New York Estate Planning & Elder Law Blog

Do Not Forget to Apply for SSI Death Benefits if You are a Surviving Spouse or Child

Published on: June 8, 2017 | by Ettinger Law Firm

The passing of a loved one is never an easy event. While families take time to grieve and mourn the loss of a parent or spouse, many estate-related details that can greatly impact the estate’s financial situation may be overlooked. By taking some time to understand what types of benefits Social Security Insurance (SSI) recipients qualified for before their passing, surviving family members can more easily claim these benefits and relieve some of the financial strain of laying a loved one to rest.

Believe it or not, many people forget to claim SSI death benefits after the passing of a senior loved one. These benefits help provide funds towards the cost of funeral or burial for surviving spouses or children of SSI eligible individuals. The program is administered by the U.S. Social Security Administration (SSA) and provides a $225 Social Security Lump Sum Death Payment (LSDP) benefit.

President Franklin D. Roosevelt created the administration in 1935 during his first term during the New Deal. The SSA provides benefits for the elderly, disabled, widows, and many other vulnerable citizens. The $225 is the original amount written into law and stands today to aid those in need.

Biggest Mistakes in Estate Planning: Part I

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

Estate planning can be a difficult topic and is likely to touch on unpleasant emotions. However, it is an important part of comprehensive, responsible financial planning. Mistakes can be costly and some pitfalls can be difficult to recognize. In this three-part series, we will explore some of the biggest mistakes individuals can make in estate planning. Learning about these mistakes can help you avoid them and ensure that your estate plan allows you to distribute your assets to your heirs in the way you want.

Not Having an Estate Plan

Unfortunately, many individuals put off estate planning until it is too late. Sometimes, the unexpected can occur and a family can be caught without an estate plan in place. Without a Will, your estate will be subject to distribution based on your state’s intestate succession statutes. Often, this can be a long and difficult process that may also leave your estate open to significant financial penalties from the state and by way of taxes that could have been anticipated and addressed with a comprehensive estate plan. Additionally, a comprehensive estate plan can include documents that spell out your wishes regarding medical care and other significant decisions. In the absence of such documents, it may be difficult to have your wishes carried out.

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:

Owning Property Outside of a Trust Can Be Dangerous

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

Comprehensive estate planning is a lifelong process. There are always reasons to review and update your estate planning portfolio, including major life events life births or divorces. Not only does estate planning need to be a part of adjusting to major life changes, but the components of your estate plan can be used to protect your assets as well as those of your loved ones during these types of life events. However, one common pitfall of a comprehensive estate plan is when individuals own or acquire property outside of a trust. Doing so can result in unintended tax consequences as well as risk exposing your property to the probate process and/or creditors.

Property and Revocable Trusts

When you own property, placing that property in a revocable trust might be a good move for you based on your individual circumstances. Some benefits of a basic revocable trust include allowing assets within that trust, including property, to avoid the probate process. The probate process can be time-consuming and add unnecessary expense to settling an estate. It is also possible that placing assets like property in a trust will allow your family members to retain control over those assets if you are incapacitated to the point where a court may wish to appoint an outside guardian. Assets not within a trust are subject to probate and the potential loss of familial control in case of your incapacitation.

Preserving Real Estate Assets for Your Heirs

Published on: May 31, 2017 | by Ettinger Law Firm

Most people engage in comprehensive estate planning to ensure that the things they have worked for throughout their life can pass along to their heirs. Preserving your assets is an important part of ensuring that you are able to pass as many assets to heirs as possible. There are a variety of methods that allow you to successfully preserve assets in the face of major life events, if you are being pursued by creditors, or even from the financial costs of probate. It is of particular importance to make sure that high value assets, like real estate, are protected in these situations. Fortunately, there are several steps you can take to make sure that your real estate assets are able to be passed on.

Gifting

Perhaps one of the most common ways to protect real estate assets is to gift them to a friend or family member. You can either make an outright gift of the real estate or place real estate in a trust for a person. If you make an outright gift of real estate to another, you may be subjecting the transaction to the federal gift tax. However, the gift tax may ultimately be significantly less than the estate tax you could face if real estate you are gifting were to be included in your final estate valuation. An experienced estate planning attorney can help you understand both the federal gift tax and federal estate tax, as well as their state-level counterparts, to help you make more informed decisions about gifting high value and/or other assets.

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: