Articles Posted in Elder law estate planning

After taking the time to plan and execute a will, many people wonder what to do with the actual document to ensure it stays safe and can be found by the executor when the time comes. Without the original, executed copy of the last will and testament, the executor may be unable to pass the estate through probate and the court will consider the estate to be in intestacy.

Some of the most common places people keep their wills can include the office of the attorney who may have helped draft the will and advise the client, a safe deposit box in a bank, or in a fireproof safe at the individual’s home. Each of these scenarios have strengths and weaknesses and what may be the right fit for one person may not be the best for another. In any case, the executor’s access to the original copy of the last will and testament is crucial to the estate passing through probate.

Another less well known option is the register the original copy of the will with the appropriate Surrogate’s Court while the testator is still alive. Filing the will with your local probate court is a good plan in case the executor to your estate cannot find the original copy of the will or if you believe the document may be subject to tampering.

When people learn they are going to be the beneficiaries of someone’s estate and will inherit property, many of them often wonder whether it will actually cost them money to do so. We often hear about raising or lowering the federal and state estate tax, sometimes referred to as “the death tax” and all this talk can be quite confusing. While every situation is different and the tax code itself is quite complicated, there are a few basic principles beneficiaries should be able to rely on.

To start, New York is one of only a handful of states with a state inheritance tax but there are exceptions to the rule and that amount has increased substantially over the past few years. As of April 2017, the exemption on inheritance tax in New York is $5.25 million, meaning beneficiaries will only be taxed for assets worth more than this amount. The tax rate for inherited assets above $5.25 million is five to 16 percent, much lower than the federal inheritance tax rate of 40 percent.

Unlike other states with inheritance taxes, New York has a “tax cliff,” meaning if your inherited assets are greater than the tax exemption then the entire value of the asset is taxed. By contrast, other states with inheritance taxes only tax at the value above the exemption threshold. New York is one of the only states to institute its inheritance tax rate this way and although this may seem steep, the current tax rates are much more fair than they used to be.

A last will and testament spells out the final wish of the deceased, including how he or she wishes to allocate assets amongst friends and family. However, there are certain limitations to the extent deceased spouses may effectively cut out their surviving spouse from a will. Under New York estate laws, like so many other states, surviving spouses have certain claims to assets that cannot be undone by a will.

If an individual attempts to leave his or her spouse completely out of a will or only leave the surviving spouse a small amount, New York probate courts, known as Surrogate Courts, will step in and apportion a large part of the estate regardless of the text of the will. This is because just like in divorce, spouses have certain rights to community property like homes, cars, and bank accounts.

When someone passes away, with or without a will, all heirs with legal claims to the estate like spouses and children must be notified by the court. Next, the executor of the estate will need to find these persons and ask each of them to sign a waiver giving up their right to challenge the estate. Typically, this is no problem since close family members with estate claims are usually already mentioned in the will and the estate is apportioned fairly.

As we all know, aging presents a new and unique set of challenges each of us will face as we grow older. Despite that, most of us expect to remain in our homes and continue living with the independence we enjoyed for our adult lives. While it is certainly possible to maintain a high level of independence in our older years at home, there certain considerations we should always take into account to ensure we live in a safe and healthy environment.

First, before considering anything about your home, you should have your estate in order. No matter how young you may be, we all need a last will and testament and instructions in case of an unforeseen event. Once you have taken care of your estate, either through a will or a trust, you are ready to start thinking about ways to ensure your home is accommodating to your changing lifestyle.

If you are one of the many people with mobility issues, you will want to consider installing aids around your home to make getting around the house easier. Even once simple tasks like showering and going up and down stairs can become a challenge in old age. Some home mobility modifications you will want to think about are grab bars, bath chairs, and life chairs.

The law generally gives benefactors great leeway to set conditions for beneficiaries to inherit assets from an estate or trust. This is because the benefactor has every right to disperse his or her assets while beneficiaries have no such right. Often called “dead hand control,” these conditions are often meant to promote a certain type of lifestyle or at the very least prevent beneficiaries from harming themselves with the wealth passed on.

When conditional bequests and devisements are attached to a last will and testament, probate courts rarely concern themselves with whether the conditions are fair to heirs or even wise to try and implement. Rather, probate courts function to ensure proper transfer of assets and that the deceased’s wishes are carried out.

Some situations where benefactors may attempt to impose certain conditions for inheritance can include requiring an alcoholic seeking treatment, children and grandchildren holding down steady jobs, or even finishing school before collecting inheritance. Unfortunately, theses of demands rarely work out beneficiaries sometimes would rather choose to follow their free will than comply with demands of morality or industriousness.

All grandparents want the best for their children and grandchildren and many take the initiative to set aside part of an estate to help future generations get a head start in life. Forward thinking grandparents should also be aware there are certain tax and entitlement benefits rules seniors need to follow to remain in compliance with the law in order to avoid jeopardizing many of their own assets.

First, grandparents need to know the Internal Revenue System (IRS) places a $14,000 limit on untaxable gifts each year to individual grandchildren. Married couples may each give up to $14,000 to each and every grandchildren without any taxes, making the total $28,000 per year. Grandchildren receiving these gifts will not have to pay any income tax of these gifts, unless the assets generate income.

Additionally, grandparents can make direct payments to doctors and educational institutions to cover services on behalf of their grandchildren. The IRS does not consider payments for medical treatment and education as gifts subject to tax and grandparents can still give up to $14,000 each per year to their grandchildren without worrying about gift taxes.

When titling property pertaining to estate planning, there are many considerations to make in order to properly distribute assets and property to your loved ones upon your death. Depending upon your estate planning measures, you make seek to title property in order to pass automatically to a lineal descendant, in order to avoid probate, or in order to allow your executor to sell, gift, or transfer your interest in property.

Ownership

Sole ownership, the title position in which you are the sole owner of the property, is the most common form of ownership for single individuals. They have full rights to property while alive and also to pass at death. This type of title will pass subject to probate, by the decedent’s will or if they fail to execute a will, by intestate, also known as the process by which a court will determine your estate execution.

When titling property pertaining to estate planning, there are many considerations to make in order to properly distribute assets and property to your loved ones upon your death. Depending upon your estate planning measures, you make seek to title property in order to pass automatically to a lineal descendant, in order to avoid probate, or in order to allow your executor to sell, gift, or transfer your interest in property.

Ownership

Sole ownership, the title position in which you are the sole owner of the property, is the most common form of ownership for single individuals. They have full rights to property while alive and also to pass at death. This type of title will pass subject to probate, by the decedent’s will or if they fail to execute a will, by intestate, also known as the process by which a court will determine your estate execution.

Dementia and Alzheimer’s Disease affects more than five million Americans today. While a large majority of those affected are over the age of 65, it is not just a disease for the elderly. Symptoms of Dementia and Alzheimer’s Disease can occur in individuals as young as 30 years old, and currently affects an estimated 200,000 people in America. The diagnosis can often be missed or misdiagnosed as another condition or an association with the changes both men and women go through during their 40s and 50s, however, a comprehensive medical examination is required in order to properly diagnose those with early onset dementia. While the cause of the disease is not yet known, it is important to look to your family history as a way to determine if you or your loved one should be monitoring specific behaviors and changes in personality.

The thought of losing your memories, ability to perform basic tasks, as well as ability to think clearly, remember the time, date, or place, is a very scary feeling for anyone. As these functions start to go, it is important that the loved person, either elderly or young, has in place a comprehensive medical and estate plan, when the day comes that he or she is no longer able to make decisions for themselves. The unfortunate reality of this disease is that it is not a question or if, but of when they will no longer be able to make their own decisions based on a lack of capacity.

First, the individual in question must have their legal capacity assessed to determine if they are able to understand and appreciate the consequences of their actions in signing documents that give specific power to named individuals. In doing so, you should also consult a medical professional if you have doubt as to their ability to understand and make decisions. Also, if the individual has previously executed any wills, trust, or power of attorney documents, those should be revised as necessary to accommodate their current condition while still respecting their wishes.

The legal rights of illegitimate children and their ability to take under the terms of a trust have for years been the subject of many litigation proceedings. Illegitimate children are traditionally known as children who are born out of wedlock or to unmarried parents, however, the most widely known cases are those children who were born as the result of an affair by either or both parents. When one parent is the beneficiary of the grantor of a trust, the other spouse of the child, when old enough, may try to assert claims that they are also entitled to access the trust due to blood relation.

How Does an Illegitimate Child Take?

While traditionally under common law, an illegitimate child was not seen as a legal child of either parent, with no right of parental support or right of inheritance, today the laws have changed to better reflect the rights of an illegitimate child. Although states differ regarding their laws on wills and trusts, many now favor giving children rights, under statutes such as The Status of the Children Act as well as the Equal Protection Act. Under the Status of the Children Act, there is a presumption that any reference to children not further defined in a will includes both legitimate and illegitimate children, regardless of their relationship to the father.  

Contact Information