NYC elder law

What are the Time Deadlines to Contest a Will in New York?

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

In New York, there is no set time deadline to contest an estate. Rather, heirs, beneficiaries, and other interested parties will receive notice from the court the executor of the estate intends to enter the last will and testament into probate. However, there are certain deadlines for challenging other aspects of the will, including the accounts of the estate and allegations of theft by the executor.

Before the estate can be divided amongst the beneficiaries, a New York Surrogate Court must accept the last will and testament and enter the estate into probate. After the testator passes away, the surviving spouse and children are informed of the individuals passing, regardless of whether the will mentions these persons.

Next, the executor of the estate will need to ask each of the deceased’s heirs to sign a waiver allowing the estate to enter into probate. Often times, this is not an issue since heirs are often named as beneficiaries to the estate and were hopefully in good standing with the testator before his or her passing.

Conditional Bequests and Devisements

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

The law generally gives benefactors great leeway to set conditions for beneficiaries to inherit assets from an estate or trust. This is because the benefactor has every right to disperse his or her assets while beneficiaries have no such right. Often called “dead hand control,” these conditions are often meant to promote a certain type of lifestyle or at the very least prevent beneficiaries from harming themselves with the wealth passed on.

When conditional bequests and devisements are attached to a last will and testament, probate courts rarely concern themselves with whether the conditions are fair to heirs or even wise to try and implement. Rather, probate courts function to ensure proper transfer of assets and that the deceased’s wishes are carried out.

Some situations where benefactors may attempt to impose certain conditions for inheritance can include requiring an alcoholic seeking treatment, children and grandchildren holding down steady jobs, or even finishing school before collecting inheritance. Unfortunately, theses of demands rarely work out beneficiaries sometimes would rather choose to follow their free will than comply with demands of morality or industriousness.

Can the Executor of an Estate be Removed?

Published on: July 19, 2017 | by Ettinger Law Firm

When someone creates a last will and testament, he or she will need to name an executor to the estate to oversee dispersal of the assets and settling of debts. Once the last will and testament is created and the testator passes away, the will cannot be amended and probate laws require this individual to act responsibly and comply with the deceased’s wishes.

However, it is not uncommon for executors to mismanage estates, either through negligence or malice and beneficiaries. Executors owe a fiduciary duty to the estate’s beneficiaries by carrying out several functions including:

Obtain a copy of the last will and testament

June is Elder Abuse Awareness Month

Published on: June 28, 2017 | by Ettinger Law Firm

According to the Council on Elder Abuse, as few as one in 24-cases of elder abuse go reported to the proper authorities, an unfortunate reality that many across the state and country are actively trying to change. To fulfil the goal of eliminating elder abuse, June is Elder Abuse Awareness Month to help bring to light many of the issues facing our beloved elders enjoying their golden years with family and friends.

Unfortunately, elder abuse can take place in many different settings including at home by a caretaker or family member, a hospital or rehabilitation setting, or a nursing home by malicious or neglectful staff. According to mental and emotional health website HelpGuide.org, as many as half a million cases of senior abuse are reported every year, a number that pales in comparison to the estimated numbers of unreported cases.

Often times, elder abuse and neglect manifests itself in deep emotional suffering like depression or becoming withdrawn, making it difficult to report and stop elder abuse from the onset. No matter how secure you believe your elder loved one may be, you should always remain vigilant for the signs and symptoms of abuse or neglect. Armed with knowledge, you can be the advocate your loved one needs should he or she become a victim of abuse or neglect.

Elder Law Estate Planning in New York – What is Intestate Succession?

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

When someone passes away without creating a last will and testament or trust, the individual passes away in intestate, meaning his or her assets will be distributed to heirs based on a line of succession under New York state probate laws. While most of us plan for the time after we pass away, not everyone goes through the process of creating a will or trust and this can create some complex legal issues when the estate passes through probate.

Unless a trust is created, every estate must pass through probate court in New York, even if the deceased created a clear and concise will. However, there are a few types of assets that will not need to pass through intestate sucession if the decedent pases away without a will. These include:

Life insurance payouts

What are the Tax Rules of Gifts to Grandchildren?

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

All grandparents want the best for their children and grandchildren and many take the initiative to set aside part of an estate to help future generations get a head start in life. Forward thinking grandparents should also be aware there are certain tax and entitlement benefits rules seniors need to follow to remain in compliance with the law in order to avoid jeopardizing many of their own assets.

First, grandparents need to know the Internal Revenue System (IRS) places a $14,000 limit on untaxable gifts each year to individual grandchildren. Married couples may each give up to $14,000 to each and every grandchildren without any taxes, making the total $28,000 per year. Grandchildren receiving these gifts will not have to pay any income tax of these gifts, unless the assets generate income.

Additionally, grandparents can make direct payments to doctors and educational institutions to cover services on behalf of their grandchildren. The IRS does not consider payments for medical treatment and education as gifts subject to tax and grandparents can still give up to $14,000 each per year to their grandchildren without worrying about gift taxes.

Elder Law Estate Planning – Choosing the Right Trust for your Estate

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

When deciding how to disburse assets in an estate, many individuals decide to create a trust over a last will and testament in order avoid probate court and create a public record of the events. The pros and cons of establishing a trust over a will depend on many circumstances, including what type of trust the grantor chooses to create and what types of assets fall into that particular trust.

Living trusts

One category of trusts is the inter vivos trust, created while the individual is still alive. Two main types of inter vivos trusts exist, revocable and irrevocable trusts. Revocable trusts allow the grantor modify, amend, or otherwise change any aspect of the trust as he or she sees fit.

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.

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: