New York Estate Planning & Elder Law Blog

Putting Conditions on a Trust in New York

Published on: May 13, 2014 | by Ettinger Law Firm

For many New Yorkers, the term ‘trust‘ continues to invoke visions of the super wealthy. Similarly, terms like “trust fund baby” are used to refer to spoiled, rich individuals who do no work on their own and simply live off their parents savings. The connotation is always negative.

As our estate planning attorneys often explain, however, trusts are critical tools for families of all income levels. And there is no reason why children who benefit from the trust suddenly become slovenly or without their own motivations. For one thing, many trusts are not large enough to offer income that can last a lifetime. Even when the trust is large, conditions can be placed on child-beneficiaries which can help prevent them from relying solely on an unlimited stream of income.

Incentivizing a Trust in New York

Life Estates: Rarely the Best Option to Protect Parent’s Home

Published on: May 12, 2014 | by Ettinger Law Firm

It is a common problem for New York residents: how to protect your ailing parents’ assets. For many families, the largest asset is the family home. Many seniors spent their entire lives pouring money into their home, with property rates increasing over the years, the home is a significant asset to be passed on to heirs. At the same time, if the senior does not have long-term care insurance, there is always the risk of the home being lost to pay for a nursing home or other support services.

The Life Estate

After first considering the risk, many adult children who are unfamiliar various elder law and estate planning tools attempt rudimentary protection efforts. For example, the adult son or daughter may convince their parent to sign a new deed, giving ownership of the home to the child. This seemingly avoids having the transfer go through probate and may protect the home from some long-term care costs (though this is not always the case).

Prenuptial Agreements in NY – Part 2: Challenging The Validity Of A Prenuptial Agreement

Published on: May 9, 2014 | by Ettinger Law Firm

To challenge the validity of a prenuptial agreement, one looks to see if any of the above elements were abused or not satisfied. This can include–

1. Duress- A prenuptial agreement can be voided if one party was pressured or coerced into signing it. Duress also can be shown if the agreement was presented too closely to the wedding date and is not given enough time to think about the terms of the agreement before signing it. Some sources suggest that agreements signed within 60 days of the wedding may be challengeable based on duress. For example, duress has been shown where the wedding is only days away, the invitations have been sent, large sums have been expended, and cancelling the wedding would be costly and embarrassing. Another example is a case where the groom presented a prenuptial agreement just before the bride’s visa was to expire and told her to sign or the wedding would not take place prior to the visa’s expiration date.

2. Lack of mental capacity- Lack of mental capacity can be shown if the agreement was signed when one party was drunk or under the influence of drugs.

Elder Financial Exploitation- A Fancy Term For Financial Abuse Of The Elderly

Published on: May 8, 2014 | by Ettinger Law Firm

Elder financial exploitation is a nuanced term for a growing problem–the financial abuse of the elderly.

Financial abuse of the elderly is a growing concern in today’s society. There are more senior citizens now than ever before and many of them are institutionalized or require help to get by in life. These dependent situations create an environment where the elderly can be taken advantage of financially.

What Is Financial Abuse?

Prenuptial Agreements in NY – Part 1: Enforceability

Published on: May 8, 2014 | by Ettinger Law Firm

Every year, over 2 million people get married in the United States. In the same year, almost 900,000 people get divorced. Broken down even further, approximately 50% of all first marriages, 67% of all second marriages, and 74% of all third marriages end in divorce. With these statistics, it should be of little surprise that the use of prenuptial agreements is on the rise. However, one surprise may be that more agreements are being requested by women.

In New York, the state statutes have little to say about prenuptial agreements. Section 3-303 merely says, “A contract made between persons in contemplation of marriage, remains in full force after the marriage takes place.” This is because prenuptial agreements, by their nature, are highly customized and tailored to the couple who is entering into it.

In general, a valid prenuptial agreement requires the following–

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