Elder law estate planning

What are the Marital Inheritance Laws in New York?

Published on: August 14, 2017 | by Ettinger Law Firm

A last will and testament spells out the final wish of the deceased, including how he or she wishes to allocate assets amongst friends and family. However, there are certain limitations to the extent deceased spouses may effectively cut out their surviving spouse from a will. Under New York estate laws, like so many other states, surviving spouses have certain claims to assets that cannot be undone by a will.

If an individual attempts to leave his or her spouse completely out of a will or only leave the surviving spouse a small amount, New York probate courts, known as Surrogate Courts, will step in and apportion a large part of the estate regardless of the text of the will. This is because just like in divorce, spouses have certain rights to community property like homes, cars, and bank accounts.

When someone passes away, with or without a will, all heirs with legal claims to the estate like spouses and children must be notified by the court. Next, the executor of the estate will need to find these persons and ask each of them to sign a waiver giving up their right to challenge the estate. Typically, this is no problem since close family members with estate claims are usually already mentioned in the will and the estate is apportioned fairly.

Is your Home Prepared for your Golden Years?

Published on: August 1, 2017 | by Ettinger Law Firm

As we all know, aging presents a new and unique set of challenges each of us will face as we grow older. Despite that, most of us expect to remain in our homes and continue living with the independence we enjoyed for our adult lives. While it is certainly possible to maintain a high level of independence in our older years at home, there certain considerations we should always take into account to ensure we live in a safe and healthy environment.

First, before considering anything about your home, you should have your estate in order. No matter how young you may be, we all need a last will and testament and instructions in case of an unforeseen event. Once you have taken care of your estate, either through a will or a trust, you are ready to start thinking about ways to ensure your home is accommodating to your changing lifestyle.

If you are one of the many people with mobility issues, you will want to consider installing aids around your home to make getting around the house easier. Even once simple tasks like showering and going up and down stairs can become a challenge in old age. Some home mobility modifications you will want to think about are grab bars, bath chairs, and life chairs.

Conditional Bequests and Devisements

Published on: July 21, 2017 | by Ettinger Law Firm

The law generally gives benefactors great leeway to set conditions for beneficiaries to inherit assets from an estate or trust. This is because the benefactor has every right to disperse his or her assets while beneficiaries have no such right. Often called “dead hand control,” these conditions are often meant to promote a certain type of lifestyle or at the very least prevent beneficiaries from harming themselves with the wealth passed on.

When conditional bequests and devisements are attached to a last will and testament, probate courts rarely concern themselves with whether the conditions are fair to heirs or even wise to try and implement. Rather, probate courts function to ensure proper transfer of assets and that the deceased’s wishes are carried out.

Some situations where benefactors may attempt to impose certain conditions for inheritance can include requiring an alcoholic seeking treatment, children and grandchildren holding down steady jobs, or even finishing school before collecting inheritance. Unfortunately, theses of demands rarely work out beneficiaries sometimes would rather choose to follow their free will than comply with demands of morality or industriousness.

What are the Tax Rules of Gifts to Grandchildren?

Published on: June 20, 2017 | by Ettinger Law Firm

All grandparents want the best for their children and grandchildren and many take the initiative to set aside part of an estate to help future generations get a head start in life. Forward thinking grandparents should also be aware there are certain tax and entitlement benefits rules seniors need to follow to remain in compliance with the law in order to avoid jeopardizing many of their own assets.

First, grandparents need to know the Internal Revenue System (IRS) places a $14,000 limit on untaxable gifts each year to individual grandchildren. Married couples may each give up to $14,000 to each and every grandchildren without any taxes, making the total $28,000 per year. Grandchildren receiving these gifts will not have to pay any income tax of these gifts, unless the assets generate income.

Additionally, grandparents can make direct payments to doctors and educational institutions to cover services on behalf of their grandchildren. The IRS does not consider payments for medical treatment and education as gifts subject to tax and grandparents can still give up to $14,000 each per year to their grandchildren without worrying about gift taxes.

Are Illegitimate Children Considered Beneficiaries?

Published on: February 24, 2017 | by Ettinger Law Firm

The legal rights of illegitimate children and their ability to take under the terms of a trust have for years been the subject of many litigation proceedings. Illegitimate children are traditionally known as children who are born out of wedlock or to unmarried parents, however, the most widely known cases are those children who were born as the result of an affair by either or both parents. When one parent is the beneficiary of the grantor of a trust, the other spouse of the child, when old enough, may try to assert claims that they are also entitled to access the trust due to blood relation.

How Does an Illegitimate Child Take?

While traditionally under common law, an illegitimate child was not seen as a legal child of either parent, with no right of parental support or right of inheritance, today the laws have changed to better reflect the rights of an illegitimate child. Although states differ regarding their laws on wills and trusts, many now favor giving children rights, under statutes such as The Status of the Children Act as well as the Equal Protection Act. Under the Status of the Children Act, there is a presumption that any reference to children not further defined in a will includes both legitimate and illegitimate children, regardless of their relationship to the father.

Death Tolls Rise in Winter Months

Published on: January 26, 2017 | by Ettinger Law Firm

Winter months are difficult on many of those who live in areas that experience great seasonal changes. The National Center for Health Services actually found that death rates are twice as high in the winter than the hottest part of summer. Not only do we have bundle up and face the chilling weather, there is also a major threat of seasonal illness.

Thus, it is not surprising that individuals have the highest risk of dying from natural causes in the end of December and beginning of January. In fact, one study showed that those who die from natural causes, circulatory problems, respiratory diseases, nutritional/metabolic problems, digestive diseases and cancer have a greater chance of dying between Christmas and New Years than any other time of year.

Not Just in America

Death with Dignity Act Gains More Approval

Published on: January 19, 2017 | by Ettinger Law Firm

Physician assisted suicide has been a controversial topic across the world, however as the reasoning behind it becomes better understood, many countries have chosen to legalize the practice for reasons outside of terminal illness. In the United States, in the past few decades, the public began to take notice with news headlines such as those regarding Dr. Jack Kevorkian, the Michigan physician who helped assist numerous patients chose when they would die from terminal illnesses and subsequently served eight years for his acts.

Today, physician assistance in dying is legal in Washington, Vermont, Montana, Oregon, with California recently signing in their aid in dying legislation in June 2016, Colorado approving a ballot measure in the most recent November 2016 election by two thirds majority, as well as the District of Columbia signing in their version of the same aid in dying law in December 2016. With a not so surprising passage of these laws comes the realization that Americans as a whole see the reasoning or at least themselves would want the option, in the circumstance they were to become terminally ill.

What is different with the United States’ various aid in dying laws in place is that they are all for those patients that are terminally ill, requiring certain validation steps through physicians and therapists.

Injuries from Hot Water Scalding Led to Patient’s Death

Published on: January 7, 2017 | by Ettinger Law Firm

When we place our loved ones in the care of a nursing home we expect that they will be properly treated and cared for. Sadly, there are many instances where negligent care is given. In one recent case, a nursing home resident was seriously injured after being scaled by hot water that was spilled on her. The woman’s health declined and she died. A representative for the woman’s estate has filed a lawsuit in stating that they did not provide proper care to her.

Burns Can Be Serious

Burns to the skin can occur for a number of reasons. In this case, the woman suffered burns due to hot water that was spilled. The nursing home staff allegedly did not properly supervise the woman while under their care. The woman sustained severe physical injuries that contributed to her death. Burns are painful, and may become infected, causing other medical problems. In this instance, the lawsuit alleges that the burns were quite severe and indeed led to the woman’s decline in health, and subsequent death.

The Importance of a Will: The Differences in the Estates of David Bowie and Prince

Published on: November 19, 2016 | by Ettinger Law Firm

David Bowie’s Estate

This year, we lost two music icons. While the death of Prince came as a surprise to the music community, David Bowie lost his battle with cancer. It was not surprising that David Bowie’s estate was left with almost $100 million dollars, a very large sum of money that was all properly distributed according to the terms of his will. Bowie outlined his wishes in his will, that was made over a decade ago, which even stating how he wanted to be cremated. The star died on January 10th, 2016, and in accordance with the terms of his will, his last wishes to be cremated were followed, on January, 12th. The will not only outlined how to distribute the estate, but also how and when funds set aside in trusts were to be distributed to his wife and children.

Additionally, the making of this will has provided a straightforward method to determine how future earnings from his music, past as well as unreleased, will be distributed. Bowie recorded a final few songs which are set for release at specific times in the future.

How to Disclaim Inheritance

Published on: October 4, 2016 | by Ettinger Law Firm

Claiming inheritance upon its distribution is something that many individuals welcome and conversely is the source of many family disputes. There are many reasons why someone may want to refuse their bequest however, in a process in estate planning referred to as disclaiming inheritance. Some beneficiaries seek to disclaim their inheritance due to their personal wealth, whether wealthy or poor, for tax reasons, or to pass the gift on. In estate planning, if you decide to disclaim your gift or bequest, you will be treated as if you died before the grantor did, and your share is redistributed according to the terms of the will.

Examples of Why You May Consider Disclaiming

Estate taxes can be particularly hefty and if disclaimed, the gift or bequest would pass to the next of kin, who may be more willing to take on the potential tax burden. In years past, disclaimers have been used a stopgap measure after the estate tax expired in which the first million in assets valued from an estate is exempt and assets thereafter is levied at 55%. Once the tax expires, there are sometimes unintended consequences which end up negatively impacting the estate of the beneficiaries.