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Rochester Estate Planning Law Blog

Lack of estate planning is common for those 55 and above

New Yorkers who have a well-crafted estate plan are taking necessary steps to prepare for the future. While this is a relatively obvious need, many ignore it. Surprisingly, a significant portion of those who fail to create even a basic estate plan are people 55 and older. Having strategies for the long-term is critical and legal help is vital to accomplish this.

A study by Age Wave and Merrill Lynch found that around 45 percent of people 55 and above have not made a will. The study examined 3,000 adults and gauged how people 55 and older felt about planning for the end of their lives. Although this can be a difficult issue to think about, nine out of 10 stated they were willing to talk about it.

When is a surviving spouse disqualified in an intestate case?

Not every New Yorker has an estate plan that details how he or she wants property distributed after death. Similarly, not every family situation is a smooth one where even an intestate case is relatively easy to deal with where the state will simply follow the law in determining what the spouse and other heirs get and there is little dispute. One situation that can be confusing is if there is a surviving spouse, but the law requires that he or she be disqualified. To address this situation, it is important for the heirs to have legal assistance.

The surviving spouse will not be able to inherit the decedent's property if there was a final judgment or decree of divorce, if the marriage was annulled, if it was nullified or dissolved because of absence if this was in effect at the time of death. If the marriage had been voided because it was incestuous, bigamous or prohibited will also eliminate the surviving spouse as an intestate heir. Had the spouse gotten a final divorce decree, an annulment or dissolution due to absence and it occurred outside the state, it is not viewed as valid.

A health care proxy and a living will can work in tandem

A health care proxy and a living will are both legal documents that address the type of medical care you would or would not like to receive in the event you become unable to communicate those wishes to your doctors. Although these documents are often used by those who are planning for end of life care, they are not just for the elderly. All adults can use these documents to be prepared in case something unexpected happens.

A health care proxy names an alternate decision maker

Four tips to help art collectors pass on their art

An art collection creates much joy for those that love art. It can also be a serious investment. So, when an art collector contemplates estate planning, what will happen to his or her collection is a serious consideration.

For many it is already is a serious consideration. According to Reuters, investment bank UBS recently surveyed art collectors with more than $5 million in investable assets and found their primary concern was the best way to pass on their collection. Handing down a collection can be tricky, particularly if your heirs do not know much about art. Here are four tips to help you pass along your collection.

Gifting at the right time can avoid tax implications

New Yorkers who are seeking to shield their assets as efficiently as possible yet still want to be generous with their loved ones should think beyond the simplest aspects of drafting estate planning documents. Understanding the available loopholes to perform certain acts of giving are wise strategies to avoid tax implications while providing loved ones with items the person wants them to have. For example, the beginning of the year is generally viewed as the optimal time to give estate planning gifts. To understand the law fully and be protected, it is always wise to have legal assistance.

Under the law as it stands, less than 1 percent of estates will face taxes, so the majority does not need to be concerned about gifting to keep estate and gift taxes under control. However, there are other reasons why giving gifts to loved ones on an annual basis is a wise step and is a sound strategy when crafting an estate plan. Giving a lifetime gift will help loved ones immediately and they will not need to wait until an undetermined time. The person giving the gift will know how the recipient is using the gift and provide a guideline for the future.

Keeping track of an estate plan when getting remarried

Remarriages and blended families are not uncommon in New York. With that comes certain issues that, if left unattended, can cause family disputes with rancor and the potential legal ramifications. Those who have gotten remarried, and have children from the previous marriage, will want to take steps to shield their children and avoid missteps that can cause negative consequences.

For those who did not have an estate plan and then got remarried, it is of even greater important to take those steps with estate planning strategies. By failing to follow this advice, children from the first marriage could find themselves left with nothing.

After divorce, understanding how to adjust an estate plan is key

When New Yorkers create an estate plan, those who are married will inevitably include their spouse as a key part of it. This can be as the predominant heir and perhaps the executor of the estate. However, after drafting estate planning documents, some marriages will come apart and the couple will divorce. This can impact the estate plan in myriad ways. After a divorce, there are important considerations that must be factored in given the new circumstances.

The estate planning attorney should receive a copy of the divorce agreement, so the document can be adjusted based on the post-divorce obligations. Many had a health proxy that granted the former spouse the power to make health care decisions. This should be changed if the spouse is no longer the one whom the person wants to make those determinations.

What factors affect who gets the pet in divorce?

While divorce can be contentious on its own, when a beloved pet is at stake, things can turn downright nasty.

While New York doesn’t have as advanced pet custody laws as some states, they have been moving in the right direction. Here’s what impacts who gets the family pet:

When can a surviving spouse be disqualified as such in New York?

When a person creates an estate plan, there are laws that dictate how it will be handled after that person - the testator - has died. This is true regardless of the device that is used in the estate plan such as a will, a trust or anything else. The surviving spouse is an important part of the document. However, there are times when there is a dispute over the surviving spouse and if the classification as such remains in effect. Understanding the law as to when the person is no longer considered to be the surviving spouse is important to the probate process after death.

If there was a divorce, an annulment, a declaration that the marriage is nullified, or dissolved because of absence when the testator died, the person is no longer considered a surviving spouse. If the marriage was deemed incestuous, bigamous, or prohibited, the person will not be considered a surviving spouse. If there was a divorce, annulment, nullification, or dissolution because of absence and it was decided outside the state of New York, the person is no longer a surviving spouse.

What should I know about guardianship in New York?

New Yorkers with concerns about loved ones and want to make certain they are taken care of when they are incapable of taking care of themselves should understand the alternatives they have under the law. One method is through a guardianship. This is especially important when it involves senior citizens who might need long-term care. Having a grasp about the basics of a guardianship is a fundamental aspect in any situation. As always, legal help is also a critical aspect of ensuring an elderly and infirm loved one is cared for.

With a guardianship, a person can make decisions on another's behalf if that person cannot do so themselves. It is for children, incapacitated adults and the developmentally disabled. There are several courts that oversee guardianship in New York. They are Family Court, Surrogate's Court, and the Supreme Court. The type of guardianship that is requested will dictate the applicable court.

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    — Christine and Robert Simonson, Fairport
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    --David and Ajia Cherry, Fairport
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