Articles Tagged with albany elder law

The New York Assembly health committee recently held the first of two meetings on a proposed legislation that would allow some terminally-ill individuals with less than six-months to live the option to use medication to die in their sleep in cases where their suffering is unbearable. The committee members heard testimony from a variety of individuals including patients and their families, health care providers, legal experts, medical ethicists and religious leaders.

The committee’s exploration comes in the wake of a ruling by the New York Court of Appeals last year that ruled against three terminally-ill patients asserting they had a Constitutional right to die under their own conditions. The petitioners asked the Court of Appeals to shield their doctors from criminal charges in cases where physicians prescribe patients a lethal medication to end their lives.

New York’s Medical Aid in Dying Act, sponsored by Assemblywoman Amy Paulin and Sen. Diane Savino, would permit terminally-ill patients deemed mentally fit to end their lives by using medication provided to them by a physician. Proponents of the law assert that doctor-assisted dying is oftentimes the only alternative to a long and agonizing death, during which the patient may experience complete loss of their bodily functions and mental faculties.

A recent report by Fidelity Investments indicates that couple’s may need to put away even more in their retirement over the coming years to cover the cost of their health care. According to the report, a married couple retiring this year at the ages of 65-years old would need a staggering $280,000 saved away to pay for the cost of their health care over the remainder of their lives, a 2 percent increase over the previous year and a 75 percent increase from Fidelity’s first estimate of retirement health care costs in 2002.

Fidelity estimates that on average, men will need a total of $133,000 for healthcare expenses in retirement, while a woman would need about $147,000 because of their longer life expectancies on average. The company’s estimates are based on calculations that may shift due to fluctuations in the economy as well as changes in how the federal and state governments regulate the healthcare market.

“Despite this year’s estimate remaining relatively flat, covering health care costs remains one of the most significant, yet unpredictable, aspects of retirement planning,” said Shams Talib, executive vice president and head of Fidelity Benefits Consulting. “It’s important for individuals to educate themselves and take steps while working to ensure they are prepared to address these costs. Otherwise, people risk having to dip into more of their savings than originally anticipated, potentially impacting their overall retirement lifestyle.”

In the last decade, digital platforms like Facebook and Twitter have exploded in popularity to the point where millions of people, both young and old, have accounts and regularly post and share information with one another. Other media like Google Drive and Dropbox allow allow anyone with an email address to set up an account and store and share information across the cloud with anyone the individual gives access to.

Just like with any other material assets, we need to plan for someone to take charge of managing these digital accounts for when we pass on. Fortunately for New York Residents, state law allows individuals to grant executors of their estate legal and practical powers to digital assets upon death. New York is one of several states which passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the New York Consolidated Laws §13-A-1 through §13-A-5.2.

The RUFADDA defines “electronic communications” as a type of digital assets that requires stronger privacy protections as these are often private communications between one person and another. The law requires individuals give explicit consent for the executor of the estate to access these sensitive electronic communications, no matter how benign they may be. Whether these digital assets are simply an email or social media account, certain procedures must be followed to ensure quick and expedient access.

While none of us expect to become so ill we cannot manage our own affairs, we should nonetheless prepare contingencies in case these types of situations arise out of an injury, old age, or another unexpected event. One of the most important types of planning we can do is to create a financial power of attorney to allow a trusted person to manage money for health care and and lifestyle to ensure we continue to live comfortably with dignity.

 
With a financial power of attorney, an individual can perform many duties on your behalf such as making bank deposits and withdrawals, paying bills, manage government benefits, and watch over any financial investments. Income and finances are an incredibly important part of our lives and need continuous oversight to ensure there are no interruptions that could negatively impact our ability to provide for ourselves.

 
In New York, any competent person may serve as your agent to manage your finances. While legal and financial management experience are always a plus, the individual creating the financial power of attorney need only choose a capable and trusted person, depending on the situation he or she may find themselves in. When and for how long the financial power of attorney lasts depends entirely on the wording of the document.

New York’s Surrogate’s Courts handle a wide variety of civil issues, mostly related to trusts and estates, guardianship, and adoption. The Surrogate’s Court is established in every county in New York, helping to provide residents with timely and effective due process for legal issues under the court’s jurisdiction. The following is a brief overview of the types of cases the Surrogate’s Court handle and what individuals can expect from the proceedings.

Probate – Probate proceedings deal with the process validating the last will and testament of a deceased person, if the individual created such a document. A last will and testament are the final directions given by the deceased to allocate his or her to estate to heirs and other beneficiaries.

It will be the responsibility of the person named as the executor of the estate to file the will with the probate office of the Surrogate’s Court, collect all the necessary documents, pay off creditors, and finally divide assets of the estate among beneficiaries per the wishes of the deceased.

In New York state, individuals can place their estate into a trust to distribute to beneficiaries and thereby avoid lengthy and costly probate proceedings in a Surrogate’s Court. While a traditional last will and testament may be better for some individuals, for many it may be best to create some form of a trust, particularly a living trust, to ensure loved ones receive their portions as quickly as possible and with as little tax liability.

It is also worth noting that even after creating living or inter vivos trusts, you will still need a last will and testament to ensure any of your final wishes are carried out and assets left out of the trust are dealt with as you see fit. Without a will to cover newly acquired assets or those not named in the trust, the remainder of your estate could considered in intestacy and pass on to your heirs in succession under New York law.

While creating a trust is a fairly straightforward affair, it may still be necessary to consult with financial advisors or an estate planning attorney to ensure proper transfer of your assets. The first step will be to create the trust and there are many resources from the New York State Bar and Surrogate’s Court system online you can go to for forms and information how to file.

Advance directives for health care are legal documents that ensure an individual’s wishes are carried out if he or she cannot make decision. New York State recognizes three types of advance directives including a health care proxy, living wills, and do not resuscitate orders (DNR). Even younger and more healthy individuals should consider putting these types of directives into place in case of a serious accident or medical event.

Health Care Proxy in New York

A health care proxy allows individuals to name a health care agent who will make decisions if that person cannot make those decisions for himself or herself. Under state law, these types of decisions can take effect after two doctors examine the individual and determine that person cannot make decisions for his or her health. New York state offers standard forms for a health care proxy.

Planning your estate and having a last will and testament is important to ensuring your final wishes are carried out and your heirs receive everything you intend to pass on to them. Whether you are the testator or executor, there are many duties you will need to perform to make sure an estate passes as quickly as possible through probate court, including calculating the costs associated.

 

First and foremost, New York probate courts handling estates have a variable schedule of filing fees which depend on the size of the estate. Section 2402(7) of New York’s Surrogate’s Courts Procedure Act (SCPA) are as follows:

 

Value of Estate or Subject Matter Fee Fee Rate
Less than $ 10,000 $45.00
$10,000 but under $20,000 $75.00
$20,000 but under $50,000 $215.00
$50,000 but under $100,000 $280.00
$100,000 but under $250,000 $420.00
$250,000 but under $500,000 $625.00
$500,000 and over $1,250.00

 

Section 2402(8)(a) of the SCPA also proscribes a fixed fee for filing a petition to commence certain proceedings. These types of fees can range anywhere from $10 to $75, depending on the type of motion filed. Such petitions can include common probate proceedings such as filing wills and suspending a fiduciary.

 

What are the fees for executors in New York?

 

Under section 2307 of the SCPA, executor fees are based on the value of the estate. These fees can be between 2 and 5% of the total amount of estate money the executor receives and pays out. Executor’s fees in New York are as follows:

 

  • All sums of money not exceeding $100,000 at the rate of 5 percent
  • Any additional sums not exceeding $200,000 at the rate of 4 percent
  • Any additional sums not exceeding $700,000 at the rate of 3 percent
  • Any additional sums not exceeding $4,000,000 at the rate of 2.5 percent
  • All sums above $5,000,000 at the rate of 2 percent

 

These amounts come out of the value of the estate and in cases where multiple executors handle an estate, the split is commiserate on the amount of work performed by each individual.

 

Attorney costs for probate of a will

 

When going through probate, it is strongly suggested the executor seek help from an experienced and dedicated New York probate and estate lawyer. The fees associated with a probate attorney depend on size of the estate, work put in by the executor, and the complexity of the case.

When planning their estate, many individuals consider setting up some form of trust to avoid family squabbles over assets, particularly the home. To achieve the goal of a smooth transition of assets and maintaining family harmony, most folks choose to set up some form of trust to avoid probate and reduce the amount of time and money executors need to spend in court.

Although many may not realize the significant wealth they have accumulated over the course of their life, the reality can quickly set it when it comes time to pay estate or gift taxes when passing on a home to heirs. After decades of skyrocketing real estate prices, home that were once purchased for several thousand dollars may now be worth millions, depending on the condition of the home and location.

One way for highly wealthy people to pass on their home with as little tax liability to heirs as possible is the creation of a qualified personal residence trust. Just like any type of estate plan, there are benefits and drawbacks to consider and it is strongly advised individuals consult with an experienced estate planning attorney to draw up trusts and wills.

One of the most common estate planning goals for high net worth married couples is to reduce their estate’s tax liability by taking full advantage of state and federal estate tax exemptions. The 2012 Tax Relief, Unemployment Reauthorization, and Job Creation Act (TRA) gave couples much more leeway to plan for their state through the portability of a deceased spouse’s unused estate tax exemption.

In 2017, the estate and gift tax exemption will be $5.49 million dollars for an individual, and just under $11 million for married couples, thanks to the 2012 Act. While there are a number of ways to properly implement the portability of estate and gift tax exemptions, one of the more common ways is to create a family trust where the assets of the first spouse to pass away will be placed in under the individual’s own gift and estate exemptions.

Without portability, couples can end up leaving millions of dollars in assets subject to taxation because of improper planning. Two of the most common reasons couples fail to properly use take advantage of gift and estate tax exemptions are unbalanced asset ownership or an inefficient estate plan.

Contact Information