New York Estate Planning & Elder Law Blog

Digital Property and Estate Planning

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

Almost every facet of today’s world seems to be based on technology in one way or another. From the phones we use to the cars we drive, technology is everywhere and new technology is emerging each day. We use technology to manage many of our assets as well as to store personal mementos and other important items. You may also have important information about insurance and retirement accounts stored online that isn’t necessarily readily accessible to your heirs. Unfortunately, traditional estate planning practices don’t always protect your digital property. The Legal Intelligencer recently reported on the importance of protecting your personal digital property with proper estate plan provisions.

Types of Personal Digital Property

Protecting your digital property begins with understanding exactly what is included, which can be more than you might think. The article breaks down personal digital property into three categories, which include:

New York Elder Law Estate Planning: Unitrusts

Published on: March 6, 2017 | by Ettinger Law Firm

There are a variety of different types of trusts that an individual can use to their benefit while they are alive or in order to preserve their wealth for their family after they pass. Depending on it’s purpose, the grantor of a trust will make either a irrevocable or revocable trust. Irrevocable trusts cannot be modified without permission of the beneficiary since the grantor is giving up rights to their assets to the trust, versus a revocable trust where the grantor can modify the trust terms as they desire during their lifetime and upon their death, the assets transfer to the trust.

One unique type of trust that a grantor can establish for their benefit and for the benefit of a charity is a charitable remainder trust unitrust. Charitable remainder unitrusts are a type of irrevocable trust with specific characteristics setting it aside from other trusts. This type of trust distributes a certain percentage of the value of the assets in the trust to a beneficiary that is not a charity, usually a grantor of the trust or whomever the grantor has named to receive the named distribution. The grantor sets a specific timeline for the distributions to the beneficiary, and upon the termination of that timeline, the remaining assets are distributed out to the charity named.

In order to determine how much the non-charitable beneficiary will receive, the trustee must use a formula that requires minimum distributions from the trust annually. The trustee will first determine the fair market value of the trust at the end of the given year by obtaining a valuation of the assets in the trust and then will distribute out the percentage of that asset value named in the document.

Differences Between a Living Will and Healthcare Proxy

Published on: March 4, 2017 | by Ettinger Law Firm

While serious illness and death are certainly difficult topics of conversation, they are nevertheless extremely important. If you do not express your wishes regarding healthcare in situations where you cannot make such decisions yourself, choices about your care will often be left to family members. When a loved one becomes too ill to make decisions about their care, there are many questions that arise about medications, procedures, and other treatment options. That’s why it is extremely important for you to communicate your wishes to those close to you.

Not only does doing so help to ensure that your specific wishes for your healthcare are carried out, but it can also provide a great deal of relief for family members that may have otherwise had to make such decisions on their own. However, while talking about such things is important, you may also want to include options like a living will and healthcare proxy as part of a comprehensive estate plan to legally memorialize your wishes. The following information may help you decide if one or both options is right for you.

What is a living will?

New York Elder Care – Pain Treatment for the Elderly

Published on: March 1, 2017 | by Ettinger Law Firm

Aging comes with a number of considerations, including how to deal with ailments, conditions associated with older age, as well as how method of treatment is best for you or a close loved one. Today, there are an overwhelming amount of options to choose from when it comes to pain management and treatment for chronic conditions, however, many of them can become very addictive. One somewhat controversial treatment option for pain management being used by a number of elderly citizens is the use of medical marijuana.

Although the use of marijuana whether medicinally or recreationally is illegal under federal law, over half of the states have decriminalized and now approved it for use medicinally. Based on numerous studies and research, it has been shown that as compared to other pain management treatments, the use of marijuana leaves less risk for addiction, fewer side effects, as well as allowing individuals to still go about their daily lives while managing health issues. Health issues associated with aging include autoimmune diseases such as multiple sclerosis, arthritis, as well as cancer, dementia and Parkinson’s disease, which have all been approved under conditions managed using medicinal marijuana.

While the current elderly population has been somewhat skeptical of what they have known as an illegal drug being approved for use in the medical setting, as more states make it legal for use, approval among the older generations increases. Since many seniors are seeking to determine if use of marijuana is suitable for their condition, many nursing homes and assisted living facilities have had to come up with their own policies, either endorsing or shaming it’s use. Almost a dozen nursing homes in the state of Washington have amended their policies to respond to the demand for approval of medical marijuana as treatment in their facilities.

Common Ways to Transfer Property After Death

Published on: March 1, 2017 | by Ettinger Law Firm

The estate planning process is individual and unique to each person that goes through it. There is no one-size-fits-all template that will work for everyone. There are various tax concerns to think about, familial relationships, and many other factors that influence how we decide to distribute our assets after we die. The process can be confusing, but an experienced New York estate planning attorney can help simplify it for you. However, assets transfer in four ways common for almost everyone.

Transfer Via Last Will and Testament

Most people are familiar with the concept of a Will. A Last Will and Testament is a written document that expresses your wishes as to how your assets should be distributed upon your death. While many assets simply require nominating a beneficiary, which is discussed below, other assets require you to specify how you wish your assets to be distributed upon your death. A Last Will and Testament generally only includes property that is individually owned and is subject to validation by New York’s Surrogate Court.

The Role of the Executor

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

There are plenty of fancy words in law that actually have very basic definitions. Estate planning law is no different, with plenty of legal terms that can often be hard to unpack and understand. One such term that gets thrown around a great deal in the field of estate planning is “executor.” Who is an executor? What is their role? The following information may help you understand more about an executor and their role in your estate planning.

What is an executor?

The person creating a Will, known as the testator, will name someone that will be responsible for administering the provisions of the will in compliance with the law known as the executor. Basically, an executor oversees making sure that debts are paid and remaining assets are distributed per the testator’s wishes. Depending on the characteristics of your estate, some of the executor’s jobs may include:

Fixing a Broken Trust

Published on: February 24, 2017 | by Ettinger Law Firm

We recently posted about situations that may make it important to revise your estate plan, and about how reviewing your estate plan is an important part of ensuring it is accurate and secure. One component of an estate plan that continues to grow in popularity and functionality is a trust. However, what happens when a trust no longer serves the purpose for which it was established? Life events and other factors can significantly impact how effective your trust will be, and it is important to monitor your trust on a regular basis to ensure it still meets your needs – and to take steps to fix it if it doesn’t.

When might a trust break?

The law is always changing. Estate planning law is no exception. Some changes in laws that affect estate planning decisions can cause a trust to break. For instance, if a trust was created many years ago when the gift tax, estate tax, and generation-skipping transfer taxes had lower exemption values. Consequently, such trust may no longer be necessary to help you avoid certain tax burdens that they were designed to avoid. The changing exemptions and other factors surrounding these taxes can also make the prospect of paying taxes associated with the trust less appealing than taxes that would be due without the trust.

Are Illegitimate Children Considered Beneficiaries?

Published on: February 24, 2017 | by Ettinger Law Firm

The legal rights of illegitimate children and their ability to take under the terms of a trust have for years been the subject of many litigation proceedings. Illegitimate children are traditionally known as children who are born out of wedlock or to unmarried parents, however, the most widely known cases are those children who were born as the result of an affair by either or both parents. When one parent is the beneficiary of the grantor of a trust, the other spouse of the child, when old enough, may try to assert claims that they are also entitled to access the trust due to blood relation.

How Does an Illegitimate Child Take?

While traditionally under common law, an illegitimate child was not seen as a legal child of either parent, with no right of parental support or right of inheritance, today the laws have changed to better reflect the rights of an illegitimate child. Although states differ regarding their laws on wills and trusts, many now favor giving children rights, under statutes such as The Status of the Children Act as well as the Equal Protection Act. Under the Status of the Children Act, there is a presumption that any reference to children not further defined in a will includes both legitimate and illegitimate children, regardless of their relationship to the father.

Including Asset Protection Clauses in Your Estate Plan

Published on: February 20, 2017 | by Ettinger Law Firm

Comprehensive estate plans often include precautionary measures that ensure your assets are protected and distributed according to your wishes. Many times, many of your assets will be distributed to your spouse. However, it is important to think ahead for every possible scenario when engaging in comprehensive estate planning to prevent any unnecessary interruptions in the distribution of your assets once you have passed on. Some or all of the provisions discussed below could be a good fit for your estate plan and protecting your assets.

Simultaneous-Death Clauses

One scenario you may need to consider when engaging in responsible, comprehensive estate planning is one in which you and your primary beneficiary die at the same time or in a manner where it isn’t possible to determine who died first. Popular among married couples that often plan to leave a large part or all of their estate to their spouse, this type of clause allows you to appoint an individual who will be named as the first to die in situations where authorities are unable to determine who died first.

The Basics of a Revocable Trust

Published on: February 17, 2017 | by Ettinger Law Firm

There can be a lot of confusing terms involved in comprehensive estate planning. Estate plans are meant to be individual and flexible, and a New York estate planning attorney can provide you with a variety of options that help you create a plan that works for you and your wishes. One option that an estate planning attorney might present is a revocable trust, sometimes referred to as a living trust or a revocable living trust. The following provides some basic information about what these trusts are and how they operate.

What is a revocable trust?

Trusts are agreements between you and a third party in which you allow the third party, often referred to as a trustee, to hold assets for your beneficiaries. There are a variety of different kinds of trusts that each have different nuances that may work best for you. However, revocable trusts are often used in estate planning. A revocable trust is a trust you can create during your lifetime that may help you manage and protect your assets if you become ill or incapacitated. The American Bar Association notes that you may name yourself as trustee while also selecting a co-trustee, should you choose to do so. As the name states, revocable trusts can usually be created to be revoked or changed as you see fit. Revocable trusts should not be confused with irrevocable trusts which have distinct characteristics, especially related to taxes.