New York Estate Planning & Elder Law Blog

Mississippi Court Decides Application of Slayer Statute to Mentally Disabled Person for First Time

Published on: August 3, 2015 | by Ettinger Law Firm

In 2010, John Armstrong, a Mississippi man suffering from severe schizophrenia, delusions and paranoia, killed his mother, Joan Armstrong, by bludgeoning her repeatedly with a brick and stabbing her multiple times in the stomach and chest. Due to his severe mental illness the criminal court found him incompetent to stand trial, and instead he was placed in a psychiatric hospital for lifelong treatment.

What are Slayer Statutes?

Most U.S. states have some version of “Slayer Statute,” which precludes someone from inheriting from an estate if he or she caused the person’s death. Some states vary, however, in how they apply the rule. For instance, in some jurisdictions, the killing must be intentional or willful. In others, even negligent and reckless conduct that causes the death would preclude the person from receiving their inheritance. Texas does not have a slayer statute.

Duke of Earl Involved in Long Probate Battle Over Alleged Fraud and Undue Influence

Published on: August 3, 2015 | by Ettinger Law Firm

Gene Chandler (aka Eugene Dixon) was one of the more prominent figures in mid-Twentieth Century Soul and R&B. In 1962, he released his biggest hit – The Duke of Earl. Following this award winning number one billboard hit, he began to refer to himself as the Duke of Earl. However, according to court documents in Cook County, Illinois, the Duke of Earl had a very troubled life, from felony convictions for Heroine possession to fathering well over 20 children by many women. Late in life, he married a wealthy real estate mogul, Lilli Kinnard, who already had children of her own.

Just before his wealthy wife passed away from cancer, her will mysteriously was changed to entirely disinherit her children, leaving millions to the Duke. In fact, the new will made no mention of her children and instead named several of Chandler’s children from prior relationships as successor executors. Even more shocking, the attorneys who drafted the new will were the same ones that helped the Duke negotiate his prenuptial agreement with Kinnard.

Today, Chandler is still embroiled in an ongoing will contest case and several supplemental proceedings involving allegations of fraudulent transfers of business and real estate assets, unlawful attempts to defraud creditors, and undue influence. This case, however, teaches a couple invaluable lessons.

State Supreme Court finds Conflict of Interest Where Personal Representative Used Estate Property to Operate Decedent’s LLC After Death

Published on: July 29, 2015 | by Ettinger Law Firm

When a business owner passes away, there are inevitably additional concerns for the estate. For instance, should the business be closed, or should the business continue to be operated by surviving family members? How should the company’s assets be distributed among heirs? Experienced New York elder law attorneys can assist in making these difficult decisions and minimize the risk of problems like what occurred in recent Georgia case involving just this situation.

In a recent decision from the Georgia Supreme Court, James Myers, Sr. died, leaving his son, Anthony Myers, as his executor. Unfortunately, Anthony began using estate assets for personal gain, and soon his brother brought an action in the probate court to return the misappropriated funds and to remove Anthony as representative. The Supreme Court found that indeed Anthony had mishandled the estate. The following are some of the important lessons for executors.

The language of a company’s operating agreement or articles of organization control what should happen upon an owner’s death

Why Consider a Special Needs Trust?

Published on: July 28, 2015 | by Ettinger Law Firm

Supplemental Needs Trusts (also called Special Needs Trusts) have become fairly popular in recent years. These trusts are designed to protect a disabled person’s assets in order to ensure the greatest amount of funds available for care and support. In 1993, Congress passed legislation in 42 U.S.C. § 1396 et seq. that specifically allows a disabled person to exempt assets from public aid determinations. You can click here to read more about how the government treats these unique trusts. One look at the complex federal regulations that control these trusts should be reason enough to consult an experienced elder law attorney to find out if it is right for your situation.

How much money can a disabled person keep and still be eligible for public aid?

In general, for a person to qualify for Medicaid, he or she must be impoverished. This means having less than $2000 in personal assets. Previously, there were fairly strict provisions that made it difficult for a disabled person to keep assets and still qualify for Medicaid funding of long-term care. Nursing home and rehabilitation costs can be exceedingly expensive, and people are often concerned that a disabled family member could quickly spend all of their assets on care and support before qualifying for government assistance.

Joint Accounts are no Substitute for Quality Estate Planning – Part 2

Published on: July 24, 2015 | by Ettinger Law Firm

How does joint tenancy avoid probate?

Let’s use a simple example: the family home. When an aging widow places her home in joint tenancy with an adult daughter, they both immediately are entitled to possession and ownership. Each has the same rights. If the property is rented, each is entitled to the entire rent equally. Therefore, the law generally considers the widow’s action as a gift to her daughter. Likewise, upon the widow’s death, the house is immediately the sole possession of the daughter and not part of the probate estate. In other words, it passes outside of probate.

So what is wrong with joint tenancy?

Joint Accounts are no Substitute for Quality Estate Planning – Part 1

Published on: July 22, 2015 | by Ettinger Law Firm

Estate planning attorneys are frequently asked a troubling question: what’s the quickest, cheapest, and easiest way to just avoid probate altogether? Of course, you can never expect an attorney to provide a blanket response to that question. It is similar to asking your doctor, “What’s the quickest, easiest, and cheapest way to avoid heart disease?” The answer in both cases will undoubtedly depend on many things. For the doctor to give an informed response, he or she would need to perform blood tests, get some idea of your history, lifestyle choices, eating habits, family history, and so forth.

The same is somewhat true of offering a comprehensive estate plan. It is, after all, designed to protect you and your family later. So, your attorney will likely need to know your net worth, what real estate you own, your relationship with your children, siblings, and other relatives, your goals, career, income, and your level of health. These are just a few of the issues that go into deciding how to properly establish your estate plan. This warrants discussion, because people continue to find themselves engulfed in painful litigation against their own family, often despite good intentions.

Every year many Americans are fooled into choosing quick fixes to “avoid probate.” In many ways, a complete misunderstanding of the probate process has perpetuated this mentality. In fact, web-based “self-help” legal services are often the worst culprit. But if handled properly by an experienced attorney, probate can be a powerful and straightforward process for settling a decedent’s affairs. Some sadly choose to simply open joint bank accounts with an adult child or close friend and then place all of their money in those accounts with simple instructions regarding how they want the money spent upon death. Many people also do the same thing with their homes, automobiles, and other types of property, thereby completely avoiding probate. But this is not a wise strategy.

Techniques for Coping with Caregiver Stress – Part 1

Published on: July 21, 2015 | by Ettinger Law Firm

With an aging population, more adult children are finding themselves faced with the difficult dilemma of caring for aging parents. In fact, the Centers for Disease Control estimate that nearly 34 million Americans provide caregiver services to someone over 18 who suffers from illness or disability. Roughly 83% are family members. This means there are approximately 28.2 million unpaid family caregivers providing these services to loved ones every year.

While caring for an elderly loved one can be a rewarding endeavor, it is not without its complications. This is especially true when it comes at the peak of one’s careers or perhaps while still raising minor children. Unfortunately, AARP only about 61% reach out to friends and family for help. But there is hope.

What is caregiver stress, and how do I recognize it?

How NOT to Avoid Estate Taxes: The Scholarship that wasn’t a Scholarship

Published on: July 20, 2015 | by Ettinger Law Firm

Julius Schaller was a Hungarian-American immigrant was a wealthy grocery store owner who had acquired substantial assets that exceeded the threshold for paying estate taxes. In order to avoid the tax burden, he established a special scholarship foundation for Hungarian immigrants who pursue performing arts. He named it the Educational Assistance Foundation for Descendants of Hungarian Immigrants in the Performing Arts. Estate planning attorneys often create such organizations for wealthy individuals. However, it must be a legitimate nonprofit organization.

The foundation was established as a nonprofit organization and granted tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. But there was a catch. The foundation was a rouse. It hardly advertised the scholarship, and during the first two years of operation, the scholarships were only awarded to his heirs – specifically a nephew, niece, and another member of the family. This is a problem.

The IRS does not take kindly to those who set up fake organizations under the guise of providing a legitimate scholarship or philanthropic service to the public. As such, the IRS revoked the foundation’s nonprofit status, and litigation ensued.

FINRA Issues New Alert for Estate Planning

Published on: July 17, 2015 | by Ettinger Law Firm

The Financial Industry Regulatory Authority (FINRA) issued a new alert regarding the transfer of brokerage accounts upon death. This report has important information for people who are considering using brokerage accounts as part of their estate plans. The alert informs current brokerage account holders, family members, and their other beneficiaries about the processes involved when the account holder passes away.

What is FINRA?

FINRA is the largest independent regulator in the world for all securities that do business in the United States. The organization’s main purpose is to provide investor protection and ensure market integrity through effective and efficient regulation. Some of FINRA’s responsibilities include registering and educating industry participants, examining security firms, writing and enforcing rules, and educating public participants in the market. FINRA also offers dispute resolution for security firms and participants in the securities market.

New LGBT Training for Elder Care Service Providers

Published on: July 17, 2015 | by Ettinger Law Firm

A recent study at the University of Miami found that nearly 75% of all elder care service providers reported having members of the LGBT community as clients. Yet, less than 33% of these service providers had any type of specialized training geared towards the needs of seniors in this community. This study has prompted a new initiative in Florida called the “Protect Our Elders” campaign, aimed at addressing common problems that prevent elderly members of the LGBT community from seeking elder care.

Results of the Study

The University of Miami surveyed 48 facilities and agencies throughout southern Florida that provide some type of elder care services. This included hospitals, nursing homes, care facilities, churches, libraries, and more. Of those surveyed, 83% of the facilities and agencies said that not only would they be willing to offer LGBT training but that they also think that their employees would be interested.