New York Estate Planning & Elder Law Blog

Elders Caring for Spouses with Alzheimer’s Must Plan for Their Future

Published on: June 5, 2017 | by Ettinger Law Firm

Anyone with a spouse stricken by Alzheimer’s disease knows exactly how devastating the condition is on the patient and how taxing it can be on the person administering care. Often times, senior act as primary caregivers to their spouses battling Alzheimer’s, a testament to their love and commitment until the very end.

While the nature of alzheimer’s disease means afflicted persons do not often outlive their spouses, those acting as caregivers should nonetheless plan for contingencies such as these to ensure their surviving spouse is well taken care of. Depending on the disease’s progression and the overall health of each spouse, couples may need to plan differently to suit their individual situation.

First and foremost, elder spouses need to ensure their power of attorney is up to date and names the caregiver spouse as the primary decision maker for the individual afflicted with Alzheimer’s. Furthermore, this document should give the caretaker the power to name another individual as the decision maker upon passing away.

What is the Dead Man’s Statute?

Published on: June 2, 2017 | by Ettinger Law Firm

When someone passes away, he or she typically has the estate in order by creating a will or trust and designating an executor to oversee the dispersal of assets to named beneficiaries, ensuring a smooth process during a time of grief. However, even the wills and trusts that seem cut and dry can face legal challenges to parties claiming to have a stake in the estate and are rightfully entitled to certain assets.

Fortunately, New York and other states have laws on the books known as “dead man’s statutes” that help to exclude testimony concerning conversations between the deceased and the individual challenging the estate. The main reason to exclude such conversations as evidence from probate proceedings is to prevent purgery and the introduction of evidence that cannot otherwise be verified.

While not limited to cases involving trusts and estates, New York Surrogate Courts often find themselves hearing arguments involving the dead man’s statute. There are three-exceptions to the exclusion of testimony by interested parties under New York law. These exceptions include:

Tips When Considering Estate Planning

Published on: May 25, 2017 | by Ettinger Law Firm

Comprehensive estate planning is an important part of aging, especially if you have already started a family. Estate planning for young families can be an unpleasant topic, but it is extremely important. Making sure that your heirs are provided for not only provides you with peace of mind, but also ensures that their needs can be met if you are not able to meet them yourself. When you begin to think about estate planning options, the following tips from a recent article in the Chicago Tribune can help you direct your energy and resources toward making the right decision based on your circumstances.

Make an Inventory of Your Assets

The first step in comprehensive estate planning is to figure out exactly what you are working with. You can do this by making a list of all of your assets so that you can see exactly what you have to leave to your heirs. Make sure to include everything: cars, checking accounts, retirement plans, digital property, trademarks you may own, jewelry, clothing, and any other assets you may have. This will give you an idea of how complicated the estate planning process might be for you and can help you determine which estate planning strategies might work best for you. You will also need to start thinking about who you would like these various assets to go to as that may have a significant impact on the types of estate planning strategies you ultimately engage in.

Remarrying as a Senior? Here are a Few Things to Consider

Published on: May 23, 2017 | by Ettinger Law Firm

Getting remarried as a senior can have a whole host of important consequences from estate planning, retirement, and any future medical care needs, particularly if either spouse has children. Without careful planning and consideration before remarriage, seniors may find themselves in unexpected financial trouble and even create a fight in probate court over the estate if new will and testaments are not drawn up.

First and foremost, a remarriage affects the inheritance of the deceased’s surviving family members, even after the trouble of crafting a well thought out last will and testament. Under New York probate laws, surviving spouses are entitled to a portion of the estate, even if the deceased’s will explicitly divides the estate amongst his or her surviving children.

In this situation, each party should re-examine his or her will and consult with an experienced New York estate lawyer to draw up new plans for the disbursement of the estate. Without a revised will following a remarriage, the deceased’s estate may be held up in probate court due to legal challenges over beneficiaries looking to collect pieces of the estate they believe they may be entitled to.

Tips for Avoiding a Will Contest

Published on: May 23, 2017 | by Ettinger Law Firm

Comprehensive estate planning can be a confusing process. It can be even more confusing with larger estates or with multiple children. Parents want to ensure that their estate plan provides for their children’s financial security, but in circumstances where children may be in different financial situations or a variety of characteristics may impact how parents elect to distribute their assets estate planning is an important part of avoiding a fight over the estate plan down the line. The following tips, adapted from a recent article from Forbes about circumstances that often combine to lead to fights over estate plans, can help you prepare your estate plan in a way that avoids fighting over it among your heirs. In preparing your estate plan cautiously and planning to avoid potential fights between heirs, you can ensure that more of your assets are preserved for your heirs and that their relationships do not have to face the test of a legal challenge to your estate plan.

Include a No Contest Clause

One of the most direct ways of avoiding potential fights over your ultimate decision in how you wish to distribute your assets to your heirs is no work with your estate planning attorney to include a “no contest” provision in your Last Will and Testament. Doing so allows you to notify heirs that anyone that chooses to contest the Will stands to inherit nothing should they try to contest the validity of the Will through legal channels and lose. The mere existence of this type of clause can discourage individuals from fighting over the provisions of your estate plan.

Removing a Trustee in New York

Published on: May 21, 2017 | by Ettinger Law Firm

Selecting the right trustee to administer your estate is a crucial part of ensuring that your assets are distributed according to your wishes and that your estate is settled correctly. While many people can and should put a great deal of thought into selecting a trustee to administer their estate, the process of selecting a trustee often stops there. Whether a trustee is a financial institution, attorney, or close family friend, you need to include a mechanism to remove that trustee if the need to do so arises. An experienced estate planning attorney can help you design this type of mechanism, which could help your loved ones avoid the often-lengthy legal process of removing a trustee in the absence of formal instructions.

When can a trustee be removed?

There are many reasons you may wish to revise your estate’s trustee. Perhaps you originally selected a family member that has become estranged because of divorce. You may have selected a sibling that has predeceased you. If you nominated a financial institution, it could have been bought out by another company that you don’t want to deal with. Whatever the reason for wanting to remove a trustee, New York law states that the following constitute some legal reasons for a court to remove a trustee:

The Fine Print in Nursing Home Contracts

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

When we send our beloved elders to a nursing home, we expect them to receive the care and attention need to live happy, comfortable, and dignified lives. Unfortunately for many seniors and their families, nursing home abuse and neglect is an all too common problem facing our nation’s elder care and assisted living system. While we expect nursing homes to do the right thing, nursing home abuse allegations can often lead to time consuming legal fights to recover damages and hold the facility accountable.

To make matters worse, many nursing homes have the power to insert clauses in their contracts with residents that strip away their right to due process in a court of law and instead require any disputes be settled in an administrative process known as arbitration. Because many families make the decision to place a loved on in an assisted care facility under duress, they often overlook key clauses in nursing home contracts.

What are predispute binding arbitration clauses?

Estate Planning and Buy-Sell Agreements for Your Business

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

Comprehensive estate planning can be an extremely complicated process for an individual. This is even more true when the individual owns a business. The owners of closely held businesses own businesses with a limited number of shareholders and the stock in such businesses is not regularly traded publicly. While this type of business can provide many benefits for business owners, it can also create issues when one of the business owner dies. However, structuring a buy-sell agreement for a closely held business can help make estate planning easier when it comes to your interest in such a business.

Redemption Agreements

With a redemption agreement, the company itself purchases a life insurance policy on the various owners of the company. When one of those owners die, the sole owner of the life insurance policy – in this case, the company – will receive the benefits of the life insurance policy and can buy back the deceased shareholder’s shares. There are some potentially negative tax consequences for this type of arrangement, including the possibility of the business to be subject to the current corporate alternative minimum tax on the proceeds from the life insurance policy.

Tips for Selecting a Guardian for Minor Children

Published on: May 13, 2017 | by Ettinger Law Firm

Comprehensive estate planning is a deeply personal process. There are so many different factors to consider, and working with an experienced estate planning attorney can help streamline the process and ensure that you explore all of the aspects of estate planning that pertain to you. One of the most difficult parts of comprehensive estate planning is selecting a guardian for your minor children if both parents should become deceased or incapacitated at the same time, leaving neither able to care for any shared children. As difficult as the process can be, it is extremely important to undertake it so that the best interests of your children are provided for in a worst-case scenario. The following are some tips in approaching the guardian selection process and provide some important considerations for you to remember when selecting a guardian, and an experienced estate planning attorney can help you with the process.

Choose Compatible People

Most people put a great deal of planning and thought into how they choose to parent. It is important for your peace of mind as well as your children’s well-being that you select individuals that share a similar parenting style and outlook. If academics are important in your household, make sure that they are also important to prospective guardians. Additionally, making sure that individuals you are considering as guardians are ready to undertake the responsibility that comes with it is extremely important.

What are the Rules for Medicaid Asset Transfer in New York?

Published on: May 12, 2017 | by Ettinger Law Firm

Medicaid is a terrific program designed to help older Americans pay for the cost of their prescription medication, hospital care, and even long term assisted living facility needs. Of course, like any other program, the system is in imperfect and comes with its own unique set of limitations, restrictions, and penalties that seniors and their families need to understand in order to take full advantage of under the law.

Designed as a resource to help low income and disabled seniors, Medicaid requires applicants meet certain financial criteria to qualify for benefits. Sometimes, seniors find themselves in a delicate situation where the state considers them too wealthy to qualify for Medicaid but unable to pay for vital nursing and hospital care on their own. In these circumstances, seniors may need to spend down or transfer assets to qualify for Medicaid assistance.

While this may seem like a practical idea, application for Medicaid in New York requires seniors to disclose asset transfers over the previous five-years to ensure applicants are truly in need of government assistance. The Department of Social Services ”looks back” at financial transactions made by the applicant or his/her spouse and may institute a so-called “penalty period” on non-exempt transferred assets which creates a waiting period on benefits which varies depending on the situation.