Estate Administration

May 5, 2016

CREDITORS OF AN ESTATE

ORDER OF PAYMENT

It should not be a surprise to anyone that when someone passes away, their estate must pay for all legally binding outstanding debt owed by the decedent just prior to passing. New York as well as just about every other jurisdiction has laws that address how the estate puts creditors on notice that they must file a claim, but how the creditor must go about making a claim and getting paid from the estate. As in other areas of the law, there is an order and priority to the claims that can be paid. The administrator has a fiduciary obligation to the heirs to distribute the estate to the terms of the will. That fiduciary obligation also extends to creditors of the estate. The payment of expenses, ensuring that all disbursements are properly documented and all taxes and fees are paid are core responsibilities of the estate administrator.

To do this, the estate administrator must first understand what assets the deceased owned, the value of those assets, which in and of itself costs money. When an estate is insolvent, the creditors will surely examine every expenditure by the administrator to determine if they acted appropriately. On the other side of the ledger, the administrator must determine if the claims are valid or overpriced and inflated. The estate administrator has an obligation to dispute all claims, except properly owed, legally enforceable obligations. Since the final accounting by the estate administrator presupposes that all parties are already involved in litigation and there is a Court already scrutinizing all credits and debits, the likelihood that a party will enforce their rights, or, more specifically, object to the final accounting, is all the much greater. The balancing act that the estate administrator must engage in can be a complicated endeavor.

February 1, 2016

PLANNING FOR MARRIED MEDICAID APPLICANT’S COMMUNITY SPOUSE – COMMUNITY SPOUSE INCOME

by Ettinger Law Firm

When a married person applies for Medicaid, the government looks at the collected, or, pooled, resources of the two to determine if one of the two spouses is eligible for Medicaid. If the combined income of the two spouses is above the income threshold set by law, the balance must be paid to the nursing home of the dependent spouse. But what income provisions are allowed for the spouse who remains in the community? What do the get to keep? Is the community spouse allowed to tap into the income of the dependent spouse if his/her income is not enough?

The legal, financial benefits that allow for the community spouse to keep a certain amount of income has the terrible name of spousal impoverishment standards. This contains an amount of money, known as the minimum monthly maintenance needs allowance (commonly known as or referred to as the MMMNA). The figure from July 1, 2015 to June 30, 2016 is $1,991.25 per month. Starting on January 1, 2016 the maximum monthly maintenance needs allowance is set at $2,980.50 per month. This is the maximum the community spouse may keep before being required to contribute to the medical needs of the dependent spouse (NOT minimum, so not to be confused with the MMMNA).

WHAT IF THIS IS NOT ENOUGH?

November 6, 2015

LACKING IN MENTAL CAPACITY AND FAMILY, WHO DECIDES

by Ettinger Law Firm

On June 24, 2015 a trial Court in California invalidated a California law as unconstitutional, which created a default surrogate decision maker when that individual is mentally incapacitated and does not have a family member, or anyone else for that matter, to make key decisions for them. The law and the issues addressed are not limited to California. Even though by definition, the law deals with individuals with no proxy decision maker, that does not mean someone did not exist in the past or could not step up to become one. Proxy decision makers pass away themselves, they move or simply just fade away and no longer attend to their responsibilities. New York law deals with these issues in a rather collaborative way. In 2010, New York enacted the New York Family Health Care Decisions Act, which creates a decision ladder for medical professionals who need to know with whom to check with for certain critical decisions. It was designed to avoid the parade of horribles that the California law dealt with. Certainly, no one wants a loved one or relative, even a distant relative, to have to rely on these provisions; they are used as a last resort.

DETERMINATION OF INCAPACITY

In the absence of a health care proxy, The New York Family Health Care Decisions Act begins to shape decisions, for all intents and purposes, at the time of the determination of incapacity.

March 4, 2015

Robin Williams’ Wife and Children Fighting Over Estate

by Ettinger Law Firm

Almost six months after the untimely suicide of comedian Robin Williams, his wife and children are embroiled in a contentious legal battle over his estate. Court documents filed in California during December and January pit his last widow, Susan Schneider Williams, against his children from his two previous marriages: Zak, Zelda, and Cody Williams in a battle over money and property in his estate. The family is not only arguing over the apportionment of wealth that Robin Williams acquired over four decades of acting, but they are also fighting over personal effects and belongings of the late actor.

Sides of the Case

In the documents filed with the courts, both sides want to hold on to the majority of Robin Williams’ memorabilia that he accumulated over his lifetime. This includes his bicycles, toys, fossils, and other personal reminders of him as a husband and father. The papers show a schism between his last wife, who he married in 2011, and his children that were a highly visible part of his life.

May 23, 2014

Having a Bon Voyage – Specifying End of Life Decisions that Lay Out Your Last Wishes

by Ettinger Law Firm

It has been said that life is a journey, not a destination. So it makes sense that in our last days, on our final journey, we should strive to have a good one–a bon voyage.

While talking about end of life issues–particularly our own–can sometimes be uncomfortable, the best way to make sure that your end of life wishes are honored is to lay them out in writing and make sure that your loved ones are aware of them. Don’t miss the opportunity to have a bon voyage–take the opportunity to set out your end of life wishes and take control of your journey.

Unfinished Life Matters

May 1, 2014

Back to the Basics: What is the Difference Between Revocable and Irrevocable Trusts?

by Ettinger Law Firm

While many New York residents familiar with and have an existing will in place in the event of their death, most people do not realize that estate planning documents extend far beyond a last will and testament. The world of estate planning documents includes not only living wills and advanced medical directives, but also trusts. Trusts offer several benefits associated with them, and come in two forms: revocable and irrevocable.

Benefits of Having a Trust

Trusts can not only provide for loved ones upon death, but they can provide for the person who created the trust during their lifetime. This is important in cases where the creator has a health issue, a mental disability or incapacitation, and other scenarios. Trusts can be administered without the need to involve a probate court, and can therefore protect privacy as to the contents of the trust. Trusts also serve as protection of assets for trust beneficiaries, and offer a wide variety of options in creating them to suit different needs.

April 21, 2014

Undue Influence in NY & Pressuring Vulnerable Seniors

by Ettinger Law Firm

Family feuding is all too common, and finances are often at the root. One argument often made in legal cases involves these matters is that an adult child or other close relative is abusing a position of trust and confidence with a parent to take advantage of them financially. Proving such an abuse is the challenge of an undue influence lawsuit.

Undue influence is usually defined the use of confidence for the purpose of taking unfair advantage of one with a weakness of mind (or other vulnerability). In other words, undue influence is about pressure. The question is when does pressure become excessive, and thereby amount to undue influence. In a legal case where undue influence is an issue, a court may consider a number of factors:

1. Unusual or inappropriate time of discussion of the transaction;

March 17, 2014

Not Allowed to Disinherit – Spousal Right of Election in New York

by Ettinger Law Firm

New York residents are urged to craft an estate plan so that their assets are passed on per their own wishes–and not based on arbitrary state laws. Unless you explicitly make your desires known, then all decisions will be left up to others. However, there are actually a few rare instances when the law explicitly prohibits you from making certain planning choices. These situations are not common, but it is important to be aware of them in case they conflict with your plans

The most notable rule of that nature relates to disinheriting a spouse. In most cases, the law automatically allows a spouse to inherit certain assets if he or she chooses–regardless of the specific estate planning provisions.

Marriage is deemed a special legal relationship that is voluntarily entered into under the law. As a result, state statutes include default rules that protect the relationship. This is somewhat different from other close relationships–like parent-child. A resident can always end a marriage to legally break the spousal relationship. That is why it is usually possible to disinherit a child but not a spouse.

March 14, 2014

Understanding Estate Sales – What Can You Sell?

by Ettinger Law Firm

Most legal matters have built-in complexities. Anyone who has purchased a home, for example, can appreciate the mountain of paperwork will dense legalese that must be filled out . Things are only made more challenging where there are significant emotions tied up in the dealings–like when the home was owned by a loved one who just passed away.

One common example of a process that many New York residents face with a mix of intense emotions and legal complexities is an estate sale.

No two families are the same. Some wish to go through with a sale as soon as possible to settle the matter and move on. Others take more time to process the situation before handling matters like an estate sale. In all cases, however, it is critical to proceed with an understanding of the legal requirements.

December 16, 2013

Rock N’ Roll Estate Fight – Decades After Death

by Ettinger Law Firm

One of the biggest misconceptions about settling an estate is that all of the loose ends will be handled within weeks or months of the passing. In reality, it often takes years or more before all of the details are finalized. In cases of sizeable wealth, unique assets, or complex administration arrangements, the estate details may linger for decades.

Consider a story in last week’s New York Post regarding the estate of former New York Dolls guitarist Johnny Thunders. Thunders was only thirty eight years old when he died in 1991. Yet, even though the death occurred more than 23 years ago, there is a legal estate planning battle brewing over control of his assets.

Thunders Estate Fight