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.

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

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

Challenging a Will

estate planning lawyerWills can be challenged by potential heirs when they are of the opinion they have not received what they are entitled to from the estate of the decedent. Wills can also be challenged with regard to the handling of the administration of the estate by the executor.

The Probate Process

When an individual dies, the process whereby a court determines the validity and/or acceptability of the Will is called the probate process.  During a probate proceeding, a loved one or other heir can appear in court and challenge the Will. There has to be an appropriate statutory or case law basis for challenging the Will. The general feeling that the individual should have received a greater portion of the decedent’s assets is not sufficient to be successful in these proceedings. Some of the bases for challenging a Will are as follows:

  1. Lack of testamentary capacity. There is a requisite amount of mental acuity necessary for an individual to prepare a Will. Individuals who are on medication, have debilitating illnesses, or are suffering from Alzheimer’s, dementia, or other illnesses which affect one’s mental acuity at the time the Will is executed can be a basis for challenging the Will.
  2. Undue influence or fraud. In these situations the individuals challenging the Will can show that a caregiver or other individual exercised such dominion over the senior citizen that he or she did not have free will or ability to make an independent decision with regard to who would be the appropriate beneficiaries of his or her estate. The individual challenging the Will must show the decedent was tricked into making the Will or that his or her wishes are not what is written in the Will.
  3. The Will was not properly executed. New York State has very specific requirements with regard to the appropriate manner to prepare a Will, execute the Will, have the Will witnessed and signed by the decedent. The decedent has to acknowledge before the witnesses that this is his or her Will and it carries out his or her wishes. In cases where the Will was not properly executed or prepared by an attorney familiar with the appropriate statutory formalities concerning the execution of a Will, the Will can be challenged based on the failure to comply with the appropriate statutory execution provisions.
  4. The Will was forged. In cases involving forgeries the next of kin of the decedent must prove to a court that his or her signature on the Will is false and not that of the loved one who has passed away.

Determination in the Probate Process

During the course of the probate process, the court will entertain any of the aforementioned arguments concerning the validity of a Will and other arguments which are raised. The court can set the entire Will aside or just set a portion of the Will aside. Hopefully either you or other family members will not be forced to experience the difficulties involved in challenging a Will.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has represented individuals concerning Will contests throughout the New York area for more than 35 years.

Guardianship Proceedings

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

https://youtu.be/adD-G285k9M

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 guardianship proceedings, 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.

Living Wills

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

https://youtu.be/mjMKRzadRSk

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

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