Estate Litigation – Part II

The second most common estate challenge deals with improper transfers of assets during the lifetime of the decedent. After an individual dies, questions as to the validity of transfers of assets during the decedent’s lifetime sometimes occur. The most common manner in which the funds of a decedent are improperly transferred involves the improper actions taken with a power of attorney. This may be through an individual taking funds from a joint account which was opened solely for the convenience of assisting the senior in paying bills and dealing with normal daily expenses.

Power of Attorney

It should be noted a power of attorney is a document in which one person authorizes another individual to act on their behalf with regard to financial matters. Sometimes powers of attorney are improperly utilized to improperly take funds from a senior by the individual with the power of attorney ingratiating themselves to the senior’s detriment. A method of improperly utilizing a power of attorney is to have the individual who has the power pay his or her bills from the seniors assets. Another inappropriate action sometimes involves the transferring of real estate under the power of attorney to the benefit of the individual holding the power of attorney. This can be considered the improper converting of assets of the senior. This is a violation of the fiduciary obligations of the individual holding the power of attorney.

Improper Estate Administration

The third most common issue which is litigated in estates deals with the improper administration of the estate. Sometimes the fiduciary, whether it be an executor or an administrator, acts in a manner which is detrimental to preserving the assets of the estate. In these cases, beneficiaries’ rights can be compromised unless legal action is taken. Beneficiaries are entitled to a copy of the decedent’s last will and testament and an accounting as to what took place during the course of the administration of the estate. There are proceedings called accounting proceedings which can be brought on behalf of beneficiaries which allows the investigation by the attorney for the beneficiary to look into what actually transpired during the period of the administration of the estate.

Experienced Estate Attorneys

In the event either you, a loved one, family member, or friend have an issue with regard to any aspect of an estate, the best way to see to it your rights are protected and any funds you are entitled to come into are properly dealt with is to hire an experienced estates attorney to protect your rights.estate attorney

Estate Litigation – Part I

trusts and estate attorneyThere are a variety of situations which result in litigation of estate related matters. The first, and most common, case which is litigated in the Surrogate’s Courts in New York State is a will contest or the challenging of a trust. The most common reason for challenging a will or a trust is lack of testamentary capacity or undue influence.

Testamentary Capacity

Testamentary capacity deals with whether the person making the will had the capacity to make the will on the day the will was executed. This challenge deals with the person who made the will’s understanding of what they were doing, who were the natural objects of their bounty, and the impact this will would have on the testamentary scheme.

Undue Influence

Undue influence deals with a situation where the person making the will has a diminished capacity. Another individual improperly influences them for the purpose of ingratiating themselves. Sometimes undue influence is based on either overt or perceived threats or intimidation.

Setting the Will Aside

Setting a will aside on either the basis of lack of testamentary capacity or undue influence requires the individuals challenging the will to produce documentary evidence proving their claim. Examples of the type of evidence utilized in these cases are medical records, records from pharmacies, financial documents, and testimony of third parties or other family members with regard to the circumstances and events concerning the decedent at the time the will was prepared and executed.

Altered Documents

Other types of proceedings brought to challenge wills deal with forgeries, improper alterations or modifications to the will, and questions concerning the improper destruction of the will, sometimes even after the decedent’s death.wills and estates lawyer

Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part I

estate litigation attorney in New YorkIn some societies as parents and other loved ones grow older, the level of respect and help provided to them by their children and other loved ones increases. Sometimes, however, loved ones who are sickly or suffer from Alzheimer’s disease are taken advantage of for financial gain. Examples of inappropriate actions where individuals seek to enrich themselves are:

  1.  where an elderly father has dementia or Alzheimer’s disease, and a child or second wife is added to the bank account which was meant for other family members.
  2. an individual ingratiates himself or herself and takes the sickly father to a lawyer’s office to make a will cutting out other family members from inheritance.
  3. the changing of a will by a senior disinheriting a favorite child or children and leaving all of the assets to another child or someone else shortly before their death.
  4. a caregiver who ingratiates themselves to a sick, elderly person for the purpose of becoming the beneficiary of bank accounts or other assets contained in their will.

Experienced Estates Attorney

Hiring an attorney experienced in litigating issues like those referred to above can be the first step in successfully setting aside these transactions. Immediately upon realizing there has been something inappropriate which took place with regard to the assets of a loved one, you should seek out an experienced estates attorney to represent you. You may not find out about these transactions until after the individual dies. It is not too late to take action, at that point, to set aside transactions prior to death involving bank accounts, securities, or wills.

There are a number of issues which can be raised to successfully challenge wills, trusts and joint bank accounts.estate planning lawyer

Will Requirements

There are a number of requirements necessary to write what is referred to as a self proving will.

I.   You must be of sound mind to write a will.

  • You must understand what you are putting into the will. You must know you are writing a will.
  • You must understand who your next of kin are and what your assets are.
  • You must be 18 years old, in the State of New York, to write a will.

II.   When executing a will, you must state that this is your will. You must acknowledge to the individuals witnessing your will the document in front of you is your will.

III.   You must sign the will at the end and date the will.

IV.   In the State of New York, the will must be attested to by a minimum of two witnesses. Good drafting requirements suggest you use three witnesses, should one of the witnesses become unavailable at a later date. It is important the witnesses be independent, neutral parties and not beneficiaries under your will.

  • The witnesses must see you execute the will and hear you state the document is your will.
  • The witnesses must sign the will after you sign the will, and sign the will in front of each other witness at the same time.

V.   If you have children, the will should:

  • appoint a guardian for your minor children in the event of your death.

VI.   Concerning your assets, the will should identify what your assets are and state who should inherit them.

VII.   Assets not specifically referred to in the will should also be distributed by the will.

VIII.   The appointment of an executor:

  • The executor is responsible for supervising the burial, the payment of your debts, and the distribution of your assets.

Conclusion

The question is, should I have a will or do I not really need a will? The answer is, you do need a will. If you have any type of assets, you should have a will to distribute them. If you have children, your will should name the guardians of your children in the event of your death. If you don’t have a will, the State of New York will determine who receives your assets and who raises your children. For peace of mind and doing what is in the best interest of your children and other family members, hire an experienced, qualified attorney and write a will. You will find it is not that painful and not very expensive.wills attorney in New York

Potential Tax Benefits of an Irrevocable Life Insurance Trust

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Elliot S. Schlissel drafts wills and trusts and aids his clients in all aspects of estate planning.  He and his associates have more than 100 years of combined experience representing clients.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

When An Executor Hires An Attorney For The Estate

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been representing executors in estate administration proceedings for more than 35 years.  He and his associates draft wills and trusts, handle estate litigation, guardianship proceedings, and all other aspects of estate planning.  Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Proposed Tax Credits

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Elliot S. Schlissel and his associates have been representing clients for more than 35 years in all aspects of estate planning.  Elliot and his associates draft wills and trusts, represent clients in guardianship proceedings, and estate litigation.  Elliot is a member of the National Academy of Elder Law Attorneys.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Long Term Care Issues

long term care lawyerAs the population of America ages, there is a retirement issue many Americans don’t realize exists.  This issue involves long term care.  One of the ways of dealing with long term care issues is to purchase long term care insurance.

Long Term Care Expenses

In the Metropolitan New York area, nursing home expenses run between $10,000 to $12,000 per month.  On an annual basis, that is $120,000 to $144,000 per year.  Few Americans are financially able to meet a financial burden of this size.  One aspect of long term financial planning should deal with the issue of long term care.  Long term care insurance is a possible solution to this problem.  Unfortunately, only approximately 15% of the American public buy long term care insurance.

There are a variety of strategies seniors can use to deal with the threat of long term care expenses.  The following are some of these strategies:

  • Long term care insurance.  If you purchase a policy when you are in your mid-fifties, it can be purchased relatively inexpensively considering the potential benefits available.
  • Set aside a substantial amount of your investments in case you have long term care expenses.
  • Look into lower cost alternatives to nursing homes.  An example of this is residential care facilities for seniors.
  • Live close to a family member who would be in a position to take care of you.
  • Have a portion of the equity in your home held in reserve.  In case of an emergency this could be utilized for long term care expenses.
  • Hire an experienced elder care lawyer and set up your finances and your estate in a manner which allows you to qualify for Medicaid, either for home healthcare aides or nursing home care.

Relying on Relatives

Most seniors do not want to become burdens upon their children.  A senior being cared for by a child could have a negative impact on the ability of the child to work or develop a successful career.

Conclusion

I am a member of the National Academy of Elder Law Attorneys.  I find the very best way to deal with long term care issues is to have long term care insurance.  However, an alternative is to do estate planning with an experienced elder law attorney.  You can move all of your assets out of your name into a trust more than five years prior to going into a nursing home.  This will allow you to qualify for Medicaid.will and estate attorney on Long Island

Woman Leaves Money To Her Cat, Court Determines Testamentary Capacity

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been handling estate litigation, wills, trusts and other issues pertaining to estate planning for more than 35 years.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Scams Targeting Senior Citizens

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Elliot S. Schlissel is an elder law attorney with more than 35 years experience.  He and his associates represent clients with regard to wills, trusts, estate planning and probate administration.  He can be reached for consultation at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email to schlissel.law@att.net.