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New Jersey Court Decides Influential Elder Law Case

Published on: May 30, 2021 | by Ettinger Law Firm

Many legal scholars and others who are impacted by elder law issues are positively responding to a landmark decision in favor of people who care for their parents at home. This decision has the potential to result in a substantial increase in the number of homes that are transferred to caregivers.

The case in question, A.M. v. Monmouth County Board of Social Services, was decided by New Jersey’s Appellate Division and reaffirmed a New Jersey regulation, which permits older adults to transfer their homes to adult caregiver children without facing Medicaid penalties. The regulation permits the transfer of homes without penalty when an adult child provides care to a parent for a period.

An Influential Victory

Saving Wakanda: Estate Planning Lessons from Chadwick Boseman

Published on: May 14, 2021 | by Ettinger Law Firm

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

Lessons Learned About Residuary Clauses after Odom v. Coleman

Published on: April 7, 2021 | by Ettinger Law Firm

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.

4 Details about Utilizing Crisis Medicaid Planning

Published on: April 3, 2021 | by Ettinger Law Firm

Medicaid is a federal and state program available to individuals who satisfy certain eligibility requirements. Disbursements from Medicaid are designed to help people pay for long-term care costs. Long-term costs often create substantial financial challenges for elderly Americans as well as their loved ones who lose both time and income while caring for their loved ones. Medicaid is still one of the best ways to pay for long-term care.

Unfortunately, many Americans wait until catastrophic events occur before obtaining Medicare. Under stress, families can commit various errors including listening to misinformed individuals. Medicaid crisis planning allows a person to qualify for Medicaid nursing homes without spending all of a person’s assets.

When it comes to Medicaid, crisis planning exists for individuals who have an imminent need for Medicaid. This urgency can arise if a person is diagnosed with an immediate condition like ALS (“Lou Gehrig’s Disease) which requires immediate placement in a nursing home. In these situations, applicants often have no idea of how much nursing home costs.

Maxey v. Maxey: 3 Takeaways about Placing Real Estate in Trusts

Published on: March 10, 2021 | by Ettinger Law Firm

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.

4 Ways to Care for a Loved One in a Nursing Home

Published on: February 28, 2021 | by Ettinger Law Firm

There are more than 40 million family members in the United States who act as caregivers for loved ones. There are also many ways to provide the requisite care for your aging loved one.

If you recently placed a loved one in a nursing home, you’re likely still getting comfortable with the idea that your loved one will reside in a nursing home. You likely also want to make sure that your loved one receives the best care possible while there.

As a result, this article reviews some helpful strategies that you can follow to make sure your loved one in a nursing home receives the appropriate care.

3 Details to Remember about Signing Estate Plans Remotely

Published on: February 12, 2021 | by Ettinger Law Firm

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

3 Things to Remember About How Adoptions Impacts Estate Planning

Published on: February 9, 2021 | by Ettinger Law Firm

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

3 Critical Things to Remember about New York Holographic Wills

Published on: February 4, 2021 | by Ettinger Law Firm

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.

What Ochse v. Ochse Means for Trust Planning

Published on: January 22, 2021 | by Ettinger Law Firm

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.