New York Estate Planning & Elder Law Blog

Dealing with Personal Property in Your Estate Plan

Published on: September 18, 2015 | by Ettinger Law Firm

When you create an estate plan, you face many decisions. One of those decisions will be how you should divide and distribute your property. You will spend a great deal of time deciding who will get what upon your death. One area that may need special attention is the distribution of your tangible personal property, especially those items that may not have significant monetary value, but may hold substantial sentimental value to you and your loved ones.

What is tangible personal property?

Under New York law, property is anything that may be the subject of ownership. The property specifically devised by your will or trust commonly includes real property, cash, stocks, motor vehicles, and other items of value you wish to pass on to those named in your will or trust. It is a good idea to define what you mean to include as part of your tangible personal property, which typically excludes cash, securities, and tangible evidence of intangible property. Generally, tangible personal property will include property, other than real estate, whose value is derived from the item itself, or its uniqueness, such as furniture, decor, jewelry, coin collections, photos, and other personal items you use in daily life. While you may consider your pets as members of your family, the law classifies pets as tangible personal property.

Tax Planning for Required Minimum Distributions

Published on: September 16, 2015 | by Ettinger Law Firm

Not all investments are created equal. You investment portfolio may include a 401(k), individual retirement account, pension plan, or deferred compensation plan, among others investment vehicles. Whether your investment trust account is qualified under the Internal Revenue Code will determine the tax treatment of your contributions and withdrawals.

Qualified vs. Non-Qualified Investment Accounts

A tax-qualified account features the ability to contribute income to the qualified account and defer tax on the account funds. Typically, you must be 59 ½ to withdrawal funds from a tax-qualified account without penalty. Conversely, non-qualified accounts do not offer tax deferred treatment. When you withdraw funds from a tax-qualified account, your entire withdrawal will be taxable, as opposed to being taxed on only the growth of your non-qualified account. Qualified tax plans include, but are not limited to:

Making College Savings a Part of Your Estate Plan

Published on: September 15, 2015 | by Ettinger Law Firm

Saving for the cost of your child’s or grandchild’s college education can be intimidating. Participating in a qualified tuition program, also known as a 529 college savings plan, that is administered by the State of New York can be an effective part of your estate plan, and a great way to save for college tuition.

What is a 529 Plan?

When you (the “participant”) enroll in a 529 savings plan, you open a special account with the sponsoring state program. This account is a tax-advantaged account that helps you pay for your designated beneficiary’s qualified higher education expenses, including tuition, fees, room and board, and required books.

Back to the Basics – Avoiding Disputes Over Your Estate

Published on: September 12, 2015 | by Ettinger Law Firm

Without you around to clarify your testamentary intent, those receiving property, and likely those intentionally omitted from your will, might battle over your estate for years. There are many potential sources of dispute, but there are steps you can take to make sure your intent is carried out without an ongoing legal battle after you pass on.

Common Sources of Dispute

One child may have received more financial help over the years while the decedent was alive, and the will or trust does not take into account this prior assistance, which may leave the other children or beneficiaries with a sense of unfairness.

Nursing Home Contracts: Before You Sign On the Dotted Line

Published on: September 12, 2015 | by Ettinger Law Firm

At some point in your life you or a loved one may need full time care in a nursing home facility. As part of the process of being admitted into a nursing home you, on your own behalf or on behalf of a loved one, may have to sign a nursing home agreement that outlines the terms and conditions of your residency in the facility. This agreement, by whatever name it may be called, e.g., admission agreement, provider agreement, or nursing home contract, is a legally binding document that governs the relationship between you and the nursing home. For that reason it is important that you become familiar with the terms and conditions in the nursing home contract for your own benefit or to protect your loved one.

Understand Your Rights

Every nursing home resident has rights that nursing homes are required to honor. These rights include, among others, access to quality medical care, the freedom from discrimination and third party payment guarantees, and a complete and understandable disclosure of the facility’s rules and regulations. You have the right to be an active participant in your care, and be informed of your treatment, and the operations of the facility in which you or a loved one are a resident. However, sometimes nursing home facilities either ignore the rights of the patients in their facility, or act in a negligent manner. To the extent you have a dispute with the facility, residents have the right to assert your grievances to the nursing home, and even government officials, without the fear of reprisal.

Dealing With Lost Wills

Published on: September 7, 2015 | by Ettinger Law Firm

Some clients may ask, “what happens if we lose the original will; is the court still going to let it be admitted to probate?” The short answer is, as always, maybe. As a general rule of thumb, New York courts are very reluctant to admit a copy of a will. If the original is lost, there is a presumption that a copy may not be the true will. It could be outdated, older version of the testator’s wishes. Maybe the original will was destroyed, and the person presenting the copy is trying to defraud the estate. These and more are just examples of concerns that judges may have. However, there are proactive steps that can be taken early in the estate-planning process to avoid this unfortunate complication.

New York Law Does Allow Lost or Destroyed Wills to be Admitted

Under Section 1407 of the New York Code, the following things must be shown in order to admit a lost or destroyed will to probate.

Prepaid Burial Expenses: An Often Overlooked Part of Medicaid Planning

Published on: September 3, 2015 | by Ettinger Law Firm

When planning for the possibility of eventual nursing home admission, the key is not so much building up assets, but rather, spending as much as possible in ways that will not trigger penalties or ineligibility. So, some of the best tricks are finding exempt expenditures; these are things Medicaid allows you to spend money on without being considered part of your assets.

Prepaid burial

When it comes to the morbid topic of death, no one likes thinking about purchasing the last piece of property they will ever live on, but everyone does eventually die. Not thinking about it will not stop it from happening. Since we know death is inevitable, paying for that burial plot now will take that money out of the scope of Medicaid. There are also other alternatives that may qualify. Loved ones will have to shell out the money to bury you later anyway, so at least this money is now not going to the nursing home.

New York Nursing Homes Beware – Medicaid Fraud Under Fire

Published on: August 27, 2015 | by Ettinger Law Firm

New York’s Attorney General, Eric Schneiderman, unveiled a sweeping Fraud Control Unit designed to target healthcare providers who abuse the Medicaid system. According to the AG’s website, they are continuing to add dozens of prosecutors and investigators to keep up with reports and investigations. Nursing homes throughout the country are largely paid by Medicaid funds. To stay profitable, nursing homes must remain at near full occupancy. This often means cutting corners, refusing to transfer residents who need critical care or higher levels of care, and even billing for services that are not (or cannot be) provided. Below are just three simple examples of Medicaid fraud in nursing homes.

Billing for Services Not Rendered

When a resident goes to a skilled nursing facility, the resident and his or her family typically sign a contract and apply for Medicaid. At times, the application takes some time to be approved, but once it is, the money begins flowing to the nursing home, paying for whatever services are billed. There are fairly strict rules on what the facility can bill for and how much they are paid.

Court Says Breach of Contract to Create Will is a Statutory Probate Claim

Published on: August 26, 2015 | by Ettinger Law Firm

Although most couples make similar wills that leave their estate to their children and other loved ones, some may have reasons why they prefer to distribute their assets differently. For instance, people who marry later in life might have children from previous marriages. In those circumstances, they may ask their estate planning attorneys to create contracts that ensure the bulk of their estate goes to their own children, as opposed to letting the surviving spouse leaving everything to his or her children instead.

These cases can get messy. Once a person dies and leaves his or her estate to a spouse, that surviving spouse is free to dispose of everything freely without concern for the deceased spouse’s wishes.

Markey v. Estate of Markey

Preserving Your Virtual Legacy: Part 1 (Social Media)

Published on: August 20, 2015 | by Ettinger Law Firm

Today, everything is online. People build complex virtual realities through social media, professional and personal websites, and even dating sites. We date online, buy groceries online, sell everything from books to brake pads online, and we even register stars online. So, naturally when we die, there is a lot of personal information about us still available on the Web. After all, the Internet does not come to a screeching halt just because one person passes away. Some have even asked attorneys if they can leave their virtual reality to a loved one. In some ways, the answer may be yes.

But one might ask, what becomes of all that information? What if we own a business or have a public brand, such as a celebrity or business owner? Believe it or not, there are several interesting ways that people can preserve their virtual presence after death and even leave certain intangible benefits found uniquely in the virtual world.

Facebook Legacy Accounts