Weinstein & RandisiEstate Planning and Elder Law Firm | Weinstein & Randisi | Rochester, NY2024-03-18T20:30:58Zhttps://www.randisilaw.com/feed/atom/WordPressOn Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=517062024-03-18T20:30:58Z2024-03-18T20:30:58ZAlarming forgetfulness
Cognitive decline due to age may start small but can eventually reach a point where people struggle to follow recipes or fulfill their financial obligations. Often, older adults struggling to handle independent living don't readily admit their major oversights to family members. Instead, those visiting an older adult might witness seemingly innocuous incidents. Someone coming into a room and then declaring they can't remember why they entered the room is a warning sign of potential memory issues. As someone's memory declines with age, their risk of major financial or medical oversights increases.
Aggressive collection efforts
Sometimes, family members do not disclose their day-to-day struggles but may reach out when certain issues reach a boiling point. For example, they may ask for help when they face a creditor lawsuit for an eviction. Aggressive attempts by businesses and creditors to collect on debts are often indicators that someone has gone an inappropriate amount of time without making payments or communicating with their creditors. Those collection efforts can be a warning sign of diminished ability and more challenges to come.
A diagnosis with a poor prognosis
Certain health issues, including Alzheimer's disease, start with small symptoms and slowly worsen over time. Someone recently diagnosed with Alzheimer's disease or other debilitating health conditions may not yet have major symptoms. Sadly, as their condition progresses, they may experience additional challenges meeting their own needs and living independently.
Family members who worry because of someone's memory issues, medical challenges or financial oversights may have reason to seek a guardianship for conservatorship. Taking legal action may protect someone who can no longer properly manage their own affairs.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=517042024-03-17T22:14:09Z2024-03-17T22:14:09ZWhat is a durable power of attorney?
Power of attorney documents allow the principal drafting the documents to name an agent or attorney-in-fact to act on their behalf. Should the principal become incapacitated due to injury or illness, the agent they selected can conduct certain financial transactions or make medical decisions on their behalf.
Durable powers of attorney are a bit different than standard documents. They include special language to ensure that the documents continue to protect someone if they become permanently incapacitated. Someone who loses their testamentary capacity due to cognitive decline or who enters a persistent vegetative state might lose the protection of powers of attorney when they are most vulnerable.
Durable documents essentially retain their authority regardless of how long someone remains incapacitated. The principal can select someone they trust to hold the same long-term authority that a guardian or conservator might.
In New York, the rules for durable powers of attorney often require that people create separate documents for financial and medical matters. The creation of separate documents gives someone an opportunity to more effectively protect themselves by limiting the authority granted to any one person.
Even if someone hopes to remain healthy throughout their golden years, planning for the worst-case scenario is usually a smart move. Creating durable powers of attorney can give someone peace of mind as they age and greater protection if their health declines. Adults who create comprehensive estate plans are in the best position in this regard, as they prepare for retirement.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=517022024-03-17T13:16:22Z2024-03-17T13:16:22ZComplex circumstances require careful planning
Theoretically, New York state statutes protect inherited resources as the separate property of the individual bequeathed assets by a family member. They are not automatically vulnerable to division should a divorce occur.
However, people who inherit large amounts from their parents while married often make a major mistake. They commingle their inheritance with marital property. Perhaps they deposit the money they inherit in a shared bank account, or maybe they add their spouse to the title of real property that they inherit. In scenarios involving commingling, the other spouse could claim that inherited resources are part of the marital estate if they divorce.
The simplest way to avoid this issue involves eliminating a direct inheritance. If a parent puts resources into a trust for their child, those resources remain the property of the trust until the adult child requests a distribution of assets. If a trustor adds the right conditions and rules to a trust, they can give their adult child access to lifestyle-enhancing resources while simultaneously protecting those resources should the child ever divorce.
Complicated family circumstances are one of many reasons why New York testators may require more creative estate planning solutions, including the creation of a trust. Utilizing the right documents in an estate planning strategy can make a major difference for those who want to leave a meaningful legacy for their loved ones.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=517002024-03-16T18:17:31Z2024-03-16T18:17:31Zensure your children receive your legacy responsibly and potentially protect it from certain risks.
Maturity management
Imagine your child receiving a large inheritance at a young age. While exciting, financial responsibility may not be fully developed. A trust can allow you to dictate the age or specific milestones at which your children receive the inheritance. This phased approach can enable them to gain financial experience and make informed decisions with smaller initial distributions.
Shielding from creditors, lawsuits and divorce
Life can be unpredictable. An unexpected lawsuit or mounting debt could jeopardize your child's inheritance. Thankfully, a properly structured trust can act as a legal shield, protecting the assets from creditors and helping to ensure your legacy stays intact for future generations.
Thus, even if beneficiaries face personal liabilities, the assets held within the trust remain insulated, preserving your intended inheritance for your children. Moreover, in the unfortunate event of a divorce, assets left directly to your child could become part of the marital estate. Luckily, a trust can prevent this by keeping your offspring’s inheritance separate.
Curbing frivolous spending
Let's face it: not everyone is a financial whiz. A trust can allow you to dictate how the inheritance is used. You can set up distributions for specific purposes like education, housing or starting a business. This can help ensure your hard-earned money goes towards your children's long-term well-being and not frivolous spending.
Trusts can serve as a valuable tool for thoughtful estate planning. By establishing a trust, you can help to ensure that your children inherit your legacy responsibly and use it to build a secure future. Seeking legal counsel can make an impact in determining the best type of trust for your specific needs and family situation. Remember, a well-crafted trust can safeguard your legacy for generations to come.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=516982024-03-13T20:52:53Z2024-03-13T17:22:57ZHow Medicaid affects someone's legacy
New York imposes very strict limitations on Medicaid coverage. Applicants have to provide financial records to verify that their income levels and personal holdings are below certain thresholds. What assets someone does have could be at risk of liquidation after their death because they received Medicaid coverage.
Federal and New York state laws require recovery efforts after Medicaid recipients who need long-term care die. The New York Medicaid estate recovery program can claim the remaining assets in someone's estate. Certain assets that did not preclude someone from getting benefits could be at risk after they die.
For example, someone's home usually doesn't count towards their total assets for the purpose of qualifying for Medicaid coverage. Still, their home might be at risk of liquidation after their death if the state paid for long-term care on their behalf. Someone's primary residence might be their most valuable asset, and the forced liquidation of the home could eliminate the inheritance they hoped to pass to their children.
Advance Medicaid planning can help someone protect their assets in addition to improving their chances of qualifying for Medicaid when they need help later in life. Those who understand how Medicaid handles long-term care benefits may come to understand the benefits of Medicaid planning. As such, thinking about their future healthcare needs can be as important as thinking about what someone hopes to leave for their loved ones during the estate planning process.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=516962024-03-11T15:56:26Z2024-03-11T15:56:26ZAsset protection planning
Perhaps someone intends to start a small business and worries that their resources could be at risk of liquidation should their business fail or face major lawsuits. Maybe someone worries about accruing unsustainable levels of debt during their retirement years. The decision to transfer assets into a trust before someone faces aggressive collection activity could potentially preserve resources by protecting them from creditor claims during someone's golden years or even after their death.
Benefits planning
Older adults often take for granted that Medicare can provide them with support for health challenges as they age. However, many older adults discover the gaps in Medicare coverage when they have a surprise medical challenge. Trusts can change the ownership status of crucial assets and potentially make it easier for someone to quickly qualify for Medicaid if they require long-term care support later in life. People who want to leave resources for a family member with special needs might also use trusts for the same purpose. A family member can derive regular support from the trust without losing their state benefits due to a large inheritance.
Tax planning
There are several kinds of taxes that could affect someone's estate. Some people end up responsible for estate taxes when they have millions of dollars in property. Other times, there could be capital gains taxes that diminish the value of inherited assets should family members try to sell the resources they received from others. The decision to transfer certain property into a trust can diminish the value of an estate and reduce the chances of estate taxes. Having a trust manage certain resources could also diminish the likelihood of other tax responsibilities, such as capital gains taxes incurred by impulsive family members selling assets.
Trusts are also useful for providing an inheritance to those in difficult personal situations. Those struggling with addiction or in an abusive marriage might benefit from the protection of a trust. Trusts can also reduce the likelihood of challenges against testamentary documents and conflict among someone's beneficiaries.
Learning about the most common uses of trusts by seeking legal guidance may help people determine if they should create and fund one while planning their estate.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=516922024-02-14T20:13:10Z2024-02-14T20:13:10Ztime-consuming and costly process for families after the passing away of a loved one.
Fortunately, there are ways to mitigate or even entirely avoid the probate process through careful estate planning. One estate planning option that bypasses probate involves the use of trusts. Mitigating the probate process can ensure that individuals’ assets are distributed according to their wishes with minimal hassle and expense.
The role of trusts in estate planning
A trust is a legal arrangement in which one party (the grantor) transfers assets to another party (the trustee) to hold and manage for the benefit of a third party (the beneficiary). Trusts offer several advantages over traditional wills. First and foremost, assets held in a trust are typically not subject to probate. This can allow for a smoother and more efficient transfer of wealth to beneficiaries. Moreover, unlike probate proceedings, which are a matter of public record, the terms of a trust remain private. This can preserve the confidentiality of the grantor’s financial affairs.
Certain types of trusts, such as irrevocable trusts, can also protect an individual from creditors and legal challenges. This can ensure that assets are preserved for the intended beneficiaries. The best part is that trusts can be tailored to meet the unique needs and objectives of the grantor, allowing for greater control over how assets are managed and distributed.
Types of trusts used to avoid or limit probate
A revocable living trust is a versatile estate planning tool that allows the grantor to retain control over their assets during their lifetime while avoiding probate upon death. Assets placed in a revocable living trust are transferred to the designated beneficiaries outside of the probate process, helping ensure a seamless transfer of wealth.
Unlike revocable living trusts, irrevocable trusts cannot be modified or revoked once established. However, they offer certain advantages, such as asset protection and tax benefits. The grantor effectively removes assets from their taxable estate by transferring them to an irrevocable trust. This can potentially reduce estate taxes and protect assets from creditors.
Trusts can be a powerful tool for avoiding or limiting the probate process and helping ensure the efficient transfer of assets to one’s loved ones upon their death. By carefully selecting and establishing the right trust for one’s needs, individuals can provide for their beneficiaries and help protect their assets simultaneously.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=516902024-02-11T15:43:15Z2024-02-11T15:43:15ZDisinheritance is not always an option
There are some scenarios in which the person who wants to disinherit someone might be unable to do so. Someone who does not believe in divorce might want to punish an abusive, negligent or unfaithful spouse by denying them assets from their estate.
Unfortunately, the probate courts are unlikely to uphold terms fully disinheriting a spouse. The spousal right of inheritance is so strong that a disinherited spouse could challenge an estate plan and convince the courts to award them a specific portion of the estate contrary to someone's written instructions. However, most other family members, including children and grandchildren, could lose their inheritance based on the wishes of the testator.
Disinheritance should be explicit
Someone seeking to eliminate or substantially reduce the inheritance one person receives must proceed with caution. While someone's first impulse might simply be to strike someone's name from their testamentary documents, that may not achieve their goal.
The disinherited family member might later try to claim that their omission from the documents was an oversight. They could potentially contest someone's will in probate court by alleging that the testator left them out by accident.
Therefore, people typically need to specifically mention the decision to disinherit someone in their will. In fact, they may want to go a step further and leave single dollar or a small piece of personal property with negligible financial value to the disinherited party. Doing so makes it much harder for a disinherited family member to take legal action against someone's estate. Additionally, openly communicating about those changes with family members can decrease the likelihood that others might support someone challenging their disinheritance after the testator dies.
Knowing the general rules that apply when disinheriting someone can make it easier for an adult to craft a functional and effective estate plan accordingly.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=516872024-01-12T13:41:03Z2024-01-12T13:41:03ZRemoving spouses from their documents
An individual's spouse often plays a key role in their estate plan. Their spouse could be a trustee empowered to control valuable assets or the agent named in their power of attorney documents. Spouses are often beneficiaries in wills and trusts. They could also be the person named as the main beneficiary for a life insurance policy. Both estate planning paperwork and documents filed with financial institutions often require review and revision when someone divorces.
Protecting against future risks
A spouse is a crucial buffer against the uncertainty of the future. Spouses can access someone's financial resources or make choices about medical care on their behalf. While some people authorize their spouses to act on their behalf with special paperwork, the law extends them certain rights that no other people enjoy. Someone without a spouse is more vulnerable than someone with one in the event of incapacitation or a similar emergency.
People who previously did not create powers of attorney and advance directives because they trusted a spouse to manage their needs in an emergency may now need to expand their estate plan to include those documents. If they have minor children and plan to leave an inheritance for those children, they may also want to consider creating a trust, as their spouse could gain control over those assets if they die while the children are still young.
A divorce can be a powerful reason to create an estate plan if someone does not already have one. Otherwise, this life transition generally requires that someone adjust their documents for enhanced protection if they had a basic plan in place during their marriage. Ultimately, reviewing estate planning needs after a divorce can make someone feel more confident about their future security.]]>On Behalf of Weinstein & Randisihttps://www.randisilaw.com/?p=516812023-12-07T10:57:59Z2023-12-12T10:57:12ZQuestions to ask before you name an executor
You can make an informed decision when you designate an executor by considering the following questions:
Are they willing and able to take on the role? You should always make certain that your chosen party feels comfortable with the responsibilities you’re asking them to accept. Opening and settling an estate can also be a time-consuming, complicated process. You don’t want to pick anybody whose life is already so busy that they simply have no extra time or energy to spare.
Do they have any issues that would prevent them from being bonded? A bond is a type of insurance that makes sure that the estate and other interested parties are compensated for any losses caused by the executor’s failure to uphold their fiduciary duties. If your chosen party has a history of financial crimes or is heavily in debt, they may not be able to secure a bond.
Are they young and healthy? Even if you fully intend to name your spouse as the executor of your estate, you need a backup plan in case you both die in a common accident or your spouse precedes you. At least one person you name should be young and healthy so that you have a reasonable expectation that they’ll outlive you.
Are they able to work with your beneficiaries? You know your family best. Don’t put an adult child in charge of your estate if you know they can’t get along with their siblings. Don’t put your sister in charge of your estate if she tends to be abrupt and antagonistic when questioned. You want someone who is personable, communicative and able to keep drama to a minimum.
With all that in mind, think long and hard about who you choose to be your executor or your alternative executor. Seeking experienced legal guidance can make it easier to understand what an executor does and who in your life is best suited for the role.]]>