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One of the most important elder law decisions is picking the best nursing home. While this decision is often financially motivated, it’s also critical to find a facility that offers the best possible care to fit your needs. Unfortunately, not all nursing homes are capable of meeting everyone’s needs. To help process best, Medicare has implemented a five-star rating system.

The Separate Nursing Home Ratings

Not all nursing homes meet Medicare standards. After an in-depth review of a nursing home, Medicare assigns facilities with a rating based on a one to five scale with one being the worst and five being the best. Five-star ratings for nursing homes are based on the following separate categories:

  One of the most undesirable situations in the field of estate planning is a person becoming incapacitated or passing away without the proper estate plans in place. To die intestate means that a person passes away with no legal will. This means that if a person intestate, the distribution of that person’s assets is determined based on New York law rather than any consideration for the needs of the deceased person’s loved ones. 

Tragically, many people die without the proper estate planning tools in place. For example, Black Panther star Chadwick Boseman passed away without a will. Boseman’s case is unique because he filed some estate planning documents, but not enough to fully oversee how his estate was handled. Consequently, the distribution of Boseman’s assets was left to the control of a California probate court to distribute Boseman’s estate which is valued at $939,000. Given the celebrity of Boseman’s film roles, his estate was likely worth much more but passed on many assets to trusts. Curiously, however, wills are often written contemporaneously to wills. Boseman’s story brings to mind why you should ignore some of these common reasons and engage in adequate estate planning sometime soon.

# 1 – To Make Sure Your Children Are Cared For

In the recent case of Odom v. Coleman, a brother and sister initiated legal action against another in a matter involving their father’s estate. The dispute between the two siblings focused on whether the father’s estate should be reformed in accordance with Texas Estates Code Section 255.451(a)(3) that allows courts to modify or reform a will if necessary to correct a “scrivener’s error” in the terms of the will to conform with the testator’s intent which must be based on clear and convincing evidence.

The Will In This Case

The will in this case contained a residuary clause that passed on personal property to the son and then the daughter. A rigid interpretation of the will found that the deceased man’s real property would not be included in the residuary cause instead passed through intestacy. The son then initiated legal action to revise the will to omit the word “personal” in the residuary clause. The trial court ultimately for the son and the daughter appealed.

In the recent Texas appellate case of Maxey v. Maxey, a dispute occurred involving the probate of an estate in which two sisters mediated and reached a settlement agreement addressing the division of real property. The two sisters disagreed on how to divide property among several trusts and as a result initiated legal action against one another. Following mediation, the sisters entered into a settlement agreement to divide real estate. The parties then disagreed on what the settlement agreement meant and again initiated legal action against each other. The trial court ultimately found that the settlement agreement’s terms were ambiguous and submitted the meaning of an agreement to a jury. Following a jury trial, the losing sister appealed.

The court of appeals later reversed this decision and held that the settlement agreement was not ambiguous. The court instead found that language used was not reasonably susceptible to multiple meanings. Because the language in the settlement agreement was found not to be ambiguous, the court found that the jury should have determined the parties intent as a matter of law and did not need to rely on extrinsic evidence. Consequently, the court remanded the case back to trial court to construe the settlement agreement and properly divide the real estate.

When trusts and estate cases arise involving real estate, parties often must mediate and settle disputes. One of the valuable takeaways from the Maxey case is that it emphasizes that parties can enter into enforceable and unambiguous settlement agreements that divide real property provided that they create adequately detailed descriptions. Fortunately, besides stating property descriptions, there are also some other helpful steps that parties can follow to avoid trusts and estate planning contests or disputes.

The coronavirus pandemic has substantially altered the way that we engage in business. There are, however, ways to sign estate planning documents remotely without needing to be in close proximity to anyone. 

To better prepare you for navigating the estate planning process remotely, this article reviews some important details that you should remember.

# 1 – Executive Order No. 202.7

Many families in New York, as well as the rest of the country, are considered “blended”, which means that many families bring children from previous relationships into new relationships or marriages. Whether or not a family is blended can end up influencing how families should structure estate plans to achieve various goals. 

Under New York law, an adopted child is treated identically to how biological children of the adopting parent are. There are, however, unique issues to consider when it comes to adoption and estate planning. Some of these key concepts are discussed in this article.

# 1 – Establishing a Trust

In the recent case, In the Estate of Hohmann, a person passed away without leaving an executed will. The deceased man’s caretaker, however, found a handwritten document where the deceased man stated his wishes for his assets. The deceased’s cousin later applied to probate the handwritten document like a written will. An heir of the deceased man later filed an opposition to the probate process. The trial court then granted summary judgment for the opponent and the applicant appealed.

The court of appeals subsequently held that valid wills must be in writing, signed by a testator, and attested by two or more credible witnesses. Even if a document does not meet these requirements, however, it can be admitted to probate as a holographic will if it is handwritten entirely by the testator and the testator placed a signature or initials on the document to execute it. 

The court then held that the document had not been signed and was not valid. The court also noted that while signatures can be informal and that the location of signatures is of secondary importance, the testator must intend his name or mark to constitute a signature. In this case, however, the court found no evidence indicating that the testator intended the phrase to be used in such a way. The court also found that when the written document is viewed as a whole, the testator’s signed names bore no connection to any other provisions in the document.

In the November 2020 case of Ochse v. Ochse, a Texas court heard a case that could potentially have a ripple effect on how trusts are interpreted. In this case, a mother established a trust that provided the trustee was authorized to make distributions to both the trustee’s son as well as the son’s spouse. At the time the trust was executed, the son was married to his first wife, but later divorced and married a second wife. The son’s children then initiated legal action against the son for breaching fiduciary duties as trustee and joined with the first wife who is also the mother as necessary parties. The first wife and son then filed competing summary judgment motions addressing whether the first or second wife was the son’s “spouse” as referenced in the trust. The trial court then held that the second wife was the correct beneficiary at the time of the suit. The first wife subsequently appealed.

What the Case Involved

The second wife and son argued that the use of the word, “spouse”, in trust documents did not mean the first spouse’s actual name. Instead, these parties argued that the term referred to the class of whoever was currently married to the son. The court of appeals, however, disagreed. The first wife argued that in the absence of contrary intent, a gift to a “spouse” of a married individual must be construed to mean the spouse at the time of the document’s execution instead of a future spouse. The first wife further argued that the terms “primary beneficiary’s spouse” as well as “son’s spouse” referred to the first wife because she was the son’s spouse at the time that the trust was executed. Both interpretations requested the court to view spouses as either statuses or class gifts. 

Executors as well as the personal representatives of estates can be held personally liable for either applying or distributing estate assets when there are unpaid estate taxes owed in case the Internal Revenue Service is not paid. When estate tax returns are not filed, the final amount of estate taxes due is not determined until either the statute of limitations expires or an audit occurs. Consequently, estate fiduciaries are left uncertain about whether or when an adjustment to estate taxes will occur if the Internal Revenue Service has accepted an estate tax return as filled. 

This type of response is unfair to both fiduciaries and beneficiaries because the most fiscally responsible fiduciaries can hold back on distributions until the amount taxed is more certain. To assist fiduciaries in assessing whether tax is due, an estate tax return is filed with the IRS. These returns are often issued following review by the Internal Revenue Service and a decision about not to audit or following the completion of post-audit procedures or litigation. 

The Role of Estate Tax Closing Letters

One of the most recurring themes about estate planning as well as retirement strategies is to minimize risk. As a result, if you plan on creating a comprehensive retirement plan, you should make sure to also include an adequate estate plan. While you will hopefully enjoy a long and comfortable retirement, it is still important to consider what will happen if you don’t survive to retirement. This article reviews some of the most critical reasons why you should make sure to address estate planning issues while plotting your retirement. 

# 1 – What Happens If You Pass Away Without a Will

If you pass away without a will describing how your assets should be passed on, a New York court will be required to follow in regards to how assets are distributed. This often results in family members fighting one another for the outcome of a case. While the news is full of this dilemma happening with famous people like Prince and Tom Petty, it’s also a common occurrence among people with smaller estates. As a result, it is critical to make sure that you at least write a will addressing how your assets are distributed. Even if you do not have a large estate, wills can still play a critical role in passing on any meaningful type of property that you own. 

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