An estate plan is needed to protect your loved ones. Your estate plan will include instructions for your care while you’re alive and distributions of your property after you die. This will relieve your family of the unnecessary burden and complication of a probate.
A Living Trust is created during your life to hold assets. It can be changed at any time. After a living trust has been established, all of your property will then be transferred to the trust. Upon death the trust will direct the distribution of your property in the trust. Some of the advantages of a living trust include avoiding the costs and delays of probate, avoiding a court appointed guardian, maintaining your privacy and providing a seamless transition after death.
A Will is a document signed by a person directing the distribution of property upon death. Changes can be made at any time during a person’s life. Some of the questions to be answered in the drafting of a Will include:
1. How will I provide for my heirs?
2. Who will be my executor?
3. Should I leave my assets outright to young people or in trust?
4. Who will be the trustees of trusts for my children or other beneficiaries?
5. How can I minimize estate taxes under my will?
A power of attorney is a legal document that appoints a trusted friend or family member to manage your money in the event you become disabled. One of the most significant benefits to a power of attorney is that it can eliminate the expensive process of a guardianship proceeding in court. You can designate one or more persons to manage your financial affairs, either individually or jointly.
A living will is a written statement of your wishes for health care if you can no longer express those wishes. It gives you the chance to provide clear direction for the type of medical care you want, including pain management care. The living will also includes the type of medical care you do not want. Finally, a living will gives you the power to choose the person, a trusted family member, friend or loved one who will ensure your wishes are carried out. As an example, if you suffered a brain injury and could no longer communicate, you would need someone to give. instructions for your health care.
Guardianship is a legal proceeding for a person who can not make decisions for himself. There are two types of guardianship in New York, one focused primarily on persons who are born with special needs and one focused on persons who have become incapacitated as a result of injury or illness.
This type of guardianship in New York is governed by the Surrogate’s Court Procedure Act under Article 17-A. This statute governs the appointment, duties and authority of a developmentally or intellectually disabled person. A person in need of a guardian under this law must be certified by two licensed professionals as being incapable of managing his or her affairs. There are proceedings for the appointment of a guardian of the person, the property or both.
Planning for the special needs of a loved one includes answering the following questions:
1. Who will receive my assets after my death?
2. Does my special needs child need a guardian now?
3. Who will be the guardian after my death and the death of my spouse?
4. How will I provide for financial support for my child with special needs for his
or her lifetime?
5. How will my child receive all the government benefits he or she is entitled to?
By preparing an estate plan, including a living will, health care proxy and power of attorney, you can give instruction for your care if you become sick.
By preparing a Will and/or a trust with the help of an experienced estate planning attorney, you can provide direction about the distribution of your property after you die.
No - a revocable trust will not protect your assets after death. However, an irrevocable trust may protect your assets.
In general, a trust is preferable because it avoids the need to go to court after death and the complications, delay and cost of a probate proceeding.
Irrevocable trusts are used for asset protection and tax planning. If you are concerned about the costs of long term care or estate taxes, an irrevocable trust might be appropriate for you.
This is a complex question facing many seniors but can be answered with proper planning, including a Will, trust, living will, health care proxy, power of attorney and general elder law considerations. By putting a plan in place, you can choose the people who will help you.
If you have a Will and/or Trust, you can direct who will receive your property after your death. If you do not have a Will the law will direct who receives your property.
It is generally good practice to leave assets in trusts of minor and special needs children. These trusts can be part of your Will and trust. You will choose the Trustees (the people who will manage the trust). You will also choose the distribution scheme of the trust assets.
Death taxes, also know as estate or inheritance taxes (depending upon the jurisdiction where you reside) can be reduced through sophisticated planning, including lifetime gifts to family members or in trusts for family members, through post mortem tax planning and other tools available with the help of experienced estate planning attorneys.
You can include your end of life wishes in a living will and health care proxy.
Protecting assets from the costs of long term care can be done through the purchase of long term care insurance and/or an asset protection trust. This type of trust must be done well in advance of need as there is a five year “look back” period for certain benefits.
If a person dies without a Will and has not designated in some other manner how his assets are to be distributed, the laws of the State in which he is domiciled at the time of his death will determine who is to receive his assets and, in effect such laws “write” the Will for the decedent. In the State of New York the law provides that if a person dies with a spouse and one or more children, the spouse will receive the sum of $50,000 plus one-half of the balance of the Estate. The remainder will pass to the children or their issue. If the decedent is survived by a spouse but no children, the entire estate passes to the spouse. If there are one or more children but no spouse the entire estate will go to the children. If there is no spouse or children, the estate will go to parents.
In other words, if a person dies without a Will ("Intestate"), not all of his assets will pass to his spouse. Instead, the estate will be split between his spouse and his children in accordance with the laws of the State of New York. In addition, this situation will create the following problems. If there are minor or disabled adult children and/or other heirs, any assets which are payable to them will be deposited into a Court- directed account and will be subject to the jurisdiction of the Court as to when and if the minor can have access to the money. In addition, a minor would automatically receive his share upon reaching 18.
The Executor (known as personal representative in some states) is the person appointed in a Will to be in charge. The Executor’s job is to collect the property of an estate, pay expenses and debts of the estate and follow the instructions in the Will.
Before our first meeting, we will provide you with a questionnaire. It is an inventory of assets, including property deeds, bank account information, life insurance, stocks, IRAs and other retirement assets, etc and beneficiary information for all this information.
The first meeting is usually about 1 1⁄2 hours. This is a very involved, detailed meeting which results in a suggested plan moving forward. It is tailored to each person’s specific needs and we recommend having all of the documents beforehand in order to get the most out of the meeting.
This will depend on the complexity of the plan. There are set fees for basic documents, which could increase with more intricate planning.
“Probate” derives from the Latin word “to prove”. Probate is a court process of proving a Will is valid. The Executor named in the Will files a petition with the+ Surrogate's Court in the County in which the decedent was domiciled at the time of his death. The Court’s role is to review all of the facts and circumstances relating to the execution of the Will and to admit the decedent's Will to probate. The Court appoints the Executor named in the Will as the legal representative of the Estate. The notice and consent of all interested parties (as defined by statute) is required in order for the Will to be admitted to probate.
If a beneficiary of an estate has special needs, a supplemental needs trust will provide an inheritance without compromising his or her eligibility for governmental benefits, most importantly, Medicaid and Supplemental Security Income. Eligibility for public entitlements is strictly regulated, and it is therefore critical that the drafting of all estate planning documents be done with careful attention to this particular detail.
Elder law is an area of law that addresses the legal needs of the aging population. It includes all aspects of estate planning - wills, trusts, powers of attorney, health care proxies, living wills, probate and estate tax considerations. In addition, elder law includes Medicaid planning, long-term care planning, guardianship, retirement benefits, protection against elder abuse, neglect, and fraud, end-of-life planning, all
levels of disability and medical care, social security benefits, nursing home planning and in-home care.