New York Estate Planning & Elder Law Blog

Common Reasons for Contested Wills in New York

Published on: May 2, 2014 | by Ettinger Law Firm

Many people know that having a will is necessary in order to properly ensure the deceased’s wishes are followed and desired transfers are carried out once they are gone. However, the importance of having the proper documentation in place does not end there. Careful estate planning is crucial to a will being upheld as valid in the event it is contested. If estate planning documents are not properly executed, the document is in danger of being challenged and may be ultimately revoked.

Common Challenges to a Will

An estate planning document such as a will may be contested for a number of different reasons. Perhaps heirs are not satisfied with their inheritance, or maybe family members fear their loved one made a bequest against their will. No matter the reason, the fact remains that wills do get challenged. Some of the more common challenges involve the following:

Back to the Basics: What is the Difference Between Revocable and Irrevocable Trusts?

Published on: May 1, 2014 | by Ettinger Law Firm

While many New York residents familiar with and have an existing will in place in the event of their death, most people do not realize that estate planning documents extend far beyond a last will and testament. The world of estate planning documents includes not only living wills and advanced medical directives, but also trusts. Trusts offer several benefits associated with them, and come in two forms: revocable and irrevocable.

Benefits of Having a Trust

Trusts can not only provide for loved ones upon death, but they can provide for the person who created the trust during their lifetime. This is important in cases where the creator has a health issue, a mental disability or incapacitation, and other scenarios. Trusts can be administered without the need to involve a probate court, and can therefore protect privacy as to the contents of the trust. Trusts also serve as protection of assets for trust beneficiaries, and offer a wide variety of options in creating them to suit different needs.

Be Aware of Cemetery Rules & Guidelines

Published on: April 29, 2014 | by Ettinger Law Firm

Delineating funeral and burial wishes is a common part of estate planning. Everyone has unique desires about their final resting places, incorporating personal, spiritual and religious preferences. In addition, the perspectives of surviving family members are also taken into account. That is because spouses and children may wish to remember their loved one in various ways. For example, it may be important for family to have a specific place, such as a memorial or cemetery plot where they can go to honor one’s memory.

Unfortunately, when few plans are in place ahead of time, families may be forced to rush these decisions. Mistakes can be made, which lead to disappointment, regret, and sometimes even more conflict.

Memorial Feud

New 2014 Cost of Long-Term Care Study Released

Published on: April 28, 2014 | by Ettinger Law Firm

Residents throughout New York continue to experience “sticker shock” when exploring their long-term care options. Whether you are planning for possible needs in the future or working quickly to secure support for an ailing loved one, there is a good chance you may be surprised by the overall costs of this care. Naturally, there is a spectrum of care–from occasional, at-home aides to a move into a skilled nursing home. And there are wide variances in quality among specific caregivers. In most cases, however, the overall cost is quite significant, particularly in a relatively expensive state like New York.

The Cost Data – 2014

A helpful starting point to understand the financial toll of long-term care is to examine the newly released 2014 Cost of Care Survey from Genworth. This particular survey has been conducted for over a decade, allowing an understanding of year over year trends on top of providing information on current costs.

Dispute Over Documents Settled Between Harry Belafonte & MLK Estate

Published on: April 25, 2014 | by Ettinger Law Firm

Even after a loved one is gone, disputes over his or her estate can continue to arise. For example, nearly forty-six years after the 1968 assassination of Martin Luther King, Jr., his estate is still involved in legal battles. Most recently, the King estate was in conflict with singer and activist Harry Belafonte over documents Belafonte claims were given to him by King and his widow, Coretta Scott King. Among the documents are an outline of an anti-Vietnam War speech written in 1967, a letter of condolence from President Lyndon Johnson to Coretta, and notes to a speech that King was never able to deliver.

The dispute first arose when Belafonte made plans to auction off the documents to the highest bidder at Sotheby’s, Inc. In response, the King estate took legal action that resulted in Belafonte’s being blocked from selling the documents. Belafonte in turn brought suit in federal court against the King estate. Ultimately, the parties reached a settlement, the terms of which are confidential. It is known, however, that Belafonte will be able to retain possession of three of the documents in question. In a joint statement, the parties’ respective lawyers conveyed a message of mutual satisfaction: “The parties express their appreciation to one another for the good -faith efforts that led to this resolution.”

Intra-Family Disputes

Pet Trusts, Dementia, & Senior Exploitation

Published on: April 24, 2014 | by Ettinger Law Firm

Seniors suffering from Alzheimer’s disease or dementia are at an increased risk of financial exploitation. Each health condition results in a progressive cognitive impairment that can be taken advantage of by the unscrupulous. As a recent true story from Massachusetts illustrates, Alzheimer’s disease can render seniors susceptible to even the most strange of schemes.

A 74-year-old Massachusetts woman suffering from progressive dementia and living in a nursing home has a pet named Puddy Cat. Puddy Cat is so dear to the woman that she created a trust in the animal’s name worth nearly half a million dollars. This “Puddy Cat Trust,” created in the woman’s will, provided that, upon her death, Puddy Cat was to be cared for through the trust and that all remaining assets were to be used for the benefit of animal welfare groups.

Seeing an opportunity to profit at the expense of the woman and Puddy Cat, two neighbors made efforts to befriend the woman and offered to take care of the feline. The pair are accused of swindling the woman out of her life savings, and Puddy Cat out of its inheritance, and they have been charged with embezzlement, larceny, intimidation, and perjury. They allegedly gained access to the woman’s financial assets and bank accounts, withdrawing nearly $200,000 in a 12-month span. The money was not used to care for Puddy Cat, as the two promised, but rather for a prolonged spending spree.

Adult Guardianship in New York – The Basics

Published on: April 23, 2014 | by Ettinger Law Firm

Adult guardianship concerns the laws governing a person’s capacity to manage their own affairs and their own estate. The law presumes that a person possesses this capacity. Therefore, satisfying the legal criteria sufficient for a finding of incapacity is prerequisite to the formation of a guardianship.

Capacity

There is no single, universal definition of capacity. Often, the term “competency” is used interchangeably with capacity, though the modern trend is to prefer the latter. The meaning of the word derives from the context in which it is considered; it cannot be determined in the abstract. An individual’s capacity or incapacity generally must be determined in relation to his or her ability or inability to perform a specific function or act. Because an individual is capable of performing an astonishing number of different functions and acts, a person may have the capacity to do A, B, and C, but not X, Y, and Z. Further illustrating the complexity of the concept is the fact that capacity may be defined differently, depending on whether the context is legal, social, or medical. In terms of legal standards, a determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because:

What is “Donor Intent” & How Does It Affect a NY Estate Plan

Published on: April 22, 2014 | by Ettinger Law Firm

Charity is an important part of an estate plan for New York families. Many residents have important causes that symbolize their own values and morals, including social, political, economic and religious non-profit groups. Donating funds via a will or trust is common for estates of all sizes–this is not just for the wealthy. Even relatively small donations can have a significant impact. In addition, giving funds to valued causes is a key way to pass on a final lesson to future generations.

There are many different ways to give assets to a charity at death. In the simplest form, funds can be given for the charity to use in any way it chooses. However, many donors have more specific wishes, often wanting to direct funds for very specific uses.

Understanding Donor Intent

Undue Influence in NY & Pressuring Vulnerable Seniors

Published on: April 21, 2014 | by Ettinger Law Firm

Family feuding is all too common, and finances are often at the root. One argument often made in legal cases involves these matters is that an adult child or other close relative is abusing a position of trust and confidence with a parent to take advantage of them financially. Proving such an abuse is the challenge of an undue influence lawsuit.

Undue influence is usually defined the use of confidence for the purpose of taking unfair advantage of one with a weakness of mind (or other vulnerability). In other words, undue influence is about pressure. The question is when does pressure become excessive, and thereby amount to undue influence. In a legal case where undue influence is an issue, a court may consider a number of factors:

1. Unusual or inappropriate time of discussion of the transaction;

Good News for NY Medicaid System – Agreement Reached with Federal Government

Published on: April 18, 2014 | by Ettinger Law Firm

Uncertainty reigned over the last few months regarding the budget situation for the New York Medicaid system. Fortunately, an agreement has been reached which should provide more long-term stability and the ease the minds of both policymakers and NY residents alike.

The underlying problem was claims by the federal government that over a period of years New York engaged in improper billing practices. The mistakes led to billions of dollars being paid to the state that should not have been paid. After discovering the problem, federal officials initially claimed that the money needed to be re-paid. All told, this would amount to nearly $15 billion being drained from state coffers that otherwise would provide support to local residents. No matter which way you slice it, losing those funds would hurt New York Medicaid participants, including seniors.

Settlement Agreement