New York Estate Planning & Elder Law Blog

What Happens When a Will’s Language is Inconsistent with the Titling of an Account Held with Survivorship Rights?

Published on: November 21, 2019 | by Ettinger Law Firm

A common question asked of us is what happens when a will’s language is inconsistent with the titling of an account held with survivorship benefits? The immediate answer to the question is that the titling of an account will control over a will’s language. The practical effect on the survivor or beneficiary of the account, if there is a discrepancy with the name or a name has been changed, is to challenge the titling of the account in probate proceedings.

When an account is held with survivorship benefits to another account holder, how that account is titled may mean one of two things. Ideally, the named beneficiary, by operation of law, should automatically receive the contents of the account. If the titling is wrong or incorrect, legal intervention will be necessary to correct the account titling. In almost all cases, the account title will supersede any instructions to the contrary in the deceased person’s or maker’s will.

Why do people set up accounts with survivorship rights?

Advice on Handling Specific Bequests in Wills

Published on: November 20, 2019 | by Ettinger Law Firm

The Supreme Court of Montana recently affirmed a judgment by the district court distributing assets from a trust established by a husband and wife to the couple’s three children.

The district court had interpreted the trust creator’s handwritten codicil as a wish and not a specific bequest of the woman’s stock in a company that the couple had created and grown. Before the husband’s death in 1993, the couple executed identical wills under which the assets of the first spouse to die passed into a trust with the assets in the trust intended to be distributed equally between the three children of the surviving spouse.

As a result of the Supreme Court’s decision that the codicil was lacking in testamentary intent to specifically devise shares, this specific bequest was not passed on.

What You Should Know About the New York Survivor’s Benefit Program

Published on: November 18, 2019 | by Ettinger Law Firm

The Mississippi Court of Appeals recently decided that a man convicted of DUI manslaughter that led to the death of his wife can collect survivor benefits from the state. The late woman had designated her husband as a 40% beneficiary while the deceased woman’s sister was a 60% beneficiary. While Mississippi law permits spouses in the husband’s situation to still receive benefits, some states have prevented this type of result by altering statutory language. The husband previously pleaded and was sentenced to 25 years in prison with 10 years suspended and 15 to serve. The man later received a separate two-year sentence for possession of contraband.

While the Mississippi Court’s decision might seem strange, it emphasizes the importance of understanding the basics about the New York Survivor’s Benefit Program, which will be briefly reviewed in this article.

The Role of the New York Survivor’s Benefits Program

Can Debt Collectors and Creditors Garnish My Retirement Benefits?

Published on: November 17, 2019 | by Ettinger Law Firm

More seniors than ever are carrying high debt into retirement. Managing high debt simultaneously with managing the cost of daily living and medical care on a fixed income is a recurring problem in many households. The amount of debt burden has skyrocketed over the past decade.

The National Council on Aging commissioned the Survey of Consumer Finances to study debt and how it impacts seniors economic security. The key findings are listed below:

Percentage of households headed by an adult 65 or older with any debt increased from 41.5% in 1992 to 51.9% in 2010 and then to 60% in 2016.

Important Estate Planning Steps to Take after a Parent’s Death

Published on: November 15, 2019 | by Ettinger Law Firm

Losing a parent is not easy. While being prepared for the event might not make the emotional aspect any easier, it can help to eliminate the potential for additional problems. As a result, this article reviews some of the important financial steps that you can take after a parent passes away.

# 1 – Determine if Your Parents Had an Estate Plan

The position of managing a parent’s estate after their death can be made much easier if a parent had an estate plan. Ideally, a parent will organize all of their estate documents in an easy to find but secured location. The best estate plans include wills that address how assets should be handled, dispositions of last remains regarding how a parent’s remains should be disposed of, and several other documents.

Why More than Wills Are Necessary for Estate Planning

Published on: November 13, 2019 | by Ettinger Law Firm

Wills play an important part in the estate planning process. The best estate plans, however, include more than wills. Instead, the best estate plans anticipate the numerous complications that can arise at the end of a person’s life.

Advance Healthcare Directives

Medical powers of attorney and living wills serve an important role that wills simply do not touch. A medical power of attorney can be used to appoint someone to make healthcare decisions in case you become incapacitated. A living will can be used to determine what type of life-prolonging measures you would like if you end up on life support.

What to Do When a Loved One Passes (The Survivor’s Guide)

Published on: November 12, 2019 | by Ettinger Law Firm

Settling an estate, after the loss of a loved one while grieving, is a difficult process. For the weeks and months that follow the funeral, handling the estate of a deceased individual may quickly overwhelm survivors. The steps outlined below provide a guide to survivors through this tumultuous time.

Immediately upon the death of a loved one

After notifying family members and close friends, contact a funeral director. The funeral director is able to assist with funeral and burial arrangements, publish an obituary, order the death certificate, and transport your loved one’s remains to the funeral home.

Estate Planning Strategies for Couples without Children

Published on: November 11, 2019 | by Ettinger Law Firm

Not everyone can have children, and not everyone wants them. Supporting this trend are statistics that reveal America’s fertility rate is on the decline. In 2018, the number of children born in the United States even dropped to its lowest rate in 32 years.

There are numerous reasons why couples are deciding to not have children including concerns about money and uncertainties about the prospect of raising a child in today’s world. Some couples who have decided to not have children make the mistake of thinking that they do not need a detailed estate plan, but in actuality they do.

It is still important to make sure that any assets owned by the couple pass according to their wishes. It is also often critical that burial and funeral requests of the couple are properly carried out. As a result, this article reviews some important details that couples without children should remember while estate planning.

Estate Planning Advice for Millenials

Published on: November 8, 2019 | by Ettinger Law Firm

Estate planning changes between groups of people. The necessary estate planning strategies also change between people. Like it or not, it is time for many members of the millennial generation to begin the estate planning process.

As a result, this article examines some of the unique challenges faced by this age group as well as takes a review of some estate planning strategies that Millenials should follow.

Powers of Attorney and Living Wills Are Helpful

What Trust Instrument Is Right for You?

Published on: November 8, 2019 | by Ettinger Law Firm

The advantage of including a trust in your estate plan is that trusts usually avoid probate. The beneficial effect of that advantage is that your beneficiaries may gain access to the assets held in trust faster than those assets transferred via will. When used optimally a trust may minimize estate taxes. Trust can be arranged in many ways and can specify exactly how and when the assets pass to the beneficiaries. What follows are a brief description of the types of trust instruments that may be included in your estate plan.

Basic types of trusts

Marital or “A” trust	Provides immediate benefits to your surviving spouse. However, the assets in the trust are included in the taxable estate of the surviving spouse. The surviving spouse does not pay estate taxes on his or her spouse’s assets, until he or she passes.
Bypass or “B” trust	Bypasses the surviving spouse’s estate, providing federal estate tax exemption for each spouse, popularly referred to as a credit shelter trust.
Testamentary trust	Assets from the will are transferred into a testamentary trust upon death. The assets are subject to probate and transfer taxes and often continue to be subject to supervision by the Surrogate’s Court.
Irrevocable life insurance trust (ILIT)	Designed to exclude life insurance proceeds from the deceased person’s taxable estate while providing liquidity to the estate and/or the trusts’ beneficiaries. This type of trust is irrevocable.
Charitable lead trust	Estate assets pass to a charitable or religious organization and the remainder is given to your beneficiaries.
Charitable remainder trust	For a period of time the trust provides an income stream to the beneficiary and then any remainder goes to a charity.
Generation-skipping trust	Using the generation-skipping tax exemption, a generation-skipping trust permits trust assets to be distributed to grandchildren or later generations without incurring either a generation-skipping tax or estate taxes on the subsequent death of your children.
Qualified Terminable Interest Property (QTIP) trust	Used to provide income to a surviving spouse. Upon the spouse’s death, the assets then go to additional beneficiaries named by the deceased. Often used in second marriage situations, as well as to maximize estate and generation-skipping tax or estate tax planning flexibility.
Grantor Retained Annuity Trust (GRAT)	Irrevocable trust funded by gifts you make (grantor). It is designed to shift future appreciation on quickly appreciating assets to the next generation during your (grantor’s) lifetime.

Consult with a New York trusts and estates lawyer to include a trust as part of your estate plan. Be sure to read our next post, Understanding the Differences Between Revocable and Irrevocable Trusts, to learn about the types of trust instruments that may be included in your estate plan.