Articles Tagged with new york elder law attorneys

According to the Council on Elder Abuse, as few as one in 24-cases of elder abuse go reported to the proper authorities, an unfortunate reality that many across the state and country are actively trying to change. To fulfil the goal of eliminating elder abuse, June is Elder Abuse Awareness Month to help bring to light many of the issues facing our beloved elders enjoying their golden years with family and friends.

Unfortunately, elder abuse can take place in many different settings including at home by a caretaker or family member, a hospital or rehabilitation setting, or a nursing home by malicious or neglectful staff. According to mental and emotional health website HelpGuide.org, as many as half a million cases of senior abuse are reported every year, a number that pales in comparison to the estimated numbers of unreported cases.

Often times, elder abuse and neglect manifests itself in deep emotional suffering like depression or becoming withdrawn, making it difficult to report and stop elder abuse from the onset. No matter how secure you believe your elder loved one may be, you should always remain vigilant for the signs and symptoms of abuse or neglect. Armed with knowledge, you can be the advocate your loved one needs should he or she become a victim of abuse or neglect.

When someone passes away without creating a last will and testament or trust, the individual passes away in intestate, meaning his or her assets will be distributed to heirs based on a line of succession under New York state probate laws. While most of us plan for the time after we pass away, not everyone goes through the process of creating a will or trust and this can create some complex legal issues when the estate passes through probate.

 

Unless a trust is created, every estate must pass through probate court in New York, even if the deceased created a clear and concise will. However, there are a few types of assets that will not need to pass through intestate sucession if the decedent pases away without a will. These include:

 

  • Life insurance payouts
  • IRA, 401(k), or other retirement account
  • Securities from a transfer-on-death account
  • Bank accounts set up as payable-on-death
  • Property owned with someone else in joint tenancy

 

These types of assets already have beneficiaries named to them and therefore do not need to pass through any type of probate. However, other assets like homes, vehicles, personal possessions, other bank accounts will likely be subject to intestate succession.

 

Who receives inheritance in New York

 

New York Estates, Powers, and Trusts Laws lay out a clear line of succession when individuals pass away intestate. Typically, surviving spouses and children are among the first in this line of asset distribution. This table shows the full line of succession:

 

 

Children and no spouse Entire estate
Spouse and no children Entire estate
Spouse and children Spouse inherits first $50,000 of estate property & 1/2 balance. Children inherit remaining balance
Surviving parents, no children and spouse Entire estate
Surviving siblings only Entire estate

When can the state seize and estate?

 

The state of New York can actually take possession of an estate without a last will and testament in very limited circumstances. For the state to seize the estate, the deceased must pass away without creating a trust or last will and testament and must not have any surviving relatives.

 

Other surviving relatives eligible to receive assets from an intestate include half-siblings, adopted children, children conceived posthumously. Foreign relatives are also to receive assets from an intestate decedent, regardless of immigration status in the country.

 

While many of these scenarios are unlikely for your beneficiaries to go through if you created a trust or estate, you may find yourself in a position to inherit assets from a relative who did not create his or her own last will and testament. By understanding intestates and lines of succession in New York, you can advocate for yourself as an interested party in probate court and recover duly owed assets.

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 deciding how to disburse assets in an estate, many individuals decide to create a trust over a last will and testament in order avoid probate court and create a public record of the events. The pros and cons of establishing a trust over a will depend on many circumstances, including what type of trust the grantor chooses to create and what types of assets fall into that particular trust.

Living trusts

One category of trusts is the inter vivos trust, created while the individual is still alive. Two main types of inter vivos trusts exist, revocable and irrevocable trusts. Revocable trusts allow the grantor modify, amend, or otherwise change any aspect of the trust as he or she sees fit.

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