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Rochester Estate Planning Law Blog

A special needs trust can give peace of mind and protection

A concern that occupies the minds of many New Yorkers as they formulate strategies for estate planning documents is how best to handle children. This is compounded when the child has physical or mental issues that make their care exponentially important. If the child will need minor or major assistance to live his or her life after a parent or guardian is gone, this must be accounted for in the estate plan and done so cautiously and comprehensively. A key factor is structuring such documents as a special needs trust in a way that the person will maintain eligibility for benefits from the government.

Various aspects must be considered as this process moves forward. One that is frequently overlooked is the beneficiary designation in a retirement plan. With a beneficiary designation, there are options to pass the inheritance to loved ones. It is possible to name a primary, secondary and a contingent beneficiary. It is even possible to designate beneficiaries as a group. While this can be useful, it can be complicated when there is someone with special needs who must be accounted for.

Discussing Estate Planning Goals

There are topics that many Americans do not feel comfortable discussing, even with friends and family. Some topics are too personal, others are simply uncomfortable. Estate planning touches on two topic that many people have trouble discussing: money and death.

A need-to-know basis

What are estate planning strategies to avoid probate?

Residents of New York State who are getting their estate planning documents in order might want to make the process as easy as possible for their heirs. Part of that is keeping costs in line. Since probate is expensive and can take a long time, many people who are formulating their estate plan will want to create strategies to avoid it. There are several ways to do this and it is important to understand them beforehand. They are the following: joint property ownership, death beneficiaries, having a revocable living trust and giving the assets as gifts.

To avoid probate with joint property ownership, there must be a right of survivorship and the property goes to the joint owner upon death. People who are using the right of survivorship will be joint tenants in the property. Then it will go to the beneficiary without probate. With death beneficiaries, the assets will become the property of the person who is designated as the beneficiary. They will not be part of the estate and will not be subject to probate. Examples include retirement accounts and payable on death accounts.

Blended families and estate planning

There are many pitfalls for the inexperienced estate planner. Do-it-yourself planning can go from confusing to hopeless with a just few, relatively common wrinkles. One of the most common factors that can make estate planning complicated is the blended family.

Assumptions and benefits

Strategies for estate planning especially important for women

Crafting an estate plan is vital for everyone in New York State, but it is particularly important for women. There are a variety of reasons for this. It might not be an issue that takes up a great deal of their thoughts, but that does not make it any less imperative. Since women live an average of nearly five more years than men, it is wise to think about this in the context of estate planning strategies. The assets they have will need to last longer; they might have a different work history and income; and finances could be negatively affected by the decision to be a stay-at-home parent.

Having a checklist of what to do to prepare for the future can avoid problems later. Knowing the financial assets is integral to effective planning and management. Having a full accounting of what is in savings and checking accounts, investment accounts and retirement plans is essential. The management of these assets should also be considered. The distribution of these assets after death can hinge on planning for it. The protection of financial assets can be boosted with insurance. If the spouse dies first, insurance can account for financial necessities and for the testator after her death to cover estate taxes and funeral costs.

People who do their own estate plan often make mistakes

New Yorkers who are considering their options for estate planning might be tempted to avoid the perceived costs and hassles of having a legal professional do it for them. In other words, they might take the DIY option as if it is some household project about which they can follow a set of instructions to complete it or make it up as they go along with no long-term harm done. There are some cases in which it might be sufficient to do a basic set of estate planning documents and not get legal help, but for most this is a mistake.

The needs and their complexity will dictate how much help is needed. If the estate is simple or there are few if any heirs, then there might not be a need to have a drawn-out process. However, for people who already have an estate plan and want to change it, have substantial assets, are in a family situation that is complicated, have young children or are seeking different types of plans based on various potential issues, it is imperative to have legal help.

The importance of picking the right executor when estate planning

Vigilant New Yorkers will make certain that they have crafted a comprehensive estate plan regardless of their age, assets and family situation. However, one factor that is often overlooked is the executor. Many people will have someone in mind to serve this vital function, but they do not consider the multitude of factors that go into the decision and whether their initial choice is the right one for the job. Being an executor is not easy and bearing various issues in mind is key when selecting the person to do it.

Frequently, the executor is still in the middle of grieving for the person who died simultaneous to doling the assets to the heirs. A tax return must also be filed and debts must be paid. The work an executor does is not completed over the course of a few days in the person's spare time. It can take months and even years. The way the estate plan is crafted can help with an efficient process for the executor.

Challenging a will based on testamentary capacity in New York

When a New Yorker creates a will, there are times when its legality will be challenged. To move forward with a will contest, there must be a good reason to do so. Challenging a will can be very difficult, but when there is a legal dispute, it is not impossible to have a will declared invalid if there is a justifiable reason for doing so. Knowing the various aspects of why a will can be contested successfully is important. One issue that might arise is a lack of testamentary capacity.

According to the law, a person can only make a will if he or she is legally an adult age 18 or older. This is testamentary capacity. A minor does not have the capacity to create a will. There is a presumption of testamentary capacity in an adult 18 older. If there is a challenge to a person's testamentary capacity, there must be a reason for it. These might include a person being declared insane, being under the influence, lacking the mental capacity to create a valid will, being senile, or having dementia.

Can you make your own estate plan?

The do-it-yourself crowd has access to tools that were unimaginable even a decade ago. Those tools can be powerful, but therein lies the problem. Power, in the hands of the inexperienced, can be disastrous. If you are considering creating an estate plan on your own, it is important to have an accurate understanding of exactly when a problem is beyond your ability to solve.

Online legal documents

Multiple issues can be addressed through estate planning

For New Yorkers who are thinking about the future and their estate plan, sometimes the most basic questions are the most important to answer. Such issues as an unexpected death, an injury or illness that leaves a person incapacitated, what happens to children if both parents are gone unexpectedly, how to handle certain health issues if the person cannot make decisions on his or her own, and financial matters in the future are all essential elements that must be addressed in an estate plan. Having a fundamental grasp of these situations can avoid pain and hardship later.

An unexpected death is emotional, but it can also lead to financial problems. Certain documents like a will, a trust, insurance policies and financial records can help the family members who are left behind. Also, having these documents updated regularly is important. Incapacitation is a justified concern. This is where a power of attorney comes in. A power of attorney will let a loved one make all the decisions on the person's behalf. It will encompass healthcare, property, financial matters and more.

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Weinstein & Randisi
290 Linden Oaks, Ste. 200
Rochester, NY 14625

Toll Free: 800-768-1780
Phone: 585-310-1578
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