New York Estate Planning & Elder Law Blog

What Types of Cases to New York Surrogate’s Courts Handle?

Published on: October 15, 2017 | by Ettinger Law Firm

New York’s Surrogate’s Courts handle a wide variety of civil issues, mostly related to trusts and estates, guardianship, and adoption. The Surrogate’s Court is established in every county in New York, helping to provide residents with timely and effective due process for legal issues under the court’s jurisdiction. The following is a brief overview of the types of cases the Surrogate’s Court handle and what individuals can expect from the proceedings.

Probate – Probate proceedings deal with the process validating the last will and testament of a deceased person, if the individual created such a document. A last will and testament are the final directions given by the deceased to allocate his or her to estate to heirs and other beneficiaries.

It will be the responsibility of the person named as the executor of the estate to file the will with the probate office of the Surrogate’s Court, collect all the necessary documents, pay off creditors, and finally divide assets of the estate among beneficiaries per the wishes of the deceased.

Tips on Talking to Parents About Inheritances

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

As important as talking about estate planning is, almost nobody will tell you that doing so is easy. In fact, talking about estate planning is usually pretty difficult. We have written about many different approaches to talking to your heirs about your estate plan, but communication is an extremely important part of estate planning and works both ways. A recent article from The Week may help you find ways to approach talking to your parents about your inheritance. One of the most important things to remember is that even with a difficult topic like this, discussions about these things typically end on a good note. The following tips can help you strike the right chord when approaching estate planning with your parents.

Timing Is Key

The article points out that some individuals might be inclined to have discussions about serious family topics like inheritances during holiday visits. However, experts warn that it is important to remember that holidays are often already a stressful time for everyone and trying to have a serious discussion about something as important as estate planning might be rather difficult during these times. It could even end up striking the wrong tone and making any future discussions about the topic that much more difficult and unpleasant.

Roth IRAs and Your Heirs’ Taxes

Published on: October 11, 2017 | by Ettinger Law Firm

One of the primary purposes of responsible, comprehensive estate planning is to make sure that you are able to distribute as much of your estate as possible to your chosen heirs. After all, you worked hard for a lifetime to build your estate and most people engage in estate planning to make sure as much of their estate survives as possible. A recent article from The Motley Fool reminds us of the role Roth IRAs can play in making sure that the inheritances you leave to your heirs do not fall victim to unexpected taxes. This is especially true in today’s world where there is a great deal of uncertainty as to the direction of our nation’s tax system.

Roth IRA Basics

A Roth IRA is an individual retirement plan that allows you to put a certain amount of money into it each year. The money you contribute to a Roth IRA will already be taxed. That means that qualified withdrawals from the Roth IRA will be tax free when you start to take them. Roth IRAs might even provide a tax credit for some of your contributions depending on a number of factors regarding your individual circumstances and financial situation. The earlier you make the choice to start a Roth IRA, the better as a Roth IRA must be active for at least five years prior to your death in order to escape federal income taxes.

Inter Vivos Trusts – The Benefits of Creating a Living Trust

Published on: October 11, 2017 | by Ettinger Law Firm

In New York state, individuals can place their estate into a trust to distribute to beneficiaries and thereby avoid lengthy and costly probate proceedings in a Surrogate’s Court. While a traditional last will and testament may be better for some individuals, for many it may be best to create some form of a trust, particularly a living trust, to ensure loved ones receive their portions as quickly as possible and with as little tax liability.

It is also worth noting that even after creating living or inter vivos trusts, you will still need a last will and testament to ensure any of your final wishes are carried out and assets left out of the trust are dealt with as you see fit. Without a will to cover newly acquired assets or those not named in the trust, the remainder of your estate could considered in intestacy and pass on to your heirs in succession under New York law.

While creating a trust is a fairly straightforward affair, it may still be necessary to consult with financial advisors or an estate planning attorney to ensure proper transfer of your assets. The first step will be to create the trust and there are many resources from the New York State Bar and Surrogate’s Court system online you can go to for forms and information how to file.

Estate Planning Concerns for Same-Sex Couples

Published on: October 9, 2017 | by Ettinger Law Firm

When the United States Supreme Court legalized same-sex marriage, it opened up a lot of doors that had been closed to many people in society. However, it also created a significant amount of new legal concerns for same-sex couples. With marriage, a host of new questions and responsibilities have arisen. Not the least of those concerns is responsible, comprehensive estate planning. While comprehensive estate planning is crucial for all individuals regardless of their marital status or sexual orientation, it is an extremely important consideration for same-sex couples that may not have had an estate plan in place.

Potential Issues

An article from the Cleveland Jewish News points out that same-sex couples – especially unmarried same-sex couples – could still face a host of legal hurdles when it comes to the death of one person in the relationship. These concerns could include issues involving health care and power of attorney, which make it extremely important for unmarried couples to make sure documents addressing these concerns are in place should they be needed. Without these documents, there may be laws in place prohibiting an unmarried same-sex partner from making important financial and health-related decisions if an individual becomes incapacitated or otherwise unable to make such decisions on their own.

Potential Issues with Joint Bank Accounts

Published on: September 30, 2017 | by Ettinger Law Firm

There are a number of reasons that people create joint bank accounts. Perhaps you and your spouse want to share a bank account to help simplify your marital finances. You may use joint bank accounts to help teach your children the importance of budgeting and financial planning. You may even need to have access to someone else’s bank account if they are incapacitated or cannot make purchases on their own. Whatever the reason for having a joint bank account, they are not without potential issues when it comes to your estate plan.

Vulnerability

Adding a person as an owner of a bank account inherently makes the account itself more vulnerable. In addition to the potential issues raised below, the more people you add as owners of a joint account the more likely you are to fall victim to theft – including identity theft. By adding individuals to the account, you will increase the risk of lost or stolen cards and/or checkbooks. Additionally, if the person you add to the account is not financially responsible, you risk losing the assets in that account because of poor financial planning.

Creating Savings Accounts for Disabled Family Members

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

Individuals with disabled family members understand the many obstacles life can put in front of them and their family, especially when it comes to finances. For many, having a permanent disability can mean being unable to provide for oneself and that can mean relying on benefits from social welfare programs to get by. However, many of these programs have strict income thresholds that can exclude potential beneficiaries if they earn too much money or have too much capital.

Fortunately, New York is one of several states that allow disabled persons and their families to create special savings accounts to help maintain the person’s health, independence, and quality of life. The New York Achieving a Better Life Experience (NY ABLE) helps supplement but not supplant benefits provided through Medicaid, SSI, SSDI, private insurance and other sources and is exempt from om tax on its earnings and distributions, provided the funds are used to pay for qualified disability expenses.

The laws creating the ABLE statute was signed into law by Gov. Andrew Cuomo in December 2015 and is federally authorized by the federal Stephen Beck, Jr. Achieving a Better Life Experience (ABLE) Act enacted on December 19, 2014, as Section 529A of the Internal Revenue Code. The NY ABLE program is administered by Office of the State Comptroller in consultation with specific State agencies and individuals appointed by legislative leaders, as specified in the NY ABLE statute.

New York’s Medical Orders for Life-Sustaining Treatment (MOLST) Form

Published on: September 22, 2017 | by Ettinger Law Firm

In New York, patients have the right to make many decisions about their end of life care and even appoint a representative to do so in their interests if circumstances leave them unable to make such decisions for themselves. Using what is known as a Medical Orders for Life-Sustaining Treatment (MOLST) form, patients can create a doctor’s order that informs physicians and emergency care givers whether to administer treatment like CPR or place the individual on ventilator or other life-saving equipments.

MOLST forms can be used in combination with a do not resuscitate (DNR) order to help give patients the most control over how their health care is delivered in an emergency situation or at the end of life where tough decisions must be made. In order for the MOLST form to be valid, the document must be signed by your physician and yourself, otherwise doctors may continue to deliver treatment during and emergency. The form will become a part of your medical file and will transfer over to whatever facility you may be treated at.

The main difference between a MOLST and DNR order is the former covers a broader range of care doctors may deliver, including intubation, administering antibiotics, and interesting feeding tubes, with DNR orders only cover administering CPR. Often times, patients using a MOLST face a life-threatening medical condition or lives in a long term care facility like a nursing home or hospice.

Trusts Are More Accessible Than You Might Think

Published on: September 18, 2017 | by Ettinger Law Firm

Once a tool for extremely wealthy individuals, trusts have gained in popularity over recent decades. Changes in laws governing trusts and the development of new approaches to estate planning have made trusts an invaluable tool for many working class families to ensure they are able to provide financial security to their loved ones. A trust can help make sure that your assets are distributed according to your wishes in a variety of different ways, some of which are discussed below. An experienced estate planning attorney can review the various types of trusts that you may be eligible for and can help you determine the right type and structure to achieve your estate planning goals.

Trusts Can Avoid Probate

The majority of trusts are established during a person’s lifetime, and these trusts will be eligible to avoid the probate process. While the New York probate process is less difficult than the probate process in other states, it can still be time-consuming and costly. Trusts are an effective way to allow loved ones to access the assets you wish to distribute to them without waiting for the probate process to be complete. Ultimately, this saves you time and money in addition to keeping assets within the trust out of the public record associated with the probate process.

What are Advance Directives for Healthcare?

Published on: September 16, 2017 | by Ettinger Law Firm

Advance directives for health care are legal documents that ensure an individual’s wishes are carried out if he or she cannot make decision. New York State recognizes three types of advance directives including a health care proxy, living wills, and do not resuscitate orders (DNR). Even younger and more healthy individuals should consider putting these types of directives into place in case of a serious accident or medical event.

Health Care Proxy in New York

A health care proxy allows individuals to name a health care agent who will make decisions if that person cannot make those decisions for himself or herself. Under state law, these types of decisions can take effect after two doctors examine the individual and determine that person cannot make decisions for his or her health. New York state offers standard forms for a health care proxy.