Articles Posted in Elder law estate planning

Every estate plan should include a living trust. A living trust is different from a trust and should be part of your estate plan along with a last will and testament and power of attorney (financial and medical) documents.

Why a living trust is an important estate plan document

A living trust is a written legal document that partially substitutes for a will. With a living trust, your assets (your home, bank accounts and stocks, for example) are put into the trust, administered for your benefit during your lifetime, and then transferred to your beneficiaries when you die. Living trusts, have great value as part of estate planning, but not necessarily to avoid probate. A living trust, if properly prepared and administered, can be a very effective tool to manage assets in the event of illness, disability or the effects of aging. In light of the aging population, the use of living trusts to minimize the risk of elder financial abuse and address similar issues, should be an important consideration in an estate plan.

A power of attorney, including a heath care power of attorney, are crucial estate planning documents. This is especially important if you have Alzheimer’s disease, dementia, or are suffering from another chronic and debilitating illness. Individuals who are widowed or alone should carefully consider who they can trust to manage their financial and medical affairs when they lose the ability to make such decisions themselves.


  •     Power of Attorney: A power of attorney is a legal document you can use to appoint someone to make decisions on your behalf. The person you designate is called an “attorney-in-fact.” The appointment can be effective immediately or can become effective only if you are unable to make decisions on your own.

o   New York State has a short-form and a long-form Power of Attorney form.

A trust is an important estate plan document. Other estate planning documents include a last will and testament and intestate succession.

Every state has laws that determine who your heirs are and what proportion of the estate the heir is entitled to receive. Heir refers to blood relatives and are usually grouped according to closeness of relationship:  Children and spouse; siblings and parents; aunts, uncles, and cousins. Where there is no will or trust, the estate is deemed “intestate” and must be settled according to state probate law. Individuals who inherit property under a will or trust are referred to as beneficiaries. Persons can be named as beneficiaries on bank accounts, life insurance policies, financial portfolios, retirement accounts, and certain types of titled property such as real estate – they need not be heirs. Remember heirs can be beneficiaries, but beneficiaries are not always heirs.

To complete an estate plan, you should consider adding trust documents.

Adding trust instruments to your estate plan can help a surviving spouse and other beneficiaries have access to assets while the rest of the estate is wound up. Especially if there are young children or children with special needs ensuring continuity of financial security to survivors is at the forefront of individuals making end of life decisions. There are many types of trust instruments, such as a marital “A” trust or a bypass “B” trust. These trusts can also be revocable and irrevocable.

Revocable or living trusts

A revocable trust permits the passing of assets outside of probate, the legal proceeding that winds up and settles the estate of the deceased person. Also known as a living trust, you (the grantor) are able to retain control of the assets during your (the grantor’s) lifetime. A living trust is flexible. They can be dissolved at any time should you wish to change the beneficiary or you yourself need access to the trust assets for any reason. Once you (the grantor) dies, the living trust becomes irrevocable. A living or revocable trust is subject to estate taxes, unlike an irrevocable trust. Lastly, you are able to name yourself the trustee or co-trustee and retain complete ownership and control over all of the trust assets during your lifetime.

It is not uncommon in our region for people to own real property outside of New York State. Increasingly, people own other home or investment properties out of state and even out of the country. A will generally disposes of all of an individual’s assets. The rules are different however if the asset is real property. There are three rules to keep in mind and carefully consider when dealing with assets outside of New York as part of your estate planning process.

Consider the following rules when drafting or revising your will:

  1.   If the out of state asset is real property it is vital to develop your estate plan in conjunction with the law in that locality. Real estate assets are governed by the laws of the country or state in which they are situated. This means that the law of the other locality will determine if the New York will is recognized as valid there with respect to the real property.

Some couples approach their estate planning lawyer seeking advice on creating a joint will. Generally, the estates lawyer will frown upon such a suggestion because in practice, joint wills are fraught with problems. A joint will can be created by a married couple and is a single will. A joint will is signed by the couple and in it contain provisions leaving all of their assets to each other. The reason why joint wills are not more commonly used as an instrument to bequeath gifts upon death is that usually, even in longtime marriages, most married couples do not have identical wishes regarding their assets.

Joint tenancy vs. tenancy in common

Married couples generally own real estate assets as joint tenants. A lesser form of home ownership is a tenancy in common. The key difference between the two is their effect on the distribution of assets at the death of one of the partners. Joint tenancies contain a right to survivorship. This means that at a partner’s death, their share of any joint assets become the sole property of the surviving partner by operation of law and outside any asset distribution of a will for example. In a will, assets held as a tenancy in common are distributed according to the terms of each person’s will. Tenancy in common may be a better ownership form where couples wish to gift or bequeath their assets or shares in an asset in different ways. This may be an attractive form of ownership for couples with children from a prior marriage particularly if the new spouse has no children of his or her own.

Despite the prevalence of aggressive, life-prolonging medical procedures, such as feeding tubes, ventilators, and dialysis, once a patient enters a long-term care hospital, L.T.C.H. for short, more than one-third of them will never return home. According to the New York Times, the median survival for such patients is 8.3 months. Much of the time will be spent in a combination of hospitals, skilled nursing home, and specialized rehab facilities.

The high and low spots

Patients in their 60s with musculoskeletal diagnoses, like complications from a hip fracture or joint replacement, do better in L.T.C.H. institutions then people over 80. A high number of patients that are transferred to L.T.C.H facilities from hospitals have undergone a medical procedure called a tracheostomy. Also called a stoma, a tracheostomy is a surgical opening in the windpipe to accommodate a breathing tube that is attached to a ventilator. This procedure is commonly performed on patients who suffer from chronic and severe lung disease and neck cancers among other neck and voice box disorders.

Parents with dementia and other memory loss disorders, such as Alzheimer’s and Parkinson’s disease, present extraordinary challenges for the parent and adult children tasked with assisting them. Drafting a will, making health care decisions, and taking care of legal and financial matters are just some of the items that must be sorted out, hopefully before the onset of the worst conditions.

The first step when caring for a parent is to assess their mental capacity. It is important that you seek medical guidance, including a diagnosis, when you observe signs of dementia. If your parent has been diagnosed with dementia-causing illnesses, like Alzheimer’s or Parkinson’s disease, adjustments should be made to all legal and financial matters.

Durable power of attorney

Alcohol and drug abuse among adults 60 years and older is underestimated and under-diagnosed. To caregivers, whether they are a spouse, adult child, or a home health aide, understanding how and where to get help for their loved one is critical to getting a person in treatment.

Nationwide, the U.S. Centers for Disease Control and Prevention (CDC) researchers found a 33.3 percent increase in older adult (ages 65 and older) deaths from heroin between 2014 and 2015 (heroin deaths for all ages rose only 21 percent).

Doctors fail to diagnose drug addiction in older adults because some of the symptoms experienced by alcohol and drug abusers mimic symptoms more common in older adults generally. Alcohol and drug abusers, like older adults, suffer from depression, diabetes, and dementia. It may be harder to attribute the cause to alcohol or drugs rather than old age, so treatment is under-diagnosed.

This is the last post on gifting digital assets. So far, we have examined digital assets generally and digital asset planning in the estate planning process and the business succession planning process. Today’s post will review how to handle digital assets in the estate administration process.

Traditional estate administration process v. Estate administration process with digital assets

Let’s say I’m an executor in an estate and I’ve identified digital assets that decedent made in his or her lifetime. How is the estate administration process with digital assets different from the traditional estate administration process without digital assets?

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