Estate Planning Law Articles

Read articles about Estate Planning Law in the USA.

Why You Need a Living Will

Making medical decisions for a loved one is extremely difficult, but making end of life decisions for someone is legally impossible without proof of his or her wishes. In New York, nobody may make end of life decisions for another–such as to forgo life sustaining treatments which only serve to artificially prolong one’s life—unless there is “clear and convincing” evidence of that person’s medical wishes. A Living Will document is the standard manner in which that burden is met. Continue reading →

Can I Amend My Will?

If you are thinking of changing your Last Will and Testament, do not do so yourself. Although any adult with mental competency can change his or her last will and testament at any time, it cannot be amended by simply writing the changes onto the document. There are two ways to validly “amend” the terms of a last will and testament. The first is to sign a codicil. A codicil is a short document that serves to change the terms of an existing will. The requirements of executing a codicil are the same as for a will. The second is to sign a new will document. Each will that is signed is the last… as it revokes any previously executed document. Executing a new will is the superior method of amending the terms as it keeps all of the terms in one completed document. Continue reading →

What happens to your house when you enter a nursing home?

14 October, 2020

Elder Law Articles

When someone enters a nursing facility for long term placement, there are several ways the Chronic Medicaid program can treat the primary residence. Usually the primary residence is a “countable asset” for the Medicaid applicant and needs to be sold. However, there are some exempt transfer and planning techniques that can preserve the primary residence. Continue reading →

How to Object to a Will

In order for a person to contest a last will and testament (“will”) in New York, he or she must have legal grounds. This means a reason based in the law that the will is invalid and should not be admitted to probate. Admitting a will to probate means that the executor named in the will is appointed by the Surrogate’s Court. The executor then distributes the decedent’s assets as dictated by the will. The most common grounds for challenging a will are improper execution, lack of testamentary capacity, and undue influence. Having grounds for contesting a will takes more than simply disliking the terms of the will or being unhappy with its distribution. Continue reading →

Does an Executor have to provide an accounting to beneficiaries?

16 November, 2020

Probate Law Articles

As fiduciary you are required to account to the beneficiaries, but the type of accounting will vary depending upon the actual beneficiaries and the fiduciary’s relationship with them. There are two types of accounting: informal and judicial accounting. Continue reading →

18 November, 2020

Guardianship Law Articles

Choosing who will raise your children in the event you pass away is not an easy task. Unfortunately, there are no statutory guidelines that courts follow. If a guardian is not nominated by the parents, a family or friend must petition the Court to be appointed and the Court will decide who will raise your children. In the short term, your children may be placed in foster care while waiting for the appointment. The good news is that there is a simple way to avoid the Court choosing who will care for your children: the appointment of a Guardian through a Last Will and Testament or a Trust document. During your life, you and your husband should execute estate planning documents that outline what would happen to your children in the event you pass away. This article will discuss some considerations to think about as you plan out these documents. Continue reading →

Does your Community Medicaid Move with You?

24 November, 2020

Elder Law Articles

Community Medicaid, also known as homecare Medicaid, is not limited to care in one’s current home. A person is eligible for Community Medicaid so long as they reside in New York, do not require a skilled nursing facility, and meet the financial eligibility requirements. Continue reading →

Community Medicaid for Two

24 November, 2020

Elder Law Articles

When both spouses need long term care, they can apply together for Community Medicaid provided that they qualify as a “dual applicant.” As a couple applying for Community Medicaid, the spouses cannot have more than $23,100.00 in total countable resources. This typically includes bank accounts, brokerage accounts, non-qualified annuities, stocks, bonds and cash value of life insurance policies. The primary residence is exempt and the applicants may have qualified (retirement) accounts in any amount assuming distributions are being taken on a monthly basis. Finally, an irrevocable pre-arranged burial account in any amount is an exempt asset for each applicant. Continue reading →

Changing Your Will in the Middle of a Divorce

You can change your Will or Trust at any time, even in the middle of a divorce. However, once a divorce proceeding is commenced, both spouses are restricted from transferring assets or changing the designated beneficiary on retirement accounts. This restriction does not extend to the ability to change your last will and testament or other estate planning documents. Many people name their spouse as executor, power of attorney, and health care proxy, and a change in the marital status will likely change who you want to serve. For example, if you are in the process of getting divorced, do you want your soon-to-be ex-spouse to be able to make medical decisions for you if you cannot make them for yourself? Continue reading →

The Third Party Supplemental Needs Trust Trigger

30 November, 2020

Trusts Law Articles

If you have a disabled child who is already receiving means-based government benefits, such as Medicaid or Social Security Supplemental Income, it is imperative that your estate planning documents leave that child’s share in a Supplemental Needs Trust (also called a Special Needs Trust). When assets are left to a disabled person in a Supplemental Needs Trust, they are not counted as available resources for the purpose of government benefit eligibility. Unlike Medicaid planning for oneself, there is no lookback period when assets are left from the outset in Special Needs Trust; they are immediately protected. Continue reading →

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