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.

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

How Do I Avoid Probate?

estate planning lawyerIn some states, the probate process can be long and expensive. Wills, when they are probated, are public documents and anyone can go to the courthouse and view the Will. While there is a valid reason for drafting a Will and having it probated, in some cases this may not be the very best way to handle the transfer of assets from one generation to the next. This is especially true when the individuals involved are of modest means and do not have significant amounts of property. The following are several examples of devices which can be used to avoid the necessity of probate.

Joint Ownership of Property

When two individuals own property, and they want the survivor of the two to become the sole owner of the property they enter into a type of deed which specifically has the right of survivorship. In New York State a deed which allows for the survivor to inherit the property is called a joint tenancy with right of survivorship, or a tenancy by the entirety for married individuals. This type of deed causes the property upon the death of the first one to die to automatically vest title to the entire parcel of property in the other individual’s name.

Gifts

Simply speaking, if you gift your assets to others during the course of your lifetime you will have no property to be inherited at the time of your death. There are various Internal Revenue Service rules concerning the gifting of property. As of the writing of this article an individual can gift up to $5,430,000 (a married couple can give $10,860,000 specifically $5,430,000 for both the husband and wife) during the course of his or her lifetime without it creating a Federal taxable event. The amount an individual can give to others during his or her lifetime goes up each and every year based on a formula which deals with inflation. In addition, an individual can, each and every year, give the sum of $14,000 to each recipient in each calendar year. Couples who are married, therefore, can give up to $28,000 to individuals in each and every calendar year.

If a family friend or loved one has medical bills, you can offer to pay for the medical treatment and there is no limit under the Internal Revenue Code as to payments of this nature to help out a friend or loved one.

Living Trusts

A living trust is a testamentary vehicle which will allow an individual to avoid having a will which needs to be probated. In theory, the individual puts his assets in the name of the living trust and therefore these assets are removed from the individual’s estate. When living trusts are created it is necessary to have a pour over will drafted so any assets which are not included in the trust will be poured back into the trust at the time of the individual’s death.

Pay on Death Accounts

If you have maintained money in banks or other financial institutions, you can designate that upon your death all of the assets in the account be paid over to an individual of your choice. When you pass, the individual named on the account needs to provide a valid, original death certificate to prove your death and thereafter all of the funds in the account would be paid over to him or her.

Conclusion

The best way to avoid probate is to meet with a qualified estate planning attorney and work out an estate plan which meets your family’s needs.wills and trusts lawyer

Long Term Health Care Plans

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

https://youtu.be/U6ZbEa8kxDM

Elliot S. Schlissel has more than 35 years experience representing clients in all aspects of estate and long term care planning.  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.

Guardianship Proceedings

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

https://youtu.be/8iE4A-E457A

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates have been handling guardianship proceedings for more than 35 years.  Elliot can be reached for consultation by calling 516-561-6645 or 718-350-2802, or by sending an email to schlissel.law@att.net.

Decedent’s Sister Fails to Set Aside Will

probate attorney in New YorkRoosevelt, the sister of MacGuian, brought a proceeding in the Surrogate’s Court of New York County before Surrogate Rita Mella challenging a Will that MacGuian had executed in 2011. She claimed the Will, which was being submitted by the executor Eng, the decedent’s long time girlfriend, should not be accepted for probate. Roosevelt claimed the Will was not properly executed. In addition, she claimed MacGuian lacked testamentary capacity, there was undue influence and fraud involved in the preparation and execution of this Will.

2011 Will

The 2011 Will designated Eng as its executor. In addition, Eng was named as a beneficiary of all tangible assets including the decedent’s cooperative apartment, and one half of the balance of his estate which totaled more than $8,000,000. The other half was left to be divided among five charities.

Roosevelt claimed in her application to set aside the Will, that it was a significant departure from the prior Wills of MacGuian. The prior Wills named Roosevelt or her children as partial beneficiaries.

Surrogate Mella found the 2011 and the prior Wills presented a series of testamentary plans in which MacGuian provided for those individuals he had a relationship with at that time. Surrogate Mella dismissed Roosevelt’s claim. Her decision stated Roosevelt failed to raise a triable issue of fact with regard to issues involving testamentary capacity and her other objections. The witnesses to the Will provided documentation that MacGuian was of sound mind at the time the Will was executed. In addition, MacGuian’s doctors all provided documentation of MacGuian’s testamentary capacity at the time the Will was executed.estate planning lawyer

How To Avoid Probate in New York – Part I

The probate process in New York can involve expenses, time delays and the opening up of family related issues to public scrutiny. There are a number of mechanisms which can be utilized to avoid probate. The following are examples of various types of legal measures which can be utilized to avoid probate:

  • Living trusts. In the State of New York, there are two different types of living trusts. One is a called a revocable living trust and the other is an irrevocable living trust. The difference between the two of them is the revocable living trust can be amended, modified or completely revoked by the individual who made the trust. The irrevocable trust can be amended and modified but it cannot be revoked. It is a permanent document. When these types of trusts are created, you turn your assets over to these trusts. This means you deed the house to the trust. Bank accounts, securities accounts and other investment vehicles can also be put in the trust’s name. At the time of the death of the creator of the trust, the trustee then takes action to carry out the terms of the trust which may involve the distribution of the trust assets to trust beneficiaries. This all takes place without the trust being subject to the probate process. Trusts are private documents. Wills are public documents which, after the individual dies, may be reviewed by anyone in the Surrogate’s Court. The distribution of assets in a trust is not supervised by the court. It is all handled privately. However, if there are challenges as to the manner in which the trust was handled, or the way the assets are distributed, legal action can be undertaken to deal with these issues.probate attorney

Doctor Assisted Suicide

Attorneys for a group of terminally ill individuals have taken legal action to prevent prosecution of physicians who provide assistance in dying to terminally ill, mentally competent individuals. The attorneys have sued 5 district attorneys and the attorney general for the State of New York to stop them from prosecution of physicians who provide assistance in dying to terminally ill patients. Kathryn Tucker, the Executive Director of the Disability Rights Legal Center, represents the plaintiffs. She recently stated “this case is about letting the patient, the individual, choose how they will cross the threshold to death when faced with the final ravages of terminal illness.”

Presently under New York law, terminally ill, mentally competent New York residents can opt to withdraw life prolonging medical procedures to hasten their death. Examples of medical assistance they can refuse to take involve the utilization of ventilators and feeding tubes. They can also ask for drugs to keep them in a deep sleep while they slowly die of hunger and thirst.

Doctor Assisted Suicide

New York has a statute which prevents doctor assisted suicide. It is an E felony to “promote a suicide attempt.” This is defined as intentionally causing or aiding another person to commit suicide. In addition, there is a second statute which classifies the act of intentionally causing or aiding another person to commit suicide as a C felony, also known as second degree manslaughter. A Class C felony can be punishable by a sentence of up to 15 years in prison, and a Class E felony can be punishable by a sentence of up to 4 years in prison. This lawsuit states there is no “valid statutory basis” to prosecute doctors who provide aid in dying because a mentally competent, terminally ill patient opting for a “peaceful death” does not constitute suicide. Ms. Tucker, when interviewed, stated the law in New York creates a “chill in the environment” which may make physicians fearful of assisting patients with suicide.

Aid in dying statutes make it legal to assist patients with suicide in the States of New Mexico, Oregon, Vermont, Washington and Montana. This lawsuit seeks to bring the State of New York into this group.

Elliot S. Schlissel is an elder law attorney. He helps clients with regard to wills and estate issues.estate lawyer in New York

Dying Without a Will – Who Inherits?

When an individual who has not written a will dies, it is said he or she died intestate. Intestate succession in New York State deals with the distribution of assets as follows:

 

  • If the individual who dies did not have a spouse at the time of his or her death, and he or she had children, the children would inherit all of the assets.
  • If the individual who died had a spouse and no children, the spouse would inherit everything.
  • If the individual who died had a spouse and children, the spouse would inherit the first $50,000 of the decedent’s assets, and 50% of all other assets of the decedent.
  • If the individual who died had parents who survived him or her and no spouse and no children, the parents would inherit all of this individual’s assets.
  •   If the individual who died had no parents who survived him or her, no spouse and no children, but had brothers and/or sisters, the brothers and/or sisters would receive all of the assets.
  •   If the situation gets beyond this point you should hire an estates lawyer to go through a more detailed inheritance chart.

Assets Which Pass Outside of an Individual’s Estate

Many assets do not pass under an intestate estate if the individual dies without a will, or pursuant to the terms of a will even if an individual who dies has a will. These types of assets are referred to as testamentary substitutes, which do not pass either by intestate succession or pursuant to the terms of a will. The following is a list of some testamentary substitutes which would pass outside of an individual’s estate:

  • The proceeds of life insurance contracts
  • Funds maintained in a pension, IRA, 401(k), 403(b) or other retirement accounts which has an internal beneficiary designation related to the account
  • Assets maintained in a living trust
  • Bank accounts and/or securities held in transfer on death accounts
  • Property you own pursuant to a joint tenancy or a tenancy by the entirety (tenancy by the entirety applies to property owned by a husband and wife)

Dealing With Estate Issues

Most individuals do not understand estate succession laws and the complexities involved in the transferring of assets in estates. In the event a family friend, loved one, spouse, child or other individual who was close to you passes and you feel you are entitled to an inheritance from this individual, the best way to see to it your inheritance rights are protected, is to hire an experienced estates lawyer. The estate lawyer’s job will be to see to it all of your rights to inherit are protected.wills and trusts lawyer

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