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Rochester Estate Planning Law Blog

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.

Contracts in elder care facilities

The health care industry is not known for its transparency when it comes to cost. Elder care and assisted living facilities mimic hospitals in hiding, or at least not promoting, the fees and costs associated with using them. If you are considering one of these facilities for yourself or an elderly loved one, it might be a good idea to have an attorney review the contract before you sign.

Who's on the hook?

Probate administration requires experienced legal help

New Yorkers will undoubtedly have a great deal on their plate when a loved one dies. Between the emotional impact and the need to plan for a funeral, many will believe that legal issues should take a backseat. However, while grieving is unavoidable and a natural human response, it remains necessary to maintain vigilance and prepare for probate. Often, people will forget the importance of navigating the decedent's finances. This can lead to mistakes that can be costly. Having legal assistance with probate administration is essential.

Probate administration is critical whether the decedent had a will or not. When the person died intestate, it becomes even more critical to have legal advice. There are laws in New York when a person died without a will. Along with that will be the debts the person had accrued and need to be paid. There will also be the assets that will be distributed to family members.

What you should know before you plan that big gift

As part of your estate plan, you may have considered making a large gift to a loved one while you are still alive. There are many reasons to do this. Perhaps you want to help someone in need, invest in a loved one’s business or just enjoy their enjoyment of a piece of property. Some property is easier to transfer now than making your family put it through probate. Before you make that big gift, however, you should know a few things about the federal gift tax and its exemption.

An estate plan is not just for older, married people

There are certain aspects of life that New Yorkers will prioritize based on their age and current life situation. For example, a person with a family who is established in his or her career will likely place a greater emphasis on having all the essentials in place. That includes health insurance, a stable home, a stable job and an estate plan. For younger people - especially millennials - these might take a backseat toward becoming established and enjoying life with a freewheeling attitude. However, the failure to take the necessary steps in drafting estate planning documents is something these individuals regret every day. For millennials, understanding what documents are important and why is key to having a viable estate plan.

There are many incidents and accidents that can befall a person at any age. People do not like to think about the potential dangers that lurk around every corner, but today, there are so many risks that come from the behaviors of others that it is impossible and unwise to fail to account for these worries with estate planning. Having extensive and comprehensive documents for the future after a person is gone might not be as imperative when that person does not have dependents and major assets, but it is still a vital part of life. There are certain steps that millennials should take when crafting an estate plan.

Tax implications and estate planning for the unmarried

While crafting a comprehensive estate plan is often framed as a safety mechanism for family members, not every New Yorker is married. This could lead to a perception that they do not need to move expeditiously in creating an estate plan. However, it is important for everyone to have an estate plan and this combines with the new Trump Administration tax laws should be factored in when creating or updating it. For single people, it is wise to understand how to prepare an estate plan with the new tax laws in mind.

For 2018, the federal estate and gift tax will have an exemption for individuals for up to $11.18 million. That will rise to $11.4 million in 2019. As time passes, there will be adjustments for inflation. Those who go beyond that exemption will face a 40 percent tax rate. If the estate is worth less than $11.4 million at the time of death in 2019, the person can leave all the assets to loved ones with no concern about a federal estate tax. There is still a need for an estate plan if there are assets that the person wants to go to certain people or the single person does have children. Many people might have put their estate plan together while the estate tax went into effect with half the amount that it is now subject to taxation and they took steps to shield their assets. That is no longer required and changing the document could be a wise step.

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