Capital District - NY Estate & Elder Law

You Do Need Documents and a Plan

 

While many people are concerned an estate plan has to be complicated, you often only need a few simple documents prepared by an estate planning attorney, according to the Brooklyn Daily Eagle in "Five legal documents you need by 55."

Among these documents are:

• A general durable power of attorney is a document that will let you designate someone to take care of your financial matters, if you are unable to do so. The person you choose will be able to make sure your bills are paid and any business you have is handled appropriately.
• A health care power of attorney is also needed, so someone you designate can talk to doctors on your behalf, if you are incapacitated. This makes sure your health care is handled as you would want.
• A living will is another necessary document that lets you decide what will happen, if you are terminally ill. It leaves instructions for doctors about what methods to deploy or not to deploy to prolong your life.
• A will is also necessary, so you can make sure your assets are distributed as you want after you pass away.

Reference: Brooklyn Daily Eagle (Feb. 6, 2018) "Five legal documents you need by 55."

 

Wisconsin Allows Recordings to Protect the Elderly

 

The state of Wisconsin has initiated a program to help law enforcement and family members prove that elder abuse or neglect is occurring, according to WBAY in "Wisconsin allowing hidden cameras to capture elder abuse and neglect."

A few caregivers neglect and even physically abuse the people they are supposed to care for and protect. When family members suspect this is happening, they often go to law enforcement. However, proving the abuse can be difficult without witnesses.

The state will distribute small digital cameras to local law enforcement agencies. If family members report that they suspect elder abuse, law enforcement will give them a camera they can hide in the elder person's home.

The cameras can be kept up to 30 days and will record everything that happens on a memory card. When the camera and the memory card are turned back in, the recordings can be watched to see if there has been any abuse.

Reference: WBAY (Feb. 6, 2018) "Wisconsin allowing hidden cameras to capture elder abuse and neglect."

 

What Should You Do If There Is No Will?

 

 

 

If a relative dies without a will and you are chosen to distribute assets to family members, you will most likely find it is not a simple process, according to the Napa Valley Register in "Mom died with no will. Now what?"

You cannot just start handing property out to other people. This is especially true if the property in question is something like real estate or a car. You need the necessary legal authority to transfer those assets.

For that authority you will need to go to probate court and ask a judge to appoint you as the personal representative of the estate. Once you secure that designation, you have the legal authority to determine what assets comprise the decedent’s estate and then distribute them.

 However, you cannot distribute assets anyway you wish. Your state's laws of intestate succession will determine to whom the assets should be distributed.

An estate planning attorney can assist you if you find yourself in that difficult position.

Reference: Napa Valley Register (Feb. 1, 2018) "Mom died with no will. Now what?"

 

Gifting Plans May Need a Fresh Look

 

New tax laws raise a lot of questions, including the use of gifting.

Gifting is usually done as a way of shrinking an estate as much as possible to lower the eventual estate tax burden.  However, that may no longer be necessary for some people, according to My San Antonio in "How gifting of ranch land to family can increase taxes owed."

Some people will have no need to continue gifting programs designed to shrink an estate below the former exemption limit, so it will not make sense to continue those programs. However, that comes with a caveat.

The estate tax exemption limits are scheduled to revert to their previous levels in 2026. Many experts do not think that Congress will extend the exemption beyond then. That could mean that if someone lives past 2025, then a lot of gifting years have been wasted and more estate tax could ultimately be due.

Whether continuing a gifting program is a good idea, depends on an individual's personal circumstances.

An estate planning attorney can advise you on revisiting or creating an estate plan that fits your unique circumstances.

Reference: My San Antonio (Jan. 29, 2018) "How gifting of ranch land to family can increase taxes owed."

 

You May Want to Give Horses Special Consideration

 

The law considers your horses and other pets in the same category as assets, such as your house or automobile.  However, there are options to guarantee their care, according to Newsmax in "Equestrian Legacy Planning Through Trusts."

You can now set up a trust for the benefit of your horses. You can put assets into the trust and leave directions for how those assets are to be used to take care of your horses.

A trustee can then be appointed to make sure your wishes are carried out, when you are no longer around to care for your horses. This will ensure that there is a legally enforceable way for you to make sure that the horses are cared for as you want.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and may include horses or other pets.

Reference: Newsmax (Jan. 17, 2018) "Equestrian Legacy Planning Through Trusts."

 

Avoiding Probate Isn’t Always Best Approach

 

 Putting  your child’s name on the deed of a home may avoid probate.  However, it is almost always a very bad idea because of the risks involved, according to My Prime Time News in "Deeds and Probate Avoidance."

The problem is that by putting a child's name on the deed, the home becomes an asset for the child. Any creditors the child has can put a lien on the loan.

It also has the potential for adverse capital gains tax consequences for the child, should the home be sold after you pass away. This is an example of the method of probate avoidance not being worth the potential costs.

An estate planning attorney can advice you on creating an estate plan that can avoid probate but also avoid the risks.

Reference: My Prime Time News (Jan. 29, 2018) "Deeds and Probate Avoidance."

 

An Estate Plan Does Not Have to Be Complicated

 

You may only need a few documents to get your estate plan underway but people often delay because of the concern of complications, according to Forbes in "More Than Half of Americans Don't Have These Essential Estate Documents, Do You?"

The first two documents you need deal with your end-of-life health care. A living will lets doctors know whether to extend your life when you are terminally ill and unable to tell them for yourself. A health care power of attorney lets you appoint someone to make your health care decisions, when you are unable to do so.

Next, you will need a general durable power of attorney that will let you appoint someone to handle your finances when you cannot do so.

Once you have those basic documents, it is time to get a will and/or a trust. A will lets you determine who gets your property. A trust can do the same thing, but through a different legal process.

An estate planning attorney can advise you on creating an estate plan that meets your unique circumstances, including a will or trust.

Reference: Forbes (Jan. 26, 2018) "More Than Half of Americans Don't Have These Essential Estate Documents, Do You?"

 

Children May Need More than Inheritance

 

Mistakes can be made by children who inherit money but lack the information on how to deal with it maturely and wisely, according to Nasdaq in "5 Things Your Kids Should Know Before They Inherit Your Money."

Much of what your children will need to know depends on how they are receiving your wealth. If you are leaving them the money in your IRA by designating them as beneficiaries, they will need to know the best way to handle that IRA, when they have to make withdrawals and what they are not allowed to do without facing severe tax consequences.

If the money is being left to them through a will or a trust, they will need to be informed about what to do with that.

The best thing to do is to sit down with your children and talk to them about what they might receive and how they should handle it. It is also a good idea to let them know who to trust for financial advice, should they have questions after receiving their inheritances.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and your children’s unique circumstances.

Reference: Nasdaq (Jan. 29, 2018) "5 Things Your Kids Should Know Before They Inherit Your Money."

 

The Number One Reason for Estate Fights?

 

Stepmothers are present in many of the battles launched over estate battles, according to Forbes in "Stepmothers: The Cause Of So Many Estate Fights."

The real problem is not really stepmothers. When family members do not get along for other reasons, they often find themselves at odds over the estate of a deceased loved one. It just so happens that one of the primary familial relationships gone awry is that of stepmothers and their stepchildren.

What this means is that people who have entered a new marriage with children from a previous relationship, need to understand the family dynamic and how it could have an impact on the administration of their estates.

An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances, including a blended family.

Reference: Forbes (Jan. 23, 2018) "Stepmothers: The Cause Of So Many Estate Fights."

 

Expensive Coffin Swapped for Cheaper Model

 

 

A family in Australia is suing a funeral home for swapping coffins from an expensive model to a less expensive one prior to transfer to a crematorium, according to Fox News in "Funeral Home swapped $1,700 coffin with $70 one family claims."

The family charges it paid for a deceased relative to receive a coffin worth $1,700 displayed at the funeral service. The coffin and the remains inside were then to be transferred to a crematorium. However, the funeral home delayed transporting the coffin by an hour.

When it finally arrived someone went down to check and noticed that the expensive coffin had been replaced by a cheap wooden box worth $70. Peering inside the box led to the discovery that the deceased's body had been placed in it along with letters written by her grandchild.

The funeral director did not deny the swap.  However, he claimed that it was a common practice done to protect the more expensive coffin from the cold, since delays at the crematorium meant the remains would need to be frozen for some time.

This is just the latest scandal in a string of scandals in the funeral home industry in the U.S. and throughout the world. The industry has been found to be cutting corners at the expense of the decedents and their families.

It is important that people shop around and make sure they are using a reputable funeral home. It is also important to pay attention to what the funeral home says and what it does.

An elder law attorney can advise you if you are hesitant to sign a contract with a funeral home.

Reference: Fox News (Jan. 12, 2018) "Funeral Home swapped $1,700 coffin with $70 one family claims."