April 25, 2014

Guide to Contesting a Will

Contesting a will can be extremely difficult and time-consuming. The person who is contesting the will must have a valid reason to contest. The will cannot be contested because the interested party believes the will to be unfair. There are laws that guide proving whether a will is invalid.

There are four basic legal reasons for contesting a will. The applicable laws can vary slightly from state to state, but the basic principles hold true for each.


The person who signed the will was tricked into signing. This can often happen when the elderly or sick don’t understand the documents put in front of them. The person receiving the bulk of the estate is often thought to be the party involved with the fraud.

The interested party who contests the will has to prove there was fraud. The burden of proof lies with the interested party. In a case involving fraud, it must be proven that the signer didn’t know what was being signed. It will involve calling witnesses who can testify to fraud.

Undue Influence

At the end of a person’s life, they may be influenced to change their will through coercion or force. A caretaker may threaten or cajole the person to sign a new will where they are given the bulk of the inheritance.

The interested party would have to prove a claim of undue influence based on previous wills and witness testimony. Unfortunately, the person is deceased and can’t answer questions about the influence to sign a new will.

Mental Incompetence

A will can be contested if the person had a mental deficiency at the end of their life when they drafted a new will. The mentally incompetent person might not have understood what he or she was doing when creating a new will.

The interested party would need medical records to prove mental incompetence. Witnesses can be called to speak to the person’s mental capacity and behavior.


In almost every state, the witnesses and signer have to be in the same room at the same time. The witnesses have to see the will being signed and understand what they are witnessing.

An unfair will isn’t necessarily a will that can be contested unless there is legal reason to claim the will is invalid. These four listed criteria are the only reasons for which the will can be contested. An interested party must make a claim against the will as soon as possible to start an investigation.


5 Things You Should Know Before Filing For Divorce

When you got married, you made a vow with your partner to stay together forever. Unfortunately, things don’t always work out as planned, and you may find yourself considering a divorce. Before you head down to the courthouse, there are five things that you should be aware of.

1. Only you can make the decision to file for a divorce

It’s always advisable to try and save your marriage before filing for a divorce. Besides talking with your spouse, you may want to talk to friends, family members and qualified professionals. Take all feedback, and consider what they say, but always remember that you’ll be the one making the decision.

2. The importance of hiring a lawyer

A lawyer will ensure that you receive what you’re entitled to. To begin the divorce, they’ll make sure that your divorce papers are filed correctly. They’ll also make sure that your divorce proceedings are handled in a professional and legal manner by helping you make good decisions.

3. It is always best to talk to your spouse

It’s a known fact that communication goes a long way. If you can have a rational discussion with your spouse about all of the issues that go along with a divorce, you should consider yourself to be very lucky. When a couple can agree on the majority of relevant issues, it will make their divorce as easy and painless as possible. The judge will be appreciative of this as well.

4. There is never any real winner

Nobody ever really wins in a divorce case. If the judge has to make decisions because the couple cannot agree on anything, it won’t be one person getting everything and the other person getting nothing. Instead, the judge will try to be fair to both parties. This means that each person will usually only receive about 50% of what they want. This will make both parties feel like they have lost.

5. The courts will always consider a child’s best interest

If you do not have any children, this will not apply to you, but many married people have at least one child. A judge will always consider a child’s best interest when making child related orders. Unless past abuse is involved from one parent, they will always order that the child spend time with both parents. Of course, one parent will need to have physical custody of the child, and the judge will weigh in many factors to decide who the child ultimately lives with.

Government Programs That Can Help You Plan For Special Needs Care

Caring for a person with special needs is never an easy task. It takes a great deal of time, effort, love and at times, assistance, to properly meet the needs of one with a disability. Fortunately, there are government programs available to help assist the caregiver or family of a special needs individual.


The Individuals with Disabilities Education Act (IDEA) is the largest educational assistance program for special needs children. It is sponsored by the US Department of Education and is implemented in all states. Schools receive additional funding from the Department of Education to defray the costs of this program.

If a child is a special needs child, the school must develop an Individualized Education Program (IEP) for the child. The program must be truly unique for the particular special needs of the child and must consider the input of the parents, medical providers, social workers and therapists. Depending on the child, program may consist of tutoring, individual therapy, mainstreaming of children with social disorders, etc. Schools receiving federal funding must comply with the provisions of IDEA. Parents have the right to appeal a decision with which they do not agree.

Social Security Child Benefits

Some special needs children are entitled to benefits in a few circumstances. First, if the child is the child of a deceased or disabled parent and is a disabled child, benefits are payable. In addition, if the child is disabled and the parents have little resources, the child may be entitled to Supplementary Security Income Benefits.

In both cases, the child must have a disability that demonstrates “marked and severe functional limitations”. The limitations must limit the child’s activities to an extent that would prevent an adult from working. Parents of a disabled child can apply for Social Security and SSI benefits in a local Social Security Office, by phone or online at SSA.gov. Like other disability programs, child’s benefits may be appealed if the decision is unfavorable.

OSERS Grants

The Department of Education provides discretionary grants to states for special education and rehabilitation services. Vocational Rehabilitation Grants are offered to help people with special needs prepare for gainful employment, based on their skills and limitations. These grants are intended to meet the needs of the most severely disabled first.
The grants are administered through an applicable state agency.

EFMP for Military Families

The Department of Defense offers special programs for military families with a special needs child. The Exceptional Family Member Program (EFMP), offers medical treatment, counseling, early intervention, and individualized family service plans. It also provides family outreach centers for further assistance to family caregivers. To enroll in the program, members of military families are encouraged to complete a Family Member Medical Summary (DD Form 2792) and a Special Education/Early Intervention Summary (DD Form 2792-1). Both may be obtained from the Department of Defense at Militaryonesource.gov.


5 Simple Ways to Avoid Probate

Probate fees can be excessive depending on the state in which you live. States may require that individuals pay 5-15% of their total estate for probate fees. Because of the high costs that can be attached to fees, it is to your advantage to avoid probate.

1. Create a revocable trust.

A revocable trust is an instrument that you can use to directly bypass the probate procedure. In some states, you may even be able to serve as the grantor and trustee of the trust. This means that you would be able to determine how to distribute your assets and also administer the trust throughout your lifetime. With a revocable trust, you can also elect to make discretionary distributions of income to beneficiaries throughout your lifetime. An estate planning lawyer can help you in the process of distributing assets so that you minimize tax implications for your estate.

2. Create gifts of your assets throughout your life.

Creating a gift of your assets is also another easy way to forego the probate process. If you decide to make a gift to charity, then this could be one way that you minimize taxes for your estate. A charitable gift deduction enables you to write-off the gifts that you make to charities. You may also choose to make a gift to a beneficiary through a retirement plan or IRA. This will also enable you to transfer gifts to beneficiaries without the hassle of probate.

3. Title your assets in a wise manner to avoid probate.

You may want to be conscious of certain protections that may exist in your state. For example, Florida has a homestead exemption that enables a spouse to claim a life estate in a home that was used as a primary residence of the spouses throughout their lives. Otherwise, spouses may hold property under a tenancy by the entirety arrangement. This type of arrangement also ensures that a spouse has a full right of survivorship in a piece of property upon the other spouse’s death.

4. Ensure that you have designated beneficiaries for life insurance policies.

Some individuals make the mistake of failing or forgetting to name beneficiaries on a life insurance policy. If you forget to name a beneficiary on a life insurance policy, then creditors may be able to attach the proceeds of the plan. Ensuring that there is a named beneficiary on your plan will help keep proceeds within the estate.

5. Prepare the division of your assets ahead of time.

Taking some time to seriously consider the distribution of your assets ahead of time pays off in the long run. By preparing a trust or pour-over will document, you can avoid probate and maximize the value of your estate.


Estate Planning Tips for Multi-State Ownership

If you have purchased property within a state other than your residence at some point, you may wonder what the implications of that purchase are on your estate. Perhaps you have purchased property in California and now have moved to Florida. California is a community property state, while Florida does not follow community property laws. If you are dealing with differing property laws in jurisdictions, then it is in your best interest to fully understand the laws concerning your situation. An estate planning lawyer can help you create an estate plan that will distribute your assets with the least risk possible.

1. Work with an estate planning lawyer as soon as possible.

An estate planning lawyer can help you draft a will or trust that will be in accordance with your intentions. An estate planning lawyer can ensure that a will or trust overrides any state intestacy laws that could have a harmful impact on the disposition of your estate at death. An estate planning lawyer will also be able to tell you whether the laws of a community-property state or other state will be the guiding force in making decisions for distributing assets within your estate.

2. Consider the tax implications of multi-state property ownership on your estate.

If you own property in more than one state, then you should also be aware of the ways in which state laws may impact the properties you own. State laws may have a very negative impact on your estate if you own property in more than one state. An estate planning lawyer can assist you in figuring out ways to decrease the tax burden for your estate. Avoiding multi-state death taxes can be much easier when you enlist the help of a legal professional for your estate planning needs.

3. Consider whether divorce may impact the distribution of your assets.

If you are going through a divorce or anticipate a divorce in your future, you may also want to speak with a lawyer for assistance. An estate planning lawyer can help you figure out ways to handle your assets so that a spouse does not retain ownership over certain property that you may have purchased with your own funds outside of the marriage. If you have purchased property in a state that recognizes community-property laws, then your spouse may be entitled to own at least half of that property upon the dissolution of a marriage. In addition, you should be aware that not all community property states have the same laws. Even community property laws can differ amongst jurisdictions, so it is important to speak with a lawyer who understands the differences amongst laws for community-property states.


5 Questions to Ask When Selecting a Nursing Home

The decision to place a loved one into a nursing home can be a difficult one. However, doing good research and asking the right questions before choosing a nursing home for your loved one makes it easy to know that your family member is being taken care of.

What are some questions that you should ask prior to selecting a nursing home?

1) How Often Are Residents Taken Out of the Home?

It is important to know if the home has any organized activities or field trips that residents get to go on. Scheduling trips and other events for seniors gives them something to look forward to and improves their quality of life.

2) Will I Be Contacted About Any Medical Issues?

A good nursing home will always notify an emergency contact if a resident has a stroke, breaks a bone or develops an illness. Make sure that you will be notified if anything happens. If not, it could suggest that a particular home does not look out for the best interests of its patients or their families.

3) What Are the Qualifications of the Staff?

Staff members should be registered nurses at the very least. A trained doctor should also be on staff or nearby at all times. Having a qualified staff on hand makes it easier to deal with medical issues and improves communication between staff and family members of the residents.

4) How Often Are The Residents Checked?

If a resident needs medication or has a medical emergency, how fast will someone be there to provide it? Even if a resident doesn’t need anything, does a staff member do a routine check to ensure that everything is okay or to stop for a quick chat?

5) Is There an Active Community at the Home?

Is there a vibrant community at the nursing home that you are looking at? Although a vibrant community may simply mean the residents watch TV in a common room or get together to play chess, your loved one deserves to be in an environment where he or she can make friends and live a dignified life.

Putting someone in a nursing home doesn’t mean that they are being left to die. Instead, a nursing home should be a place where family members can be well cared for and interact with others their own age. This improves their quality of life while reducing a burden on yourself to provide care that you may not be able to give anymore.

The Probate Process from Start to Finish

Even when one’s will seems to be thoroughly outlined and legally sound, these situations can often become muddled and confusing within a short period of time. This could result in the probate process, which will change by state and sometimes even by county. Here is a closer look at exactly what probate is, how it is carried out, and what everyone should know about this often misunderstood situation.

The Basics of Probate

Probate is a legal process that is designed to carry out the final wishes of a deceased party. In some situations, this requires nothing more than an executor and legally-backed will but that is not always the case. Probate is a series of steps in which an executor proves that the will is valid to the court and then carries out all legal matters regarding the deceased party’s assets. In many situations, this will require everything from the repeated filing of paperwork to multiple courtroom appearances.


Quite a few states have currently adopted the UPC, or Uniform Probate Code. This code is designed to make the process as uniform as possible between every single state. While both UPC states and non-UPC states do have a relatively similar process, minor variations may require the services of a local attorney that understands these nuances.

The Steps of Probate

The probate process begins with the executor filing the proper paperwork to prove that the will is in fact legal and valid, generally nothing more than a matter of routine. Once approved, the executor will then begin to categorize all assets left behind. This may include everything from liquid assets and bank account funds to life insurance policies and physical property. Depending on the size of the estate and the county in which the probate is being filed, a bond may need to be posted by the executor to protect the estate from any lost funds.

After all assets have been appraised and categorized, outstanding debts and taxes will be the first thing that is paid. Any remaining assets will then be distributed to the heirs, after which the executor will file receipts and petition to be released from his or her duties.

All parties should understand that this process often requires the filing of dozens of forms ranging from executor petitions to a legally-binding ad in the newspaper announcing the probate. The easiest way to prevent any legal or financial issues throughout this process is to utilize the services of an attorney that understands all county and state laws regarding wills, estate planning, and probate.


4 Ways Hiring A Real Estate Lawyer Will Save You Big Money

Whether you are seeking to buy a new home for investment purposes or wish to sell your home, hiring a real estate lawyer can help you save money. When you are dealing with real estate, there are many unforeseen issues that can arise and end up being extra costly to you. It is in your best interest to receive legal help to prepare for dealing with unforeseen issues. Here are some reasons why hiring a real estate lawyer will help you keep more money in your pocket in the long run.

1. A lawyer can research the quality of title for your potential investment property.

When you are purchasing a home for investment purposes, it is essential to know the quality of title behind your home. If there is an encumbrance on the title of your home, then you will not hold marketable title to the property. An encumbrance refers to a defect on the chain of title. An encumbrance may be a lien, zoning violation or unpaid taxes on the home. A lawyer can perform a thorough title search to ensure that none of these defects are on the title for the home that you wish to purchase.

2. A lawyer can negotiate lower home prices for defects in the home.

Real estate lawyers are experienced in negotiating with sellers. They know how to leverage your bargaining power in the negotiation process. A lawyer who is experienced in real estate transactions may be able to effectively negotiate a lower price for a home that contains defects, such as insect issues, old carpeting or bad piping.

3. A lawyer may detect hidden defects in the home that take away from its value.

Some defects are not obvious to the typical purchaser, such as zoning violations. A real estate lawyer is keen and will keep an eye out for any hidden defects on the property. He or she may even be able to perform a walk-through of the home to look for any hidden defects. Spotting these defects ahead of time will protect you from purchasing a home that could end up costing you more money than you wish to spend.

4. A lawyer can perform multiple professional services for your real estate transaction.

Your real estate lawyer may be able to do showings as well as draft all of the contracts required for your transaction. You can minimize costs for your real estate transaction by hiring a single lawyer to perform all of the required services.

When you hire a real estate lawyer, you can ensure that you will always have a professional to turn to for all of your real estate issues, questions and concerns. He or she may also have more knowledge than the typical real estate agent and can help leverage this knowledge to your advantage.


Understanding Healthcare Proxies

Advances in medicine continue to assist individuals in living longer and more productive lives. Unfortunately, there may come a time that despite medical advances, you may no longer be able to make your own medical decisions. While this may never be an issue for you, you can provide both yourself and your family with peace of mind by having a healthcare proxy in place before the unthinkable happens.

A healthcare proxy is defined as a legal document that is an advanced medical directive which names a specific individual, or proxy, to make healthcare decisions in the event you are unable to make those decisions for yourself. It carries the same weight with regard to requesting or refusing treatment as if you communicated the decision yourself (www.medterms.com). In some states, the healthcare proxy is referred to as a “durable medical power of attorney” or a “healthcare surrogate” (www.americanbar.org). No matter what it is called, the document performs the same function.

Standard practice is to name a single individual as your proxy with others added as alternates in the event the named proxy is unavailable. This is helpful if your spouse is your proxy and you are both incapacitated. The alternate can step in and make decisions. It is important that you discuss your wishes with your proxy before an adverse event occurs so they understand your wishes. It is also important to choose someone who can be rationale during a stressful situation.

Every state permits individuals to have a healthcare proxy. While some states have standardized forms, others allow you to draft your own. If you use a boilerplate format, be sure the wording conforms to your wishes before you sign it. If in doubt, contact your attorney. They can draft a healthcare proxy to meet your specific needs. In the event you change your mind about anything in the proxy, you can either ask the attorney to make changes or destroy the document for you.

Once you have a healthcare proxy, be sure your physician has a copy. In the event you are hospitalized in an emergency situation, your physician will have access to your wishes. Furthermore, a copy should be kept with your other important papers, such as a living will and essential financial information. In the event you are admitted to the hospital for surgery, take a copy with you. The healthcare proxy becomes part of your medical record. In the event of a crisis, the hospital already has the information available.

No one plans to develop Alzheimer’s or have a massive stroke, but it does happen. Preparing a healthcare proxy now can make life easier for your family during a stressful time and ensure your wishes will be followed.


3 Reasons to Set Up a Minor Trust

A minor trust is a type of trust fund that parents or grandparents set up for their minor children or grandchildren. it is generally used for a variety of reasons when a child earns income of any kind. There are certain benefits that come as a result of setting up a minor trust that should be taken seriously. These aspects can help you to better decide whether to create this type of trust for your child.

Protection Against the Kiddie Tax

There are taxes on any income that is earned, even that which is earned by minor children. There is what is known as “kiddie tax,” which can affect a child well into his or her twenties. The tax can have a major adverse effect on a regular savings technique that parents create for their kids that is typically meant for a college fund. When a minor trust is created, the child’s money is protected because this tax never becomes a factor.

Avoidance of Gift Tax

In addition to the “kiddie tax,” gift taxes can be avoided when a minor trust has been created for a child. What this means is that parents or grandparents can give up to a certain amount of money each year without being responsible for paying a gift tax. Making financial gifts to children, especially earlier in life, can really benefit everyone due to the fact that the money will grow over the course of time.

Builds Up Funds Over Time

Finally, another good reason to create a minor trust is to set aside money for your child that he or she cannot touch until the age of 18, 21 or 25 if you so deem it appropriate. Generally, a minor trust is made for the purpose of saving money for the child so that he or she can attend college. The funds are untouchable until you decide otherwise. You will be able to decide when your child or grandchild is mature enough to handle the responsibility of the money and use it the way it was intended to be used. This also means that the money will have sufficient time to build up over time so that your child will have access to more rather than less.

If you are a parent or grandparent of a young child, consider setting up a minor trust. It will definitely benefit the youngster in the long run.


Protect Your Legacy With Three Essential Estate Planning Tools

An estate consists of the personal or real property, possessions, and financial holdings that a person has accumulated during his or her lifetime. Estates do not apply only to the wealthy. One’s estate simply consists of the personal property owned by that individual, regardless of the amount of property. An estate can consist of a modest home and vehicle, bank accounts, business assets, land or any type of property that has monetary value. Most people want to ensure that property remaining after death passes to the heirs of their choosing, and that as little as possible becomes absorbed by estate taxes, fees, and mismanagement. The following are three essential tools for making that happen.

The Last Will and Testament

When a Last Will and Testament (will) is prepared, it contains instructions pertaining to the disbursement of assets by the executor. The will should name who will administer the estate (executor) and should include an alternate. Wills properly prepared by an estate planner will be legal in the state in which they were written and legally binding in a court of law. For families with young children, young people establishing careers, and people with moderate incomes, a will provides sufficient protection. For people with larger holdings and multiple heirs a trust may be more appropriate.


A trust does not replace a Last Will and Testament. The difference in a will and a trust is that the guidelines set out in the trust can take immediate effect while the person is still living. The trustee of the trust has the authority to handle the assets as outlined and this authority remains until all of the assets are distributed. A successor trustee serves in the event of the death of the original trustee so that the directives under the trust are still enforced. Because trusts are private, they are not public record. The trustee has full discretionary control. A properly executed trust can save families significant fees expense and provide peace of mind, as the assets are not open to public consumption. It is important to remember to title all assets possible into the name of the trust so that the disbursements go through it as opposed to an estate when the executor dies. Any assets left outside of the trust may be subject to probate.


Insurance is one of the most simple and cost effective ways to protect assets. Life insurance names certain beneficiaries that will have direct disbursement at the time of the loved one’s death. These funds do not pass through the probate estate unless the estate is a beneficiary. Life insurance proceeds protect assets by giving the remaining family members a means to pay for burial expenses, unexpected costs, and current living expenses.

The previous estate planning tools will protect assets gained by diligence and achievement, making sure that hard-earned legacies remain protected for generations to come.


Primary Goals of Small Business Tax Planning

As any experienced small business owner already knows, the primary goal of small business tax planning is to make the most the money the business is already generating. How an accountant achieves that goal depends on the type of business, the source of its income, and a myriad of other factors.

Staying Out of Trouble

Generally speaking, effective tax planning aims to eliminate or considerably reduce the amount of federal, state, or local taxes your business owes by planning when and how to conduct day to day business activities. Unfortunately, while it is perfectly legal to plan business activities in an effort to avoid certain taxes, it isn’t legal to carry out business in a way that evades taxes.

The number one goal in small business tax planning, therefore, becomes staying out of trouble. That’s where tax professionals such as accountants and attorneys come in. Doing your own tax planning without the benefit of an experienced professional is like skating on thin ice; a wrong move could prove dangerous.

Avoiding Common Mistakes

While many small business owners completely disregard taxes until the time comes to file a return, even those who participate in tax planning are prone to making mistakes that cost them in the long run.

One of the biggest mistakes small business owners make is missing out on available tax credits, loopholes, and deductions that could lower their tax burden and keep more money in their pocket. Another common mistake is waiting until the last minute to consult with a tax professional. Good small business tax advice can help steer an entrepreneur in the right direction before taxes come due, giving them more time to take steps that will lower their tax burden in the first place.

Putting Business Income to Better Use

Money that otherwise might have been paid in taxes could be put to better use in the form of valuable business-related deductions. For example, a small trucking company could significantly lower its taxable income by investing in a new truck or a better communications system and writing it off at the end of the quarter. In turn, that new piece of equipment could be used to generate more income, which could then be applied to more equipment. Using tax planning in this way could substantially contribute to your company’s growth.


Preventative Measures to Defend Against Will Contests

The purpose of a will is to be sure that your affairs are handled after your death and that your loved ones are taken care of properly. A will also protects your estate from various forms of litigation, including suits filed by family members who do not agree with the will’s contents. For this reason, it is important to take steps to protect your last will and testament from potential contests after you have died.

Plan Your Estate When You are Young

The best advice regarding estate planning is to begin taking steps when you are young and of sound mind. Even if you don’t have a lot of assets, are single or don’t feel as if there is much to protect, a will makes things much easier for your heirs. In addition, creating your will when you are of sound mind makes it more difficult for someone to claim you were not able to make an informed decision regarding the disposition of your assets.

No Contest Clause

In some states, it is possible to include an in terrorem clause, also known as a “no contest” clause. The in terrorem clause states that if anyone named in your will or irrevocable trust files a lawsuit to challenge the provisions of the document, they receive nothing from the estate. Some states prohibit such a clause, while other states name exceptions to the rule that could make the clause unenforceable. An estate attorney can advise whether this clause is applicable in your state.

Consider Trusts

A revocable living trust is another means of avoiding will contests after your death. Trusts are personal documents that remain private, while a will is a matter of public record. In addition, a revocable trust covers all phases of your life, regardless of health, and can continue even after you pass away. A will only takes effect at the time of your death. If there are family members that you feel may squander their inheritance or create trouble after your death, consider creating a lifetime trust to encourage more responsibility and reduce the chance of litigation.

Discuss your estate plan with family members as well so that there are no surprises after your death. Every few years, review the terms of your will to be sure it still suits your current goals. A pattern of repeatedly reviewing your estate plan will make it much more difficult for a will contest to be successful, as your record will demonstrate that the will is indeed representative of your final wishes.


How Spousal Rights Affect Legal Property Ownership

Various laws concerning a person’s property rights during marriage are normally based on the state that the marriage took place in. Marriage and property ownership laws in different states are divided into two different categories. There are states with community property laws and states that do not have community property laws. These different laws govern how spouses can dispose of their property or use their property during marriage. They also govern how property will be divided in the event that the spouses have a divorce or in the event that one of the spouses dies. Most states give spouses the chance to change a state’s law a little regarding marital properties through the use of spousal agreements.

Community Property States and Common Law States

The property that two people own during a marriage is divided into two different categories. Property can be either non-marital property or community property. Community property is property that a married couple own together. Non-marital property is a type of property that a spouse owns alone or owned before he or she got married. However, this type of property can become marital property if it becomes mixed in with property that the couple owns together. For example, if a spouse uses money that was obtained before the marriage to pay towards a down payment for a home with his or her spouse and both people make payments with money that is earned after the marriage, the complete equity in the home becomes marital property.

Common law states pay more attention to the name that is on the title of the property when it comes to a spouse’s property ownership rights. For example, if each spouse has a car in his or her name, it will belong to only him or her. However, if the house is in both names, they each own half of the value of the house.

Postnuptial and Prenuptial Agreements

All states regardless of their laws concerning marriage and property will let married couples create reserved agreements about property and the division of property. However, there will be various specifications regarding what is allowed in these agreements. The specifications are different with each state. An agreement can never put a limit to how much child support will be paid if a divorce does happen. Depending on the state, this might also apply to spousal support as well. Most of the time prenuptial agreements and postnuptial agreements are geared towards the spouse’s property ownership rights. Your state’s courts are probably going to pay more attention to enforcing prenuptial agreements than postnuptial agreements. However, both types of agreements will only be enforced if each spouse has equal negotiating power. There must also be full financial disclosure between both parties.


Common Roadblocks In Setting Up Legal Guardianship of a Minor

A guardianship is established when the court determines that a child’s biological parents are no longer able to care for a child appropriately. A case may be brought to court by child protective services if abuse has been filed against the parent. A case may also be brought to court by the person attempting to become guardian or a relative of the minor in question. Whatever the situation, there are several common problems that can arise when trying to become a guardian. While the legal process of guardianship does not strictly require the use of an attorney, having one is highly recommended.

The Custodial Parent Objects to the Guardianship

This is perhaps the most common problem with acquiring guardianship. Most situations involve a forced removal of the child from parental custody, but the law here is somewhat ambiguous because the biological parents’ rights may still intact. This gives the parent a great deal of say over the guardianship and who can become a guardian. The parent may also make certain demands, such as reasonable visitation, that may conflict with the guardian’s schedule and make the overall process much more difficult.

Missing Notice Forms

The law is very strict on the requirement that a guardian give “legal notice” to certain individuals, relatives and agencies involved with the child. Some of these individuals may be apparent, such as the child’s current parents or custodians. Others may not be apparent or may not be directly involved in the child’s care. It is your responsibility to find these individuals and “serve” them a legal notice form. If you cannot find the person, then you must appeal to court to allow the case to go forward regardless. A mistake during this process can require you to start the guardianship process all over again.

Home Study Failure

The court will appoint an investigator to interview you, the child, the parents and other applicable individuals. They will also conduct a home study to ensure that your home environment is suitable and meets certain standards. The investigator will be looking to ensure that the child will have adequate personal space, access to nearby education, access to acceptable healthcare and a space appropriate for parental visitation. Inadequacies in any of these areas will be reported to the court and may result in a delay of the guardianship process.

Return of Absent Parent

It should be noted that biological parents always have first parental right, even if they have been absent from the child for a long time or were not currently holding custody. A guardianship case may be hindered if an absent parent returns unexpectedly to claim his or her parental rights. The court will have to assess the parent’s appropriateness and may assign the child to the returned parent instead of the guardian.

A judge makes the final decision on all guardianship cases. Keep in mind that a guardianship is not an adoption, and it can be revoked by the court at any time. Many guardianship cases on Long Island result in the child being ultimately returned to their biological parents.



5 Trust Types That Will Maximize Your Kids’ Inheritance

One of the most important parts of an effective estate plan is to ensure that a family’s children are properly provided for, whether they are minors or adults. This is often accomplished by placing some or all of the estate into a trust. The following five types of trusts have been found to be very effective in providing for the care and prosperity of a family’s children. In addition to the specific type of trust, many trusts can be written as revocable or irrecoverable trusts, depending on the specific needs of the family.

Irrevocable Trusts

An irrevocable trust is a trust where the property is placed beyond the control of the parents, subject to the terms of the trust. This has a variety of advantages, including reduced taxation and the fact that the trust’s assets are largely immune from the actions of creditors.

Revocable Trusts

A revocable trust is a trust that can be changed at the option of the grantor. These types of trusts are often used where changing family and personal circumstances may require modifying the trust over the course of the grantor’s lifetime. However, revocable trusts are somewhat more vulnerable to creditors and court actions than irrevocable trusts, and they do not share the same tax benefits.

The 5 Best Trusts For Transferring Money To Your Kids

Section 2503(b) trust is an irrevocable trust that takes the assets and holds them for the child, with the provision that the child must have the income of the trust distrusted to him or her at least once a year. The creator of the trust can determine whether the trust will terminate upon the child’s 21st birthday. This trust can effectively shield the child’s inheritance from creditors, as well as provide the parents with some control over how the child will spend the trust, even after his or her 21st birthday.
Section 2503(c) trust is similar, but automatically terminates upon the child’s 21st birthday. In addition, the trustee can use the money in the trust to pay for the child’s college education. This trust is a tool commonly used to protect the estates assets until the children are adults and capable of effectively managing the funds released into their care.

spendthrift trust is a special type of trust that can be especially useful if a parent has doubts about their child’s ability to manage his or her funds effectively. This trust allows the trustee to refuse to release funds if he or she believes that they will be taken by a creditor or otherwise misused by the beneficiary. This trust can protect the child from being rendered penniless due to a lawsuit or other civic debt.

special needs trust is a type of trust designed to allow an individual to be able to make use of the trust without rendering them ineligible for government aid. This type of trust can be useful for families who have disabled children, as it allows the child to avoid having to choose between their inheritance and the continuation of their government support. A special needs trust can also be used to shield an award from a personal injury lawsuit from government aid income restriction guidelines.

grantor retained income trust is a common tool used to reduce the potential tax liability of the parent’s estate. This trust allows the property to be placed in the trust, but mandates that the grantor will retain the property’s income for a time determined by the grantor. This helps reduce the property’s federal estate tax value, which can dramatically reduce the taxes the grantor’s children will be liable for.

These five types of trusts all provide extremely useful estate planning tools to help ensure that a family’s children, whether they are adults or minors, can enjoy the property that their parents wish to bequeath them.


5 Reasons to Draft a Will Right Now

Many mistakenly believe that drafting a will is something that only needs to be done by old, retired people who have families and are facing their end of life decisions. There are, however, many reasons to draft a will no matter what age you are. It is really never too early to make your will.

1. Serve Your Family

Unfortunately, death is a sure future for everyone. There is no way to predict exactly when you will be leaving the Earth. If you are a young person, with no children, then a will can help ensure your current possessions go exactly where you want them. It will also ensure that your funeral and burial arrangements are done according to your wishes. Having a will is a great way to help your surviving relatives. Forcing them to guess at what your wishes might be and worry about getting it wrong is simply unnecessary. Making a will serves your family just as much as, if not more than, it serves you.

2. Limit Sibling Rivalry

Inheritance is one of the key reasons to make a will. Remember that the government has already put in place laws controlling the disbursement of assets upon a person’s death. The only way to supersede these laws is with a written will. It is unlikely that the government will be allocating your estate the way you intend. There is also little to keep siblings from suing and arguing in court over matters of inheritance. By clearly stating how things will go in a will, you can eliminate many legal hassles and infighting.

3. Child Care

If you have a minor child, then you probably have a specific person in mind to care for that child if something should happen to you and your spouse. Most states will automatically turn a child over to the next of kin relative or, if none can be found, place them into the foster care system. No non-family member is legally entitled to take the child unless you specifically name that person in your will. Also, if you would prefer a specific family member to be the caretaker, then they must be named.

4. Things in Your Life Have Changed

Change is a part of life. Even if you have drafted a will in the past or didn’t think you needed one, several life changing events can have a huge impact on the handling of your estate after death. These events include marriage, having children, having grandchildren or developing a serious illness. If any of these events have occurred it is very important to make a will or to update your last will.

5. The Family Business

A will also ensures the continued operation of a family business by appointing chief operators and properly handing over the business ownership to another person. Without this, the business may simply cease to exist unless someone takes ownership of their own volition. The law may also default ownership to someone you would rather not have it.


The Basics of Guardianship, Health Care Decisions, and Power of Attorney

Legal terms can be confusing. To help those debating over the best care options for their loved ones, below three common elder law terms are defined and explained.


Guardianship is a term used to define anyone who has custody of, or the sole responsibility of caring for, an aging parent or other elderly relative or friend. Guardianship of this nature is usually requested and/or obtained by a close relative or trusted friend of an elderly person when it is deemed that the person needs someone to take care of them due to such issues as a disability, dementia, Alzheimer’s disease, or a terminal illness that renders the person too ill or weak to take care of himself. Guardianship of a disabled or terminally ill relative or aging parent may also be granted by a judge if there is a dispute regarding who has the legal “right,” as well as the best means possible, to provide the necessary care.

Health Care Decisions

While many people think of this subject in relation to the elderly, health care decisions must also be made for children and disabled or terminally ill relatives as well as aging parents. Such health care decisions often include what is known as a living will, also referred to as an advance directive. This important document simply specifies the person’s wishes regarding medical care in the event of a terminal illness or other medical condition or emergency which would leave the person in a coma or vegetative state and unable to make decisions. This also ties in closely with power of attorney, which is addressed next.

Power of Attorney

Granting a power of attorney is an important, personal decision that involves choosing someone to make all legal and medical decisions in the event that the person doing the choosing becomes unable to make decisions for or care for himself. A power of attorney is a legal power which requires the acceptance and agreement of the chosen party to care for and carry out the other person’s wishes, within reason, as well as required legal documentation which has been prepared by the person’s attorney.

Need More Advice?

To fully understand the ramifications of different care and decision-making arrangements for your loved one, it is best to seek the advice of an elder law–focused lawyer. Long Island attorney Andrew Lamkin has long experience working exclusively on elder law and related legal questions. Contact us today for a free consultation at 516-605-0625.

5 Alternatives to Guardianship

A guardianship is a position of total authority and responsibility for a disabled adult who is for some reason incapable of making decisions to support himself or manage his affairs. Such persons are referred to as wards. Often, a person may be temporarily disabled or in need of less restrictive assistance. There are several alternatives to guardianship that may be more appropriate or preferable for such individuals.

A Health Care Proxy*

A health care proxy’s support is limited to only those decisions involving health matters, such as hospital stays, operations, and long-term care. A health care proxy is usually called upon for short-term disabilities such as periods of coma or unconsciousness. The proxy may also be called in for long-term disabilities such as dementia or terminal illness. The proxy is usually a family member, but it can be any agent agreed upon by the individual.

A Personal Caregiver

A personal caregiver is usually an employed professional trained to provide for people with serious illnesses or disabilities that prevents them from caring for themselves. Personal caregivers are usually assigned to those who do not require hospitalization, but cannot live independently. A personal caregiver may visit temporarily to provide meals or services, or they may stay at the home to provide round-the-clock care. A caregiver is often assigned by a hospital or other medical agency. They generally do not have legal permission to make decisions for the individual, but they may have access to personal information and limited access to financial resources needed for that person’s care, such as buying groceries or medical supplies.

A Power of Attorney

A power of attorney is a legal ability to make financial or healthcare decisions for a particular person. The person provided with power of attorney is known as the attorney-in-fact. Power of attorney can vary from complete control of a person’s financial resources to limited control of only a single aspect. For example, an attorney-in-fact may be assigned to deal only with a person’s health care needs, much like a health care proxy, or they may be assigned only to deal with a person’s investments or estate. Power of attorney is often given to a family member, but it can be given to any individual at the disabled person’s discretion.

A Representative Payee

A representative payee is an individual assigned by the Social Security Administration to handle a disabled person’s Social Security and SSI payments. The SSA dictates a representative payee, with input from the disabled person if possible. The SSA will choose family members or close friends first. If none are available, they will use a qualified organization to act as a representative payee.


A trust is a wealth management tool that allows an asset to be held by a third party on behalf of a beneficiary. Anyone can hold an asset in trust for anyone else, regardless of age or disabled status. Trusts are often used to handle inheritance and to limit the impact of inheritance or estate taxes.

Know the Facts Before Making Your Decision

Elder law attorney Andrew Lamkin focuses on providing advice on how to best fulfill the care and decision-making needs of your dependent loved one. Contact his law office today at 516-605-0625 to receive a free consultation and ensure that you make the most suitable choice for those who depend on you.

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What to Look Out for to Make Sure Your Will Won’t Lead to Family Disputes

It is very unusual for a will to be contested. However, if potential beneficiaries and heirs believe that the maker of the will was not of sound mind at the time that the will was constructed, the contents of a will can be challenged. A majority of wills will go through probate court without being contested, but if the will does not meet legal requirements and would-be heirs point this out in probate court, there can be delays that can benefit the person who is contesting. If you want to create a will that meets requirements and will not lead to family disputes, you should be aware of the grounds on which family can contest your will. Here is a basic guide on making a fully legal will, so that your deserving heirs receive what you left them.

Mental State

If a family member wants to contest your will because he or she is not an heir or beneficiary, one of the most common grounds for contesting the contents of the will is that you did not meet the “sound mind” requirement when the will was written. Will makers (testators) must be of sound mind, know what a will does, know that they are making a will, and know how they want their belongings and assets to be distributed. If a person contests the contents of your will, they may say you lacked the mental capacity to distribute your belongings to the appropriate parties. Having a video will may prevent these considerations from being grounds for a challenge to your living testament.


For a will to meet legal requirements set by a probate court, the testator must be 18 years of age or older. The only exception to this rule is when you are emancipated, married, or in the military.

Manipulation and Fraud

In some cases, family members may claim that one or more trustees committed fraud by manipulating the testator when the latter was in a vulnerable position. This is more commonly referred to “undue influence” in probate court.

Understanding What Will Make Your Will Valid

A will does not have to be full of complex legal terms and statements to be valid. The document must fulfill specific state requirements. In most cases, a state will require that the document do the following:

  • State that the document is the will and state the person’s name
  • Include a statement that identifies who will receive property or who will become the guardian of a minor
  • Appoint an executor to carry out the terms of the will

A will can be done in your own handwriting and still be valid as long as it meets each of these requirements. If the will is handwritten, you must sign and date the paper. Having at least two witnesses who were adults at the time the will was written and signed is a good way to prevent a family member from challenging the contents. If the will is notarized, none of the witnesses on the will must appear in court to swear a will is valid when challenged.

The Best Protection Against Disputes Is Good Legal Advice

To prevent family disputes and leave a legacy to deserving heirs, it is best to know your state’s requirements when it comes to settling probate before you construct a will. The firm of elder law attorney Andrew Lamkin serves not just Long Island but all of New York state and can help you understand how New York law applies to your situation. Call Andrew Lamkin’s office today at 516-605-0625 for a free consultation.

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The Advantages and Disadvantages of an Adult Guardianship

Adult guardianships are sometimes necessary when an adult becomes incapacitated and the adult can no longer handle his or her financial or medical business. If there is no durable power of attorney in place, the guardianship becomes necessary. The court is the institution that is in charge of appointing a representative to handle the matters of the adult. Generally, an interested family member or friend is considered to be a suitable representative. The court will take several things in consideration before naming the person as guardian.

Initiating a Guardianship Petition

The process is initiated by an interested party filing a petition for guardianship. The petition is required to be accompanied by a physician’s report that indicates the need for guardianship. According to law, the “disabled adult” is entitled to due process under law, so he or she must be served with the petition at least 14 days prior to the court proceedings.

Legal and Social Advantages of a Guardianship

A guardianship offers legal advantages for the representative and the disabled adult. The disabled adult can have his or her important financial and health decisions made by someone that has the person’s best interests in mind. An appointed guardian has a responsibility to report the ward’s activity to the court, so there is a checks-and-balances mechanism in place. Court oversight provides some protection for the representative, especially when others might make accusations that the representative is abusing his or her power. A guardian is required to have a bond issued to offer some protection of the disabled person’s assets.

Legal and Social Disadvantages of a Guardianship

A guardianship has several disadvantages as well. The costs of a guardianship can be fairly prohibitive. These costs include fees for court proceedings, legal representation, and posting a bond. The representative is required to pay a premium for the bond that protects the assets of the disabled adult. The annual reporting that is required by the guardian can be tedious. In addition, privacy is reduced considerably with this type of proceeding. A guardianship hearing is considered a public proceeding, and the public can sit in on the hearing, although not all of the information is public. For instance, the court will seal all medical and physician reports, and these reports can only be retrieved in circumstances where the judge deems it appropriate for the release of these records.

Is a Guardianship the Right Choice for Your Loved One?

There are several alternatives to guardianship, so it would be wise to discuss each of them with an elder law lawyer before deciding on the best option for your loved one. Attorney Andrew Lamkin focuses exclusively on elder law and related legal issues and offers free consultations. Call the Law Office of Andrew Lamkin, P.C., at 516-605-0625 to discuss your situation and your options.

Living Trust Basics

When most people plan to distribute their property at death, they think of a simple last will and testament. At death, the will goes through a legal process known as probate. The probate process is public, with the executor’s actions reviewed by the probate court. In most cases, the process takes several months; problems can turn the timeline into years of expensive legal battles among heirs. Probate can incur significant legal fees for “administrative costs.” And the only end-of-life issue addressed by the will is “distribution of property.”

A Living Trust Is Private

A living trust is drafted and administered privately, usually within the family. At first, the settlor often serves as his own trustee, retaining full control of the property. At the settlor’s death, disability, or resignation, the appointed successor trustee takes over as trustee.

Assets and Administration Stay “In the Family”

While most probates require immediate liquidation of assets and distribution of the proceeds, living trust assets can be retained by the trust if it is financially prudent to do so. Potential problems such as spendthrift heirs and anticipated bickering among siblings can be addressed by provisions of the trust.

Distribution Takes Minutes, Not Months

A successor trustee can assume control immediately in an emergency. While the probate process requires banks to put an immediate hold on an individual’s bank accounts at death, bank accounts in the name of the trust require only proper documentation of the successor trustee’s appointment and the signing of a signature card. Thus funds will be immediately available for funeral and other expenses.

Save Thousands of Dollars in Administrative Fees

Living trusts aren’t just for the very rich. For example, a modest $100,000 estate in Indiana going through traditional probate incurred $35,000 in “administrative fees,” leaving $65,000 for distribution to heirs eight months later. Another $100,000 estate (same state, same extended family) titled in a living trust passed in its entirety to the single heir the same day.

Most Living Trusts are a Package Deal

The living trust package usually includes several documents: the living trust, a “pour-over” will leaving non-titled assets to the trust, a durable power of attorney, healthcare directive and appointment of healthcare representative, as well as a Living Will with end-of-life instructions. The living trust package allows you to prepare for disability as well as death.

Because living trusts include more extensive documentation and bring no future probate administrative revenue potential, they are more expensive up-front than a simple will. However, most people feel that the ultimate savings in time and money make living trusts a worthwhile investment.

Want to Learn More about the Benefits of a Living Trust?

Long Island–based elder law attorney Andrew Lamkin can help you consider every option to best provide for your family when planning your estate. You can receive a free consultation by calling the Law Office of Andrew Lamkin, P.C., at 516-605-0625, or by completing our Contact Form.

How To Successfully Plan For Old Age

We are all going to get old. By planning accordingly, we can assure that our golden years are worry-free, at least in some aspects, and that our children will know exactly what our wishes are.


Ideally, your retirement plan for your old age should begin well before you’re considered old. The best-case scenario would involve being able to start saving money for your retirement before you reach your thirties. However, the majority of twenty-somethings don’t tend to think of such things, and starting your retirement fund a bit later won’t necessarily be disastrous. Taking advantage of your employer’s 401(k) plan, opening an IRA, and having a separate savings account can go a long way when it comes to ensuring financial stability for your golden years.


The years slip by fast, so it’s wise to take a look at your current housing situation and determine where and how you want to live once you reach old age. If you decide to downsize in order to save on expenses, there’s nothing and no one stopping you. However, if the thought of leaving your beloved home is agonizing, you can stay where you are and reap the rewards of being a homeowner. Once you do start nearing retirement age, though, if you find that your finances are not up to par, you may consider one of those popular reverse mortgages to supplement your income and/or savings. Be aware, though, that like anything else, reverse mortgages have their benefits as well as their downside. Only you can decide if such a move is right for you.

Medical Care

If you haven’t done so already, clarifying what types of medical care you want as you enter old age and draw close to the end of your years is a wise move. By having a living will, also known as an advance directive, you make it clear to your loved ones and health care providers whether you want any drastic measures taken to extend your life in the case of a severe terminal illness, or if you lapse into a coma or other vegetative state. By specifying your wishes, you relieve your loved ones of the anguish of having to make such a decision at time when they are already under extreme stress.

Funeral Planning

While no one likes to think about it, drawing up a will and pre-planning your funeral can be a wise decision for those entering their golden years. Death is inevitable; by specifying your wishes to your loved ones when it comes to your death, you relieve them of at least one burden during this trying time. They will definitely thank you for it.

Planning for Later Life but Worried You Haven’t Thought of Something Important?

An elder-law focused attorney can bring you knowledge in experience in planning your estate, creating your will or trust, and arranging for long-term care in later life. Call the Long Island offices of Andrew Lamkin today at 516-605-0625 so you can rest assured that you’ve considered all aspects to make sure that you and your loved ones are taken care of the way you desire.

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How to Help Beneficiaries Avoid Squandering Their Inheritance

Beneficiaries of estates may not be prepared to manage what their parents or others may leave for them after they are deceased. There could be mismanagement of the estate or fights over who receives what after their loved one has died. It is important for will-makers (testators) to help their beneficiaries prepare for their inheritance by placing stipulations on how they can spend the money in their wills. Here is what you need to know about protecting your beneficiaries from themselves.

Testators Should Issue the Money in Payments

To control the flow of money a child receives, parents are advised to set up a trust and determine how the money will flow to the child at each stage of the child’s life. For instance, a parent may decide that one-third may be distributed at the age of 25 and one-third at the age of 30. The rest of the money will be distributed at the age of 35. Parents can even distribute the money on an annual basis if it works for them.

Some parents may opt for an annuity rather than a trust. This contract with the insurance company will obligate the company to make payments to a beneficiary. Annuities pay out on a regular basis for a period of time depending on the how the annuity is arranged.

Testators Can Disinherit a Child

Parents are not obligated to leave anything to an adult child. Children have no right to their parent’s estate if they were intentionally excluded, but there are times when younger children may be awarded a part of the estate if the oversight was not intentional. There should be a clause in your will indicating every child that should receive a portion of the inheritance.

Testators Can Put Stipulations on the Money

If you are not confident about your child’s money management skills, you can put stipulations on the money and how it is distributed and used. You can appoint someone as a trustee that will help your child manage the inheritance. Some parents may ask a friend or relative to be the child’s trustee or even hire a professional trustee. This service requires payment, but it is worth the investment if there is no one trustworthy in your family to take on the responsibility.

A trust can be terminated if the stipulations are violated. For instance, if the child has battled an addiction, the trustee could terminate the trust, and the trust can end at a certain age. Any stipulations you want to set can be determined in the will.

Need More Advice on Protecting the Inheritance of Your Beneficiaries?

You can protect your beneficiaries by planning ahead and making provisions that will prevent them from squandering their inheritance. But it always helps to have legal advice from a lawyer experienced in estate planning, and Andrew Lamkin is just that. His Plainview, New York, law office serves Long Islanders and other New York state residents who are concerned with both providing for and protecting their heirs. Call Andrew Lamkin today at 516-605-0625 for a free consultation.

Related: http://www.nolo.com/legal-encyclopedia/putting-strings-what-you-leave-your-children.html

Guidelines to Inheritance Laws: Who Gets What and Who Gets Nothing

Inheritance can be a tricky subject. Dealing with inheritance issues is often unexpected, and surviving family members may not have a solid grasp of how the process works or who gets what. Some family members may be expecting a huge windfall upon a relative’s death, while others may be worried that they will get nothing. The following guidelines are a base point to help understand how this legal scenario might play out, but there are many factors.

Common Property or Common Law

One major factor surrounding inheritance is the state where the deceased lived. The states of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska follow “common property” law. This simply means that, regardless of will, a current spouse is automatically entitled to half the value of all assets earned during the marriage, since that person is already considered to be the owner of half of all assets. It is important to note that this law supersedes anything written in the will unless the spouse has signed a legal document to the contrary. Also important is that the law applies only to the current spouse. Ex-spouses are not in any way included nor are they entitled to any inheritance unless the will states otherwise. Finally, in order for the common property law to apply, the spouse must argue the case in court. If no case is brought forward in a timely manner, then the will takes automatic precedence.

This is best portrayed with an example. Ben has recently passed. He is survived by his current wife, Jane. Ben had two children with Jane and another son with his previous wife, Kelly. Ben’s estate is valued at $600,000. His will states that his two children from Jane each get $200,000. His other son gets $100,000 and his wife Jane gets $50,000 and his previous wife Kelly gets $50,000. If Jane does nothing, then the estate will be divided as written. However, if Jane lives in one of the common property states, then she can automatically argue that she is entitled to at least $300,000 of the estate. The court would be obligated to provide her with that $300,000, and then decide how the remaining amount would be divided, following as closely to the will as possible.

In all other states, common law applies. This can vary, although most common law states provide an obligatory one-third of assets to the surviving spouse regardless of will. Again, the spouse must argue this in court if the will provides less than this amount.

Children and Inheritance

Children have no automatic right to inherit. They must be named in the will. However, there are some legal protections to prevent children from being automatically excluded or disinherited. One common protection involves a child born after a will was written and not revised to include that child. The law assumes the parent intended to include the child, but simply overlooked revising the will. The court then attempts to adjust the inheritance to include the new child by the same proportion as other children. Similar extensions exist to include children of deceased children under the idea that the inheritance of the deceased child would have naturally passed to them.

Want to Know More about Inheritance Law?

If you are a surviving relative involved in an inheritance dispute, or are writing your will and want to learn how to avoid them, it is best to consult a qualified attorney. Andrew Lamkin focuses his practice on elder law, estate planning, and probate. For a free consultation, call 516-605-0625 today.

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What is Elderly Guardianship and When is it Necessary

The number of people with elderly parents has exploded in recent years, and taking care of an elderly parent, or even two, may be difficult. Sometimes, the health of an elderly person will depend on his or her caretakers. Often, assigning a guardian is required to keep a person safe in old age.

The guardian is often a child or close family friend of the elderly person. The guardian must be over the age of 18 and must not have a criminal record. In cases where an elderly person does not have a close family member for care, the court may assign a different individual, such as a lawyer or a private company to serve as Guardian.

A guardian is assigned when the court decides a person cannot look after himself and may be in danger if someone is not assigned to ensure proper care. Each state has a different set of rules guiding the guardianship process, and an elderly person must be labeled “legally incompetent” or “incapacitated” by the court. This means that person cannot make important decisions on his or her own due to age.

In most cases, a person will bring a case to the court through a document called a “petition,” which is an official request that an elderly person has a guardian assigned for legal rights and care. The process may take some time, and the court may require an evaluation that takes a few months to figure out if someone is competent or not.

It may be necessary for the child or relative of an elderly person to seek guardianship to keep that person safe and to make sure that a person with reduced mental health has proper care so that they do not make bad decisions about important financial or legal items. It would be unfortunate if an elderly person lost the family home because they were scammed out of property or savings.

In addition, a person who is unable to make good financial decisions might also have problems remembering to take medication or attend doctor’s appointments. It is essential that family members remain aware of a parent or relative’s mental state so that elderly guardianship options may be considered. It may be difficult for an elderly person to accept that he or she can no longer make decisions on his or her own, but it is important for guardianship to happen if it will keep that person and his or her personal assets safe.


What is a Guardian Responsible For?

Most of the time, a guardian is someone who is appointed to take care of a minor child. In some instances, a guardian may also be responsible for taking care of an adult-aged person who is incapable of taking care of himself or herself. Additionally, the guardian is also responsible for handling the person’s assets. Sometimes, the guardian may be referred to as a conservator.

Most times, a guardian will be appointed to look after someone at the discretion of the court; however, in traditional circumstances, a guardian is someone who is the parent of a child. On the other hand, it is possible for the court to take away the rights of a parent if the parent is believed to be taking improper care of a child(ren). In addition, it is possible for someone to be appointed as the guardian of someone if the appointing was left in a will. A person can also choose for himself or herself, if of legal age, as to who his or her guardian will be in the event that he or she suffers from some type of severe disability.

The main responsibility that a guardian has over his or her ward(s) is that the latter is taken proper care of, including providing shelter, clothing and food. The guardian is there to ensure that the ward has access to education, health insurance and other types of benefits. If the ward has some type of property, banking account and/or assets, the guardian will manage those as well.

Sometimes, the guardian may or may not have access to the banking account of the ward. For example, if a child has a savings account set aside for him or her in the amount of $1,000,000, the guardian may be granted access to only 10 percent of the funds, leaving the remaining 90 percent to the child once he or she turns 18.

When a guardian is given the responsibility to take care of a minor child or one who suffers from no disability, the guardian’s responsibilities end when the child reaches 18 years of age. On the other hand, there are instances when a guardian is responsible for a ward for his or her entire life.


What a Will Can and Can’t Do

No one likes to think about their own death, but it is important to make sure loved ones are provided for in case it happens. Anyone without a will should give it serious thought. Anyone with a will that needs changes, should do it now.

A legal will is one that the probate or Surrogates court will accept and put into effect. Probate is the process by which an estate is administered. In order for a Court to grant probate, it must be satisfied that the document sets out clearly how any assets are to be divided and that the Will was executed properly. When the court grants probate, an Executor is appointed to properly administer the estate.

A will is still critical to those who do not have much, as there might be personal items such as jewelry, books, or mementos that are to go to specific people. Having a will lays this all out and saves arguments later on. The will also states who you want to serve as executor. This should be the person who you trust will carry out your wishes.

Dying without a will mean a person has died intestate, meaning that State Law will decides who the beneficiaries are.

Examples of what could happen if a person dies without a will are:

  • If a person dies without a spouse or children, but is survived by parents, the parents inherit any assets of the estate.
  • If a person dies and is survived by a spouse, the whole estate goes to the spouse.
  • If a person dies and has a spouse and children, the estate usually gets divided evenly between them.
  • If a person dies and doesn’t have spouse, children or parents, but has brothers and sisters, the estate is divided equally among them.

There are a number of reasons why having a will is a good idea, including:

  • It is one of the only ways to be sure that a person’s belongings, collected over the years, are given to the people the person wants them to. It helps provides security for the person’s family.
  • Having a will transfers a person’s property to their heirs more easily.
  • If a person has minor aged children, a guardian can be named and planning made for their living expenses and education.
  • If a person remarries, a will protects members of both families. A second marriage usually cancels out a will made before the marriage.
  • A former spouse can still inherit because a divorce does not automatically cancel a will. Updating a will regularly can prevent this.

Top 5 Ways to Avoid Disputes in Your Family over Your Will

Planning an estate can be stressful. What is often worse, though, is the state that the living family is left in after you pass. If your estate is not carefully divided, a family can quickly turn on itself. These five tips can help to save you from family turmoil:

1. Meet with an Attorney

A few wrong words can ruin a will, and a will constructed without an attorney can have trouble standing up to probate. If you want to make sure that you minimize family squabbles, have an experienced estate planning attorney help you put together your will. This will lend it a greater air of legitimacy and give you a chance to put together something that can withstand your death.

2. Discuss It

It is always important to discuss your estate before your death. If it is important to you that a specific person receives an item, let the person know. Likewise, explain to any family member left out of the will or who will receive minimal inheritance why this is being done; this will allow those family members to know your reasoning and might stop them from taking it out on the rest of the family.

3. Grouping

It might be wise to set up your will to leave gifts to a class of people rather than to individuals. You might want to leave your estate in a certain percentage to a spouse and then your monetary assets in equal percentages to your children or grandchildren. Equality has a wonderful way of ending arguments among survivors, even if the resulting inheritance is not exactly what was expected.

4. Consistent Updates

It is also wise to update your will consistently. New grandchildren might be born or a marriage might dissolve in life, but you might have clauses in your will that have not reflected these changes. If you want to stop fights before they start, try to update your will around the time of any major life event. That will, at the least, keep things current.

5. In Terrorem

Finally, there is the “nuclear option” of estate planning – the in terrorem or “no contest” clause. In some states, an in terrorem clause can be used in a will to punish those who would challenge the will and are not successful. These clauses will cause an individual to be removed from the will completely or to only receive a smaller share of his or her inheritance. Given that the vast majority of will challenges are failures, this is often a potent warning. Many people want to include an in terrorem clause when they are disinheriting a family member. When using an in terrorem clause in this instance, it a good idea to leave a small amount (i.e. $10,000) to that beneficiary so that they have something to loose by contesting the will.

Bove, A. 2005. The Complete Book of Wills, Trust and Estates, 3rd Edition.

Everything You Wanted to Know About Special Needs Trusts

By creating a special needs trust, you can establish a firm financial future for someone with disability. If you currently provide financial support for a child, grandchild or other individual who needs special assistance, you have the option of transferring assets, such as real property and funds into a special needs trust. It will secure long-term support for your loved one. In addition to receiving the financial benefits of the trust, the beneficiary may also continue to be eligible for governmental health care benefits as well as other governmental financial benefits for individuals with disabilities. Hence, the value of the trust assets will not affect the beneficiary’s eligibility for government assistance.

The beneficiary of the special needs trust is the individual who will receive the trust property. There is no age requirement for the beneficiary. Thus, you can establish a trust for an infant, child, elderly individual, spouse and the like.

When you set up a special needs trust, as the creator of the trust, you are the grantor or settler. The trust assets are transferred in the trust, and a trustee is required to manage the property in the trust. With a special needs trust, you can designate yourself as trustee in addition to naming a successor trustee. Upon your death or if you resign as trustee, the successor trustee will occupy the role as the trustee and manage the trust property.

The trustee is required to ensure that the trust property is distributed to the beneficiary in accordance with the terms of the trust document. The person who creates the trust must create a trust document, which determines how the property will be distributed to the beneficiary. Many people create special needs trust to provide for shelter and income for individuals with disabilities. The beneficiary does not have the power to terminate or revoke the trust. Also, the beneficiary cannot directly withdraw the funds from the trust. The trustee is the only person who has the power to use the trust property, but only to the extent that is allowable by the trust document.

When you initially create a trust, you can begin transferring property into the trust. You can also allow other people to transfer assets into the trust. When you create an estate plan, you can also transfer additional property into the special needs trust to provide support for the beneficiary upon your death.

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