Housekeeping Needed After Your Divorce

If you get divorced, it is important to go through all of your financial documents and records. Your ex-spouse’s name should be removed from being a beneficiary on your life insurance. You should also notify your health insurance carrier that he or she is no longer married to you. In addition, you should remove your spouse’s name from your bank accounts, securities accounts, and financial accounts of every type and nature. If you have a Will, you should meet with the attorney who drafted the Will and draft a new Will.

Between the attorneys fees involved in the divorce, the child support, spousal maintenance, and division of assets pursuant to the terms of the divorce, your net worth will be diminished. You should carefully review all of your financial assets to make sure that upon your death, your ex-wife will not be in a position to seek to try to inherit and possibly cause litigation. Even though if you don’t disinherit her, the statutes in New York cause her to be disinherited, it is still better to change the documents to avoid the potential complications and legal expenses.estate planning attorney

Medicaid and IRA’s

long island estate planning attorneyIf you have an Individual Retirement Account (“IRA”) and you are applying for Medicaid there are certain rules and circumstances which affect your IRA. Your IRA cannot be transferred if you are married. The only way to transfer an IRA between a husband and a wife is to have them enter into a separation agreement or get divorced. If you are in an institution and Medicaid is paying for your care, your spouse is entitled to the monthly maintenance needs allowance. The monthly maintenance needs allowance is currently $2,980.50 per month. This is the total you can receive from Social Security and from the IRA or other sources of assets which are in your spouse’s name. It should be noted the funds you receive from an IRA are pre-taxed assets and federal and state income taxes may need to be paid with regard to the funds distributed.

If you have an IRA custodian account you should request your custodian withhold taxes from payments and therefore your spouse can receive the entire $2,980.50 and not have any taxes removed from these funds. The $2,980.50 stipend used for your spouse’s expenses in New York State is the highest in the United States. Unfortunately, this may not be sufficient to live on in the State of New York. A legal proceeding can be brought to obtain a larger allowance, but this is difficult to be successful in these proceedings. The fact that the standard of living in New York State is high is not a valid reason for obtaining a higher monthly stipend.

Conclusion

It may be necessary for Medicaid to pay expenses for you or your spouse, either for private nursing care at your residence or in a nursing home facility. You should meet with an elder care attorney early on and develop a plan to help you qualify for Medicaid should you need it to pay your expenses for nursing home care.estate planning attorney

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