New York Estate Planning Lawyer Blog

August 24, 2011

Proper New York Estate Planning Necessary to Combat Possible Legal Challenges

Our New York elder law estate planning attorneys are proud of our work as counselors at law, acting as trusted advisors for the clients who count on us. In this capacity we spend each day meeting with community members to understand their family dynamics and listening to their concerns and fears about the planning process. By familiarizing ourselves with the unique circumstances of each client we are able to anticipate possible challenges to their plan and ensure that all the bases are covered ahead of time. In this way we can use our knowledge and experience to help clients pass on their assets and protect those assets in a seamless manner that avoids legal challenges and court proceedings.

The use of trusts is one of the key ways that our New York estate plans help clients stay out of the courtroom. Unlike wills, trusts do not require court proceedings to settle, both in this state and in other states where property might be owned. Avoiding probate saves the time, stress, and high costs of the legal proceeding.

Besides avoiding probate, our New York estate planning attorneys work hard to craft plans that cannot be successfully challenged by those who may be upset by client decisions. This is where taking the time to understand the family dynamics of each client is essential. It is important to anticipate ahead of time individuals that might have hurt feelings because of the details of a plan or become disgruntled upon learning of a client’s decision regarding their assets. Unfortunately, family disagreements arise frequently in these situations, often leading some upset individuals to challenge the legality of the plan in an effort to overturn it.

August 22, 2011

Common Pitfalls of Pet Bequeaths

by Ettinger Law Firm

The most recent survey from the Humane Society found that there are at least 78.2 million owned dogs and 86.4 million owned cats in the United States. The data indicated that nearly 40% of all American households own a dog while roughly 33% own cats. Pet ownership rates are near the highest ever reported. In addition, many owners go to unprecedented lengths to integrate their animals into their families, from including them in annual Christmas card photos to ensuring they have a spot in all family vacations.

Considering the close bond so many families have with their animal friends, it is only natural that they would want to provide for them in an estate plan. Our New York estate planning attorneys know that in our area pet trusts are no longer only for the rich, famous, or eccentric. Recent research has shown that somewhere between 12 and 27 percent of pet owners provide some provisions for their animals in their wills. Many families have visited our office and expressed a wish to take legal steps to ensure that their beloved pet will have the resources they need for as long as they need them in the future. In fact, we have set up a relationship with providers of these services at www.PetEstates.com to help clients gain the peace of mind of knowing that their animal will be protected after they are gone.

It is vital to have professional help with these matters, because haphazard planning could risk leaving your pet without any support. A recent Reuters article took a look at these common pet trust pitfalls. Many large, high-profile pet trusts have been severely curtailed by judges. Ensuring that the trust includes only a reasonable amount necessary to account for the animal’s well-being is important. Many problems can also be avoided if the trust names a caretaker who is willing to comply scrupulously with the terms of the trust. On top of that, if a trust names a final resting place for the pet it is important to check that the location will accept the animal. Most pets cannot be buried in mausoleums for humans in the United States.

August 18, 2011

Estate Plan Still Needed to Divide Properly Equally Between Children

by Ettinger Law Firm

Some local residents believe that they do not need to worry about creating a New York estate plan if they only want to divide all of their assets between their children equally. These community members are under the incorrect assumption that the default legal rules will ensure that everything works out as they wish. Unfortunately, this is rarely the case.

This weekend My SA News discussed this all-too-common mistake of voicing intent to be even-handed with asset distribution but not taking the proper legal steps to carry out that intent. For example, the story used the real example of a family with two parents and five daughters. Both parents had been married to one another their entire lives with no divorces. They did not conduct any estate planning because they always explained that they wanted everything to be divided equally among their children at their death. They did not even have wills drafted.

However, their actions did not reflect that voiced intention, and there was no plan in place to protect the family. For example, after the father died, the mother deeded the family home to the first sister. Later, a second sister deeded another house to the mother, but upon the mother’s death that sister wanted the home back. A third sister visited an attorney and asked for help. She wanted the family home and the second home to be divided equally among the children as the parents always wished.

August 16, 2011

New York Estate Planning Can Address Religious Goals

by Ettinger Law Firm

Proper estate planning involves respecting client wishes about distribution of assets while creating legal documents to avoid probate, save estate taxes, and plan for disability. Many plans include similar components, but there is flexibility so that each client’s unique goals and preferences are accommodated. For example, many area community members work hard to adhere to their religious principles in all areas of their lives–including their New York estate plan.

A new article posted at Wealth Journal recently explained how few areas of the law are as entangled with religious issues as estate planning. Many components of an estate plan may be influenced by one’s religious or spiritual beliefs, from traditional rules about asset distribution to statements about medical decisions and funeral arrangements. For example, traditions like Judaism, Islam and Orthodox Christianity have detailed rules of inheritance that some may wish to follow as closely as possible. Similarly, it may be important to leave detailed instructions for trustees on how funds should be dispersed in accordance with those religious traditions and values.

Most residents usually apply a hybrid approach to blending their religious belief with their estate plan. One many wish to avoid following any religious custom except for burial and funeral arrangements. Others may seek strict adherence except restrictions on cessation of heroic medical measures. There is seemingly an endless combination of approaches that one might seek to balance in their estate plan. Of course, whatever one’s desires it is crucial to have open and honest discussions with loved ones about these issues so that they can be communicated effectively during the planning process. In our area it is also important to contact an experienced New York estate planning attorney who can effectively integrate religious wishes into a plan that simultaneously respects legal, tax, and ethical issues.

August 15, 2011

Power of Attorney & Health Care Proxy Are Crucial Components of New York Elder Care Plan

by Ettinger Law Firm

Every New York elder law estate plan should likely include a Power of Attorney and Health Care Proxy. These documents allow another person to handle a variety of legal, financial, and medical affairs on your behalf in the event of disability. Our New York elder law attorneys know that preparing for all possible contingencies is the main purpose of this planning, and so inclusion of these documents remains essential.

Some residents are less familiar with the importance of these decision-making tools and may assume them to be unnecessary in their particular case. They may believe that their friends or family members will step up and handle affairs appropriately without the need for formal legal documents. Unfortunately, that assessment is misguided because very often family disagreement arises among these individuals under the stress of dealing with the disability–setting the stage for conflict without prior delegation of decision-making power. The director of a local public aging services center explained that “the last thing you want is if you age and lose capacity, to become a pod in a power struggle between your kids or your grandkids.” On top that, even if one’s family members do not disagree on any financial or medical issue, the law will not automatically grant these powers to a certain friend or family member. In many cases, the disability requires court intervention to appoint a guardian which is a situation that should always be avoided.

Failure to provide this legal clarity ahead of time can have wide ranging effects. For example, KFBB News reported late last week on one man who is facing felony kidnapping charges after allegedly taking his 92-year old mother out of her long-term care facility and bringing her into another state without permission. The man was not his mother’s Power of Attorney. The family was confused about the local elder care laws, and the man assumed he had the right to move his mother. He didn’t. He is now awaiting extradition to face possible criminal sanctions for his conduct. It is likely that the man would not be facing any charges at all had a Power of Attorney been drafted.

August 12, 2011

Women Can Take Control of Family Estate Planning

by Ettinger Law Firm

An experienced New York estate planning attorney has likely come to appreciate how asset preparation issues are particularly important for women. Demographics play a role in this reality. Women tend to outlive men, and a wife is more likely than a husband to be left alone after a disability or death. In addition, men frequently take charge of handling family financial affairs while alive and risk leaving their wives in an unfamiliar position if preparation is not conducted ahead of time.

Yet polls continue to reveal that it is only a minority of women who admit prioritizing estate planning or familiarizing themselves with family financial issues. A Forbes article yesterday discussed this disconnect between the importance of financial preparation for wives and their prioritization of it. The story mentioned that women are much more likely to experience a decline in their standard of living following the death of a spouse because of their longer life expectancy, tendency to marry older spouses, and lower lifetime earning average. Interestingly, this also means that wives frequently have the last word about where a couple’s assets ultimately end up–either to the family, charity, or tax coffers–particularly when the family had conducted no prior planning.

This makes it essential for women to become equal participants in the estate planning process or to take charge of the process if no preparation has yet been completed. While talking about mortality is rarely easy or light hearted, it is a topic that cannot be avoided in the end. The story’s author suggests that it is often helpful to have a series of conversations about the topic instead of trying to cover everything at once. Of course every couple will have their own ways of communicating. However, it may be useful to mention the need to consider the children, refer to someone who recently passed away, or bring up a news article that discussed estate plans.

August 10, 2011

New Website Services Offers Online Method of Distributing Personal Property

by Ettinger Law Firm

Most New York estate plans have various components and include several legal documents. Most will have a Revocable Living Trust, Medicaid Asset Protection Trust, or both. A pour-over will is also frequently added as a failsafe to cancel an old will and ensure that any assets left outside the trust are brought into it after death. The plan will have various other facets, including a Power of Attorney, Health Care Proxy, burial instructions, and other final instructions for a family.

In addition, a common practice is to leave a list which indicates which valuables will go to each heir. This list is usually handwritten and specifically requests that a trustee honor its terms. In this way, if a client changes their mind about the distribution of their personal property they can simply handwrite a new list without needing to visit their attorney to cement the change. This step is important because many local families experience in-fighting when trying to distribute sentimental personal property without the guidance offered by a New York estate plan. When more than one family member wants the same item, the stage may be set for strong disagreements that often profoundly and permanently affect relationships. Most family members are under immense stress at the time of a passing which makes the situation even worse.

A few online web services have recently sprung up which claim to help families distribute this property in a fair manner. For example, one of the more popular services is eDivvyup. The website essentially sets up a family auction using non-monetary “credits.” A family first selects an “executor” to set up the auction by cataloging personal items, inviting family members to participate, and assigning credits. Each family member then visits the site and places bids on items of interest to them using the non-monetary credits they are provided. The auctions usually work like eBay, spanning anywhere from a day to several weeks. The goal is that by the end of the auction each family member will have gotten the fair chance to indicate which items mean the most to them.

August 8, 2011

Season Tickets, Frequent Flier Miles, and Other Unique Assets in Estate Plan

by Ettinger Law Firm

Local residents visit our New York estate planning attorneys for professional assistance to protect and pass on their assets. Many also expect guidance identifying the items that should be considered an asset and included in the planning. Most area families need to consider things beyond homes, cars, investment portfolios, and similar items when creating their New York estate plan.

For example, what happens to frequent flier miles and rewards upon an individual’s death? Many residents spend years and thousands of dollars in airfare racking up mileages and benefits in airline sponsored loyalty programs. A recent article in Payments News explained how many fliers spend time accumulating these “miles” and rewards only to leave them unused at their death. Some reports indicate that as many as 3.5 trillion miles currently remain unused in these programs. Interestingly, each airline has a different policy in place regarding transferability of loyalty benefits at death. American Airlines specifically allows accumulated mileage credit to be transferred to a person named in a court-approved will or estate plan. Other carriers, such as United Airlines, require that a beneficiary be named with the program, a fee be paid, and require an executor to contact the airline before miles can be transferred.

Another asset which one may wish to leave behind is the option to purchase valuable season tickets. Area residents often spend years waiting for the opportunity to become a season-ticket holder for their favorite teams. A post this weekend at The Faculty Lounge recently discussed this topic. Most teams have policies in place that allow an individual’s decedents to gain the right to purchase. However, it is important to closely examine the team policy related to ticket transferability to understand what issues might arise. For example, there may be conflict over who gains the right if several children share in ones’ assets. Many team policies indicate that there will be no transferability if several individuals share in the right and do not agree on a single transferee. Some teams also expressly prohibit a non-relative from receiving the right to purchase the tickets.

August 4, 2011

New York Estate Planning and the National Debt Crisis

by Ettinger Law Firm

Over the past few weeks political debate around the national debt has dominated headlines. National leaders had disagreed for months on whether the debt ceiling needed to be raised. In addition, lawmakers had argued over whether spending cuts and revenue enhancements should be addressed as part of the debt crisis.

This week finally saw the apparent end of negotiations as the White House and Congressional leaders reached an agreement on many of these issues. The accord will raise the debt ceiling by $2.4 trillion, up to a total of $16.7 trillion. This will come with a $900 billion reduction in spending–a special Congressional committee will identify up to $1.5 trillion more in spending cuts in the coming months. Interestingly, no specific decision was made on revenue enhancements that either raises taxes or removes “tax loopholes” for corporations and individuals.

Our New York estate planning attorneys closely monitor all legislative developments that may influence how local residents decide to pass on their assets or plan for their long-term care. For example, finding additional sources of revenue enhancements generally means raising taxes. During this latest debate, increasing the estate tax was frequently mentioned as a possible way to increase federal revenue. The estate tax level was significantly reduced by President George W. Bush several years ago. Current leaders have often suggested that the Bush tax cut was misguided and that the level needed to be returned to its former amount.

August 2, 2011

Estate Planning is Not Just for Senior Couples

by Ettinger Law Firm

Some area residents may think that New York estate planning is only for married seniors who have big families and substantial wealth. Fortunately, more and more people are coming to understand that this planning is a necessity for all community members, no matter what their situation in life. The Calgary Herald recently discussed the universal applicability of estate planning by sharing the example of a thirty-six year old mother of two who was recently divorced. The woman had never before seriously considered financial matters, but everything changed following separation from her husband.

It was not long before the mother began to realize that taking care of her family was now squarely on her shoulders–necessitating prudent preparation for long-term contingencies. For example, if she were to suddenly become ill, who would take care of her children? If she became disabled, how would the family survive? The woman began considering these and similar questions before realizing that she wanted the peace of mind of knowing that she had prepared for these possibilities ahead of time. The woman visited an estate planning attorney and learned what options were available to her. She eventually purchased life insurance, disability insurance, and had legal documents drafted to ensure others could make critical decisions on behalf of her family if the need arose.

The mother’s situation is a good example of why estate planning is often particularly important for singles. Those without a partner frequently need to clearly spell out their wishes ahead of time, because fewer people may be around to speak on their behalf. For example, a thirty year old single man may get in an accident shortly before closing on his first piece of real estate. If he has taken the time to create a durable Power of Attorney, the named individual may be able to close on that new home on his behalf. There are countless similar situations that may arise where prior estate preparation can significantly affect an individual’s life.