January 28, 2020










What You Need to Know If You Are Named Executor of a Will or Trustee of an Estate

Whether you have been named the executor of a will or a trustee of an estate, you have just been appointed a major role. This rule comes with strict guidelines and expectations that you must follow as a fiduciary duty. Failing to follow these duties could not only result in you being removed as the executor or trustee, but you may also face a civil lawsuit, depending on the violation.

You most likely already knew that a family member or good friend named you as the executor or trustee. While you may feel honored to take this role, you now have taken on an exceptional number of responsibilities. Once that loved one passes away, you must take over duties of the estate so that it can be closed out by the court.

It is in your best interest to contact a local attorney for assistance with your role. An attorney can help go over all of the responsibilities that you must complete, help you stick with strict probate court deadlines, and even assist you with some of the various responsibilities so that you are not shouldering the entire burden.

Your Primary Job as an Executor or Trustee

As the personal representative, you will be responsible for settling the deceased’s final affairs.

Just some of those tasks that you will take on include:

Locating Property and Assets

Your first job will be to locate any property and assets in your loved one’s name. This can include bank accounts, retirement funds, real estate, and other possessions. If the deceased has set up a trust, all their assets and property should have been transferred into the trust already. In this case, your job becomes easier because all of their assets are already accounted for and assigned to the trust.

If there is no trust established, you will need to use any will and other documents to locate the deceased’s property. You must also include any jointly held property or properties that have a beneficiary designation. Assets with a beneficiary designation will not go through probate court and instead pass directly to the named beneficiary. A common example of an asset with a beneficiary designation is a retirement account and sometimes even a bank account. Property that is jointly owned would transfer to the joint owner automatically when the other owner passes away.

Any property or assets that you find that are titled in the deceased name would go through probate court if they did not transfer ownership over to a trust.

What Is Probate Court?

Probate court is the state’s oversight of a person’s possessions and ensuring that their last wishes are carried out per their will. The only time you would not have to deal with probate court is if you are a trustee of an estate. Trusts do not go through probate court so, instead, you would use the trust documents and follow any instructions in them for distributing assets.

Probate assets are those that must go through probate court. A person’s assets can go through probate court if they have a final will and even if they do not have a will.

Meeting with an Estate Attorney

One of the other tasks you will complete early on is obtaining documents you need to meet with an attorney. Some of the documents you need to obtain before your first meeting would include:

  • Copies of the will
  • Death certificate
  • Funeral bills
  • Documents for divorces
  • Documents for any armed services
  • Copies of any trust agreements

Opening the Estate

As the executor of a person’s estate, you will need to open the estate in probate court. To start, you will file the will with the county clerk along with a petition to probate the will and receive letters of testamentary. You will need the letters of testamentary to access bank accounts in the deceased person’s name.

Once you have opened the estate and created an inventory of assets, you will then open a checking account just for the estate. You must then start the claims process with all creditors and not only notify them of the death, but ensure any pending debts are paid.

You will also be required to file a final tax return for the estate. The tax return and paying creditors are done before any assets are distributed to beneficiaries of the deceased. You may need to obtain updated appraisals, especially if the last appraisals of the property are outdated.

During all these tasks, you will notify named beneficiaries of the estate about the pending probate process and any designations found in the will or designations in the trust.

Once all creditors have been paid and the taxes filed, you will be able to distribute the remaining assets to the named beneficiaries.

What If You Don’t Need Probate Court?

If there is a trust, you do not have to worry about going through probate court. While the process is easier, you still have numerous tasks that you must complete as the trustee. You must review all trust documents and notify beneficiaries named in the trust about their inheritance. Even with a trust, you will file a final tax return for the estate.

Should You Use an Attorney to Help with Your Role as an Executor or Trustee of an Estate?

While there are numerous guides available online, no one should attempt to handle their duties as a trustee or executor alone. Both roles have numerous tasks assigned to them. And if you already have a family or job, it is a lot to take on. Also, you would need to know which documents to file and where to file them. And, there are strict timelines you must follow as part of this job as well.

Having an attorney assist you with your job is one of the best decisions you could make. An attorney handles probate and trust on a weekly basis. They know what you must complete and when you must complete it. Furthermore, they are there to ensure you fulfill your duties in your role.

If you were named a trustee or executor and you need legal assistance, contact attorney, Andrew M. Lamkin. Schedule your free case evaluation by calling our offices, or contact Andrew M. Lamkin, P.C., online to learn more about our services.

What Does Guardianship of an Elderly Parent Mean?

Elderly guardianship occurs when the court appoints one individual to care for an elderly party who can no longer care for themselves. The guardian will then assume duties and responsibilities for that elderly person. The individual appointed does not always have to be a family member, but usually a family member is appointed for this role.

When Would an Elderly Individual Need a Guardian?

Sadly, an individual may be unable to care for themselves at some point later in life. Whether it is due to a medical condition or just part of aging, they may be unable to maintain hygiene, manage their finances, or remember to take medications. If an elderly adult cannot take care of their own daily needs, then it may be in their best interest for the court to appoint a guardian who will then oversee that care.

How Do You Appeal to the Court to Receive Guardianship of an Elderly Adult?

Typically, the court will decide if the party seeking guardianship is suited for their role. In these cases where more than one person is requesting guardianship, the court will decide which party is more qualified to care for the elderly party. Other times, the court may split duties between two guardians. An example would be having one guardian handle daily care and medical decisions while another handles all financial tasks.

To request to become a guardian for an elderly individual you must first file legal documents with the court. You will also need medical evidence that the elderly individual is incapacitated. Also, if the party already has a living will or advanced directive, the court will use that document when determining the best guardian for the aging adult. In most cases, if the individual named in the living will can take care of the elderly adult, the court will grant them guardianship.

When there is no living will or advanced directive, the court prefers to give guardianship to a spouse, adult child, or another adult family member because they are more familiar with their loved ones needs and care. When a relative is unavailable or not willing to serve in the role, or the court finds that they are unqualified, they may select a professional or public guardian instead.

What Can an Appointed Guardian Do?

An appointed guardian’s sole responsibility is to ensure that the elderly person receives the care that they deserve. Just some of the tasks that they may take on can include:

  • Determining where they will reside;
  • Consenting or denying medical treatments;
  • Monitoring them in their residence;
  • Hiring in-home care help;
  • Determining how finances are managed, including what benefits are used;
  • Paying bills;
  • Managing any assets and real estate the elderly individual owns;
  • Keeping records;
  • Making any end-of-life care decisions necessary;
  • Consenting to the release of confidential information; and
  • Reporting to the court about their duties and status as a guardian.

Does a Guardian Receive Compensation for Their Work?

A court appointed guardian can receive compensation for their services. However, when a friend or family member becomes the guardian, they do not typically charge for their services. Compensation is more common when a private or public guardian is appointed by the court who is not related to the adult they are caring for. When compensation applies, the court must approve that compensation amount and the guardian must keep careful records of all services and time dedicated to their role to justify compensation.

Can Friends Receive Guardianship?

The courts prefer immediate family members when looking for suitable guardians. That doesn’t mean a friend of the elderly individual could not petition for guardianship. If immediate family members do not wish to be guardians or they are not qualified, a friend could apply for the role with the court. You would still need to prove to the court that you are the most suitable guardian for your friend before a judge would approve the guardianship petition.

Can You Argue against a Person Who Has Guardianship?

If your loved one already has a court appointed guardian, but you feel that they are not looking out for your loved one’s best interests, you can still file a petition with the court to have that guardian removed. You will need to supply evidence showing that the guardian has breached their duty of care, and evidence showing that you are the more qualified guardian to take over responsibilities.

Any case involving removing an existing guardian should be handled by an attorney. These cases are exceptionally complex and require in-depth knowledge of local elder laws and wards.

Do I Need an Attorney to Petition Guardianship?

If you are concerned about your aging parent and you would like to explore your options for applying for guardianship, it is best to speak with an attorney. There are multiple steps involved in applying for the guardianship of an adult. An elder law attorney knows these special requirements and can assist you with gathering all documentation necessary to file your petition. Furthermore, an elder law attorney can help argue against any petitions in court from other family members trying to seek guardianship and lookout for the best interest of your loved one.

If your loved one already has a living will, you should bring that document along with you to your consultation appointment. Even if you are not named in the living will, but you feel the named party is not qualified to care for your loved one, you may be able to petition for guardianship and contest the party named in the living will. In complex situations like this, it is best to speak with an attorney.

Elder law attorneys have handled countless guardianship cases regarding aging adults. To get started on your case or to draft a living will that names a guardian for your own care, schedule a free consultation today. Attorney Andrew M. Lamkin, P.C., can assist you with your guardianship case.

Get started by scheduling your appointment. You can do this by calling the office directly or contacting him online with your questions regarding adult guardianship.

What Is the Difference between Elder Law and Estate Planning?

Most people use the terms “estate planning” and “elder law” interchangeably. If you find yourself curious whether they are the same or not, you are not alone. Estate planning deals mostly with helping plan for disability, death, and taxes. The purpose of estate planning is to make sure loved ones receive their inheritance and are taken care of after one’s death.

Elder law, on the other hand, involves some of the same issues as estate planning but also touches on others outside of it. Elder law helps those who are aging take care of their legal and health needs. One difference between elder law and estate planning is that elder law can help with long term care. For example, you may need to plan for nursing home care later in life, and an elder law attorney can help you do so.

While elder law can overlap some of the same tasks as estate planning, estate planning does not go into long term care planning or assisting someone with Medicare. An attorney, however, may offer both estate planning and elder law services.

Digging Deeper into the Definition of Each and How to Tell Which Service You Need

Here, we will go over each type of planning process so that you can determine which one is right for your current situation.

What Is Estate Planning?

Estate planning is a long-term, proactive planning procedure that addresses what you would like to happen after your death. Some of the items you plan for in your estate plan can still help you while living, including creating a trust or having a health directive.

Most importantly, when you are doing estate planning, you are preparing for post-death situations. Your estate plan establishes several rules and guidelines for loved ones, including who inherits what from your estate, how you would like to be buried, and any special instructions you wish to leave behind for loved ones.

When you meet with an estate planning attorney, you will let your attorney know any concerns or wishes you may have about how you would like your property distributed after death. Your attorney will then consider your estate size, current laws, and any unique factors to create an estate plan that addresses all of those concerns and wishes. Some items you may take care of during this process include:

If you do not have an estate plan, the court will decide how to distribute your assets. The court follows the current law, and your estate’s assets may go to parties that you would not have given your assets to initially. Therefore, it is important that anyone with assets creates an estate plan to make sure that the right parties receive an inheritance. An estate plan essentially tells the court where you would like your money to go, who will care for any minor children you have, what you would like to happen if you become disabled, and may help you avoid probate court if you establish a trust for your assets.

Most importantly, estate planning is ongoing. As your family changes or you acquire new assets, you will update your will accordingly. Most attorneys advise their clients to update or at least review their existing plans once a year or once every other year. You should also revise your plan immediately after any significant life change. An example of a substantial life change would be remarrying, having another child, or purchasing property.

What Is Elder Law?

While your estate plan creates a guideline for surviving family members to carry out your wishes, elder law addresses issues that will occur during your life. You may need to save assets so that you can use them for care later. You might also need assistance in creating instructions in case you become incapacitated or disabled later on.

Planning for long term care is very complicated. Most people hire attorneys because they do not understand the nuances of state aid programs and how their assets affect eligibility. Qualifying for these types of benefits can be confusing, and all it takes is a minor error on your initial application to set back the receipt of benefits. Your attorney can advise you on how to protect those assets. They will explore options for transferring your assets and advise you on which assets you can still keep so that you qualify for insurance benefits without losing all of the retirement funds you have saved up for.

Your attorney can also help you complete the necessary applications for Medicare and Medicaid. When you have an attorney complete these applications for you, you are more likely to be accepted than if you attempt to do them yourself.

Hire an Experienced Attorney for Both Estate Planning and Elder Law

It does not matter where you are in your life; you should meet with an estate planning attorney in your area to explore your options. An attorney will review your current estate and help you decide which parts of estate and elder law planning apply to you. Most importantly, you need to create an estate plan now. Even if you do not have many assets or no extended family members, having no estate plan means that the court will decide how to distribute the assets you do have.

You can protect loved ones, dictate who receives what from your estate, and provide for family – all by starting with an estate plan.

Get started by scheduling a free consultation with attorney Andrew M. Lamkin today. This is a no-obligation meeting, and we can review your existing estate plan for changes needed, create a new estate plan, and address any elder law planning needs you may have. Call my office directly to schedule a consultation appointment or request more information online.

Do Bank Accounts with Beneficiaries Have to Go through Probate?

Probate is a normal process that occurs after someone passes away, and the courts verify that their assets are distributed to the proper parties. Some assets, such as insurance policies and retirement accounts, do not have to go through probate. That is because these assets usually have a designated beneficiary who is named at the time the account is created.

Anytime you have an account with a named beneficiary, special rules apply. Now, not all assets with a named beneficiary skip probate. Therefore, if you are estate planning or you are an executor reviewing the law, it is best to speak with an estate planning attorney to see how named beneficiaries apply to your assets.

How Are Bank Accounts Distributed?

How your bank accounts pass at death will depend on the type of setup you chose when you initiated the account. It will also depend on whether you were the sole owner of the account, if you signed a payable on death document, and whether there are any applicable challenges to your named beneficiaries.

Bank Accounts with You as the Sole Owner

If you own a bank account that is in your name only, you might have had the option to sign a document designating a beneficiary for your account upon death. If, however, you do not sign a designation document, then your bank account funds would go through probate. The court would use the standard estate laws to determine who would receive the funds from your account along with the designations you have made in your will.

Therefore, this is an instance where bank accounts would go through probate court before funds are distributed.

Bank Accounts with a Named Beneficiary on a Payable-on-Death Document

Most financial institutions make the payable on death document optional. It is advisable that you pick someone when you create your account, and make sure that you update that document throughout your lifetime, especially if your beneficiary has changed. When you have a signed beneficiary document, the funds will not go through probate. Instead, that money is no longer part of your estate. The funds in the account will be transferred to the beneficiary you named on the document automatically.

To claim the funds, the beneficiary would need to go to the financial institution with current identification and a death certificate. The bank will already have the beneficiary designation form on file. They will verify that the person claiming to be your beneficiary is the correct party, and then they will transfer the funds into their name.

As you can see, it is essential to review your beneficiary designations. If you do not update this form, your funds will automatically transfer to someone that you may no longer wish to inherit your funds. If you cannot recall the party you designated when you opened your bank account, you can visit your financial institution in person and request a copy of the beneficiary designation form. You can then update it to a more recent beneficiary if you wish to do so. The beneficiary designation form overrides your final will. So, even if your will designate a different party, the bank honors the form instead.

Bank Accounts That Are Jointly Owned

Joint bank accounts are complicated. If you have a joint account with someone and one of the parties dies, usually the surviving joint owner automatically becomes the sole owner of the bank account. In this case, the account would not go through probate court. However, there are instances where the funds may go through probate court, or there may be a contest against who is the rightful owner of those funds.

Right of Survivorship Issues

When a bank account has two names owning the funds of that account, it is called a right of survivorship. That means, when one party dies, the surviving owner becomes the sole owner. Usually it is clear which party is the sole owner after the other party passes away. If, however, there are more than two parties, it may complicate determining how the funds will be distributed.

When Someone Contests the Joint Ownership

In most cases, when a couple owns a joint bank account, it is unlikely anyone would argue that someone else is entitled to the funds when one party passes away. However, there are instances where other family members or beneficiaries of the estate may argue that the other joint owner is not the intended beneficiary on the account. In this case, they would need to petition the court and have a hearing to determine the rightful owner of the funds.

Bank Accounts Held by a Trust

Another type of bank account that does not go through probate court is a bank account held by a living trust. When you set up a living trust, you pass overall assets to your trust and your trust is now the owner of those assets rather than yourself. All assets in your trust bypass probate court. If you have a lot of high-value assets and you want to save your family the hassle of dealing with probate court, creating a trust is most likely the best route for you and your loved ones.

Speak with a Local Estate Planning Attorney First – before You Assume Accounts Will Not Go through Probate

As you can see, there are plenty of instances where a bank account will not go through probate and other cases in which it will go through probate. Therefore, the only true way to see which bank accounts go to probate court and which do not is to speak with a local attorney in your area. An attorney can review the law, review any beneficiary designations, and then decide which accounts are likely to go through probate and which will automatically pass to the named beneficiary.

To explore your options, especially when it comes to protecting loved ones and ensuring bank account funds are distributed as you intended, contact attorney Andrew M. Lamkin, P.C. for a free case evaluation. Call 516-605-0625 to schedule now or contact us online with your questions.

What Are the Duties of a Personal Representative of a Will?

A personal representative of your will, also known as the executor, is the party responsible for carrying out your final wishes, evaluating your estate, filing proper documents, and distributing assets to beneficiaries. It is a role that you should not fill with the first person that comes to mind. Instead, you must carefully think about who you can trust to take on possibly one of the most important decision-making roles that greatly impact your loved ones.

Your personal representative tackles numerous tasks as part of their job to administer your estate. They must meet deadlines, file the proper paperwork, be organized, and have self-accountability. Most importantly, you want someone responsible enough to take on such a large to-do list; otherwise, your loved ones will suffer.

Opening the Estate – The First Priority

As the personal representative, the first step is to file a Petition for Probate document with the court. To do so, the representative must have a death certificate and any registered will that names them as the executor. Most courts require an estimate of the value of assets at the time of death with the petition, too.

After the courts agree to open the case for probate, now the representative will request a letter of administration. The letter grants them the authority to access bank accounts and other assets tied to the estate as part of their role. They will need this letter to transfer assets in the deceased’s name, sell or acquire new assets, and eventually administer the estate.

Identify the Assets of the Estate

Once you have the letter of administration, you must identify any assets of the estate and collect them.

You may need to collect bank statements, investment account statements, and any records of tangible property. Even after you collect and identify, you must also appraise the property. Hire a licensed appraiser to value the property, because it may have changed since the will or trust was initially created. It is your duty to professionally appraise these items. By doing so, you can decide the value of the asset. Then you can also avoid any disputes over assets and use whatever assets you need to sell in order to finalize debts.

You also have to file an inventory report with the appraised values within a specified amount of time. So start the asset collection process quickly.

Opening an Account Dedicated to the Estate Only

Next, you must open a bank account for the estate. You will need to have a federal tax ID number for the estate when you open it, and that tax ID is used to open that bank account. The new bank account is where you can move funds from all other accounts in the deceased’s name, and then you will use those funds to pay any outstanding debts, taxes, and other expenses connected to the estate administration process. All remaining funds, when you are ready to distribute assets, will go to the named beneficiaries of the will.

Notice to Creditors

Another duty is to notify creditors of the death. Creditors then have time, which is dictated by state law, to file any claims against the estate for payment. Once you receive those claims, you must pay all legitimate debts first. If the creditor doesn’t file within the limitation, then you do not have to pay them. You should consult an estate attorney, however, before assuming you can forgo payment on an estate’s debt.

Accounting of All Financial Activity

As the representative, you must keep detailed records. You need to document all financial activity for the estate, including fees, your wages, debts paid, assets acquired and/or sold, etc. These reports can be given to beneficiaries upon request as well as to the court. The court might require that you file reports periodically.

Filling the Final Tax Return

Before you can distribute assets or pay debts, you must first file the estate’s tax return and pay any taxes due. You should work alongside an accountant because this is not like your ordinary tax return.

Paying All Debts to Creditors

Any outstanding debts must also be paid. You will have any creditors who made claims against the estate, along with any lists of debts you know of, that you must pay using estate funds. As the personal representative, you are able to access account funds and sell assets, as necessary, to pay off debts.

Distribute to Beneficiaries

Once all other steps are completed, debts are satisfied, and the court gives you approval, you can then distribute assets to the beneficiaries.

By now, a few months have passed, and you will still need to keep detailed records of your hours, costs, and retain receipts for payments.

Do You Need an Attorney to Assist with the Personal Representative’s Role?

Sometimes, it is best to have an attorney help with the personal representative’s duties. Whether you are the personal representative of an estate that needs help, or you are creating an estate plan and deciding who to appoint, consulting with a local estate attorney is one of the best first steps you can take.

An attorney can help you navigate through the duties of the role, offer opinions when selecting your representative, and also make sure that your estate plan clearly outlines what the personal representative will do with your assets so that loved ones are cared for.

To explore your options, contact attorney Andrew M. Lamkin, P.C. He has helped countless representatives close out estates and has helped numerous individuals create estate plans that guide their representatives and care for their loved ones, even when they are no longer there to do so themselves.

Schedule a free consultation by calling the office or request more information by completing the online contact form.

How Do I Prepare for Estate Planning?

Getting ready for estate planning requires you to not only gather the right documents, but also to create a list of what you want, to determine your expectations, and to be ready to answer important questions during the estate planning process. To ensure you are ready at your estate planning appointment with your attorney, ask for a checklist of items. Most attorneys have an initial consultation where they discuss the process and tell you what you need for your official planning appointment.

As you prepare for the first meeting, or if you are waiting for your initial consultation, we have compiled a list of things you can take care of ahead of time to save on extra appointments and to help speed along your estate planning process.

Gather Your Family Information

One step you need to complete before you plan anything out is your family information, including their names, addresses, phone numbers, ages, and relation to you (grandchild, child, sibling, etc.). These family members are those who will inherit from your estate, parties that may receive care after you pass, and you may even have a family member in mind for your executor.

Do not forget about any nicknames that family members may go by, so that when you draft your will, you can use clear indicators and there will be less room for contests later.

Financial Information

Financial information breaks down into two types: non-retirement and retirement. Both of these are important in estate planning, so you will need to gather information for each.

Non-Retirement Information to Gather

For your non-retirement information, you want assets that include things like your bank accounts, investments, stocks, and bonds.

If you have access to it, bring the titling of those assets, such as for your home. You can also bring along statements that show the account holders, account number and institution, and the exact balances. These balances are important, because they will help your estate planning attorney determine if your estate falls under the estate tax category.

Retirement Financial Information to Gather

Your retirement account is part of your estate. Therefore, you must gather information on any retirement accounts, even those you are no longer actively contributing to, but are there for distribution when you retire. This includes employer-sponsored programs, private retirement accounts, Roth IRAs, TSPs, and any retirement accounts you may have inherited from another spouse.

If it is an employer program, bring the institution name and employer information, beneficiary designations you filled out when you opened the retirement account, and the amount of the retirement plan at the time. Naturally, if you are still working, your retirement account will grow, but giving your attorney an idea of what asset amounts you have is always best.

Life Insurance Policy Information

Your attorney needs life insurance information, including the type of policy – such as whether it is a whole or term – beneficiaries named when you created the policy, the company holding it, and the payout amount.

Real Estate Financial Information

You must gather documents about any real estate property, including vacation homes or rental properties you own.

Bring the property address, ownership information (such as joint or sole ownership), the current market value, mortgage balances (if any), and indicate which properties are your primary residence, secondary, rental, or if any are part of a business.

Personal Property

Personal property are tangible items you plan to pass along to loved ones. They may hold more of a sentimental value than dollar amount, but they are still something you need to gather information for if you want to include them in your will or if you plan to transfer them into a trust.

Some property you need information on includes antiques, automobiles, art pieces, collectibles, and jewelry. If you know the value of the item, bring any valuations along. For example, you may have a piece of jewelry appraised as part of your homeowner’s insurance policy, which you can bring along.

Be Ready to Answer the Tough Questions

You have a lot of questions to answer while estate planning, and some of them are not easy. Not only are you addressing your mortality and the reality that you will eventually pass along items to loved ones, but you must pick and choose family members – which may cause tension within your family network.

Some questions you should write down and have answers to before your appointment include:

  • Who in the family will receive which tangible property items? Make sure you are specific about those items.
  • Will there be any family members excluded from the will entirely?
  • How much, if any, do you intend to leave to charity, organizations, or churches?
  • Which party will you name as your executor, and who can serve as a backup if your initial pick is unavailable at the time?
  • Do you want to serve as your trust’s trustee, or do you wish to appoint someone else?
  • Do you have minor children? If so, who will care for them? If that party cannot, who is the secondary party to care for your children?
  • How will you ensure minor children have the funds they need in order to be cared for?
  • Will you want a living will and durable power of attorney created at your appointment? If so, who will you name as your proxy for those documents?
  • Have you planned out your funeral arrangements? If so, write down the details of how you would like your funeral completed and any receipts for prepayments made toward it.
  • Do you plan to donate, if any, of your organs?

Not Sure Where to Start? Contact a Local Estate Planning Attorney First

Figuring out a good starting point, especially with estate planning, can be incredibly difficult. Not only do you have numerous documents to track down, but difficult questions to answer. It is best to schedule a free, no-obligation consultation with a local estate planning attorney first.

Attorney Andrew M. Lamkin can help with your estate planning needs. He has helped countless others just like you navigate the nuances of estate planning so that they can protect their assets, legacy, and loved ones without the stress of trying to do it alone.

To explore your options and to start the process, schedule a free case evaluation or request more information online.

What Is the Average Cost for Estate Planning?

A common question asked is how much estate planning will cost. Unfortunately, this is not easily answered by any attorney.

Numerous factors play into the cost. Not only do attorneys have set rates and hourly fees that vary, but then there are those factors that can increase the complexity of an estate plan and cost more. Instead of scouring the web to find a flat fee or estimated cost, you should understand each layer that goes into pricing, then consult with an attorney to find out how much your estate plan would cost you – rather than comparing the averages online.

Initial Consultation Is Usually at No Charge

Most estate planning attorneys offer free upfront consultations. That means you can meet with an attorney free of charge for 30 minutes to 1 hour (depending on how they work consultation appointments). You will go over your needs, and the attorney can then tell you how much your plan may cost. An attorney can also determine if you qualify for a flat fee or if you will need to pay by the hour due to the complexity of your estate.

By far the best way to find out how much it will cost you is to talk with an attorney in person. Once they understand what you need, your estate’s current asset value, and look over your financials, they can tell you what to expect.

From there, shop around, get a few estimates, but also consider how you feel about each attorney you meet with before you pick one.

The Flat-Fee Estate Planning Doesn’t Work for Everyone

Some attorneys offer a flat fee for an estate plan. The flat rate will include your basic preparation of estate documents, including creating a final will and having it witnessed, notarized, and filed. Some lawyers might even help with a trust under flat-fee plans, but most attorneys prefer to work hourly on trusts as they are rather complicated and hard to predict in a flat fee plan.

If you do meet with an attorney that charges a flat rate, ask for all fees that are outside of the rate. Sometimes, the flat rate only covers the draft of your will and not the notary or other steps required to complete the legal process.

Hourly Rates for Estate Planning May Apply

More complicated estates, and those that need more than a final will, often are charged by the hour. Attorneys tend to keep their hourly rates competitive with others offering estate planning in the area, so you shouldn’t pay an outrageous amount for one lawyer compared to another.

When an attorney charges by the hour, you will want to ask how they calculate hours. Some round up, so a ten-minute conversation might be billed in 15-minute or 30-minute increments. Also, you will want to ask how emails and quick phone calls play into your hourly rate so that you do not accidentally spend more of your retainer just asking a quick question over email.

Do not assume that the higher an attorney’s hourly fee, the more experience they have. While respected attorneys may charge more, there are equally qualified attorneys who charge less because they want to help the public unlock protections rather than charge enormous fees for estate planning.

Compare the hourly fees from multiple attorneys you meet during your free consultations. Also, make sure there are no flat fees on top of the hourly, such as filing fees you may have to pay in addition to your attorney’s hourly rate.

Likewise, when an attorney charges by the hour, they typically require a retainer, which is an upfront down payment on your legal services. Then, you will receive hourly statements and billing, and the attorney’s office will deduct those from your retainer.

Items That Complicate Your Estate Plan – and May Cost You More

Some factors can increase the cost of your estate plan, and some of these will force an attorney to deviate from a flat rate and move to hourly.

Some items that complicate an estate planning process include:

  • Multiple Children: If you have multiple children and you want to provide assets to them upon your death, you may need a trust to protect those assets and dictate how they are distributed.
  • Assets in Multiple States: Do you own property in more than one state? Now your attorney will need to address that property, the laws of that state, and consider all variables when drafting your estate plan.
  • High Value Estate: If you have a high value estate, you do not want your loved ones to pay estate taxes upon your death. So, your attorney will need to work creatively to distribute assets, donate to charities when applicable, and find ways to save your family money.

Remember the Benefits of Hiring an Attorney to do an Estate Plan for You – Don’t Just Look at the Price Tag

Before considering just the price tag, think about the benefit to hiring an attorney. When you hire an estate planning lawyer, you are unlocking years of experience and knowledge and you can enjoy peace of mind knowing your estate plan was done correctly and follows the law – saving loved one’s time and hassle later.

Most importantly, never pick an attorney solely by price. Instead, assess how you feel after your consultation, whether you could talk with them freely and create a good rapport, and if you feel they can handle your estate properly.

Ready to Hire an Estate Planning Attorney? Contact a Local NYC Lawyer Today

If you are ready to protect your assets and loved ones, contact a local estate planning attorney. Attorney Andrew M. Lamkin, P.C., can help you with your estate plan, trusts, and even setting aside assets for minor children to ensure they are taken care of if something were to happen to you.

Schedule a free consultation to discuss your estate’s needs and get an estimate on how much your plan would cost by calling 516-605-0625 or requesting more information online.

Do You Need a Lawyer to Apply for Medicaid?

Most seniors and their loved ones apply for Medicaid themselves rather than use an attorney. While you don’t need an attorney to file your application, doing so provides you and your loved ones with numerous benefits. One of the biggest reasons seniors do not use attorneys is not because they don’t need one, but because they are afraid of how much it would cost them.

In reality, an attorney can help you and your family save money and ensure that you get the care you need.

What Is Medicaid and When Do You Apply for It?

Medicaid is a government health coverage that is offered to individuals to cover healthcare expenses, including those not covered by Medicare. To apply for Medicaid, you must either be a low-income family, qualified pregnant woman, or a party receiving their Social Security Income. Every state has requirements that they use to determine eligibility, especially if you are outside of the normal edibility requirements created by federal laws.

In addition to being the right status and age, you must meet financial requirements. Your income, including any retirement, pension, and SSI income that you receive is considered when you apply for Medicaid. Your assets also play a crucial role in eligibility.

What Happens to Your Asset When You Apply for Medicaid?

You can qualify for Medicaid with some assets, but you must have limited income and assets available to you – otherwise, the government expects you to use those assets to pay for your medical care. Typically, you can keep about $2,000 in assets and married couples can retain up to $3,000. Most applicants do not have to sell their home to qualify for nursing home assistance, but the state might request the house after the applicant’s death to pay back benefits.

Other non-exempt assets can be forfeited when you apply for Medicaid benefits, which is why you need to take steps to protect those assets long before you apply.

The Benefits of Hiring an Attorney When Filing for Medicaid

If you are applying for Medicaid, it could prove beneficial to use an attorney. Elder law attorneys understand how the application process works, what factors the government considers, and they make the process easier. All it takes is a missed document or error on your application to receive a denial, and the longer you delay unlocking the benefits, the harder it is on your family financially.

Some benefits to using an attorney versus doing it yourself or having a family member apply for you are:

Attorney’s Do Not Have a Conflict of Interest

Sometimes nursing homes will refer family members and residents over to a service that helps their potential clients apply for Medicaid benefits. These services are non-attorneys, but the preparer of that Medicaid application has a serious conflict of interest. After all, they are loyal to the facility referring patients to them and to the patient. Medicaid applications, to be successful, do not need conflicts of interest further complicating matters.

It is in the nursing home’s best interest that your Medicaid application gets approved, which is why they refer you to these services. But it is also in your best interest to take steps to protect your assets and make sure you get the care you need. An attorney cares about both of these, while preparation services are more concerned with pushing the application through as quickly as possible – regardless of what happens to assets in the midst.

An attorney has one loyalty owed: to the client. That means your attorney will work to first protect your assets and then help you with the Medicaid process so that the legacy you spent years building is not consumed just by filing an application.

You Could Save More Using an Attorney

A nursing home is an extensive cost. Some nursing homes cost thousands each month, but the fee from an attorney is often less than one month’s stay at a nursing home. When you consider the costs of paying for a nursing home or in-home care out-of-pocket while waiting for Medicaid benefits versus the cost of paying an attorney to help you apply, you will quickly see the savings add up.

Furthermore, an attorney will consult with you for little to no fees upfront. They will help you understand your rights and they can even explain how their service will benefit you and your family when applying for Medicaid.

Attorney’s Have Deeper Knowledge of the Medicaid Process and Experience Applying

You will apply for Medicaid once in your lifetime – maybe twice if you help a family member apply. Attorneys help individuals apply for Medicaid weekly. They go over the regulations and rules almost daily, advise clients on how to protect assets, and they can help family members preserve funds for loved ones while accessing Medicaid benefits.

Added Peace of Mind

When you use an elder law attorney, your attorney will advise you on your rights and your options for protecting your assets. Sometimes, there might be nothing you can do to protect your assets, but you still get peace of mind knowing you did everything you could ahead of time before filing your application.

Consult with an Estate Planning Attorney Regarding Your Medicaid Plan and Application

Before you file your application, sit down with a Medicaid attorney who can help review your assets, income, and see where you might be vulnerable. You may be able to protect some assets before you apply, and it is critical you know what rights you have and legal options to protect those assets. Failing to follow legal transfer rules could violate government regulations – something you do not want to toy around with when trying to get healthcare coverage from the government.

Talk with attorney Andrew M. Lamkin, P.C., today about your Medicaid application. He has helped countless seniors and their families apply for Medicaid, protect assets, and follow all laws so that they can unlock coverage for nursing home care. Schedule a free case evaluation now by calling 516-605-0625 or requesting an appointment online.

Is Probate Necessary If There Is a Trust?

Probate requires that property you own goes through the court before it can be distributed. When you create a trust, you no longer own the property because you transfer ownership into your trust. Therefore, probate is not necessary. If, however, you leave a piece of property out of the trust, your loved ones may have to continue through probate even if you created a trust for your other assets.

One of the primary reasons to create a trust is to avoid probate court. Trusts are surprisingly easy to create, especially if you work alongside a skilled estate planning attorney. While they do take a little setup time and some work on your end to move over your assets, once you are done, your family will no longer have to worry about going to probate court or worrying about spending countless fees on attorney and court costs to finalize the estate.

How Does a Trust Help Avoid Probate?

When you own property in your name, that property must go through probate court. The court verifies the validity of your will, the property amount, and makes sure that it goes to the proper party (per your will). The process can take anywhere from six weeks to six months, making loved ones wait to receive inheritances.

With a trust, you no longer own the property. While it is technically yours, the property is now owned by your trust and you are named the primary trustee. Now that you no longer personally own that property, probate court does not apply. From there, your trust automatically would transfer ownership to your beneficiaries, per your designation, upon your death. Also, a trust does not end when you pass away. Instead, it serves as a legacy, and it can continue on long after you pass away.

With your attorney’s help, you will name an administrative trustee. This party has the legal authority to step in on your behalf after death. They will administer your trust per any instructions you have left behind, and they will take control of the trust, assets, and any business interests you might have. They may also collect from retirement accounts, life insurance policies, and pay any outstanding debts using assets (including those from the trust) before distributing the rest to your beneficiaries.

When a Trust Does Not Help You Avoid Probate

The purpose of a trust is to make the process of resolving your estate easy and relatively cost-free for loved ones. However, it does not always prevent loved ones from enduring probate court, especially if your trust is not created correctly or you are missing assets.

When you form the revocable living trust, you must transfer ownership of the property into the name of the trust. Often, this is the biggest reason a family with a trust still goes through probate – because no one transferred the ownership. Also, any property you purchase after your trust is created must be moved into the trust or it will go through probate even if the remainder of your estate does not.

Just because you have a trust does not mean all new asset acquisitions go through it. Instead, you still must update the trust and physically transfer ownership over to it. Therefore, you should make it a habit to automatically transfer over any assets you purchase into your revocable trust as soon as you can. This may mean transferring assets on a monthly basis, depending on how often you acquire new assets.

Do You Really Need to Avoid Probate?

Probate is an in-depth process that can take weeks or months to complete. While it is in process, loved ones cannot receive their inheritance and they may have to spend estate funds to cover attorney’s fees, court costs, and more.

Just some of the stages your estate goes through if it does pass through probate include:

  • Your will is first filed with the local probate court and now becomes a matter of public record.
  • Your named executor will then inventory property and assets associated with the estate.
  • Your property is appraised by a third party to determine current value.
  • Your estate’s debts, including your final taxes due, are paid by the executor. Some assets may be sold in order to satisfy those debts.
  • The court finally validates the will.
  • All fees to the court, attorney, and the executor are paid.
  • Any remaining assets are distributed to the designated beneficiaries in the amounts (or close to) that were listed in the will itself.

A living trust bypasses these steps. Your assets are passed from one party to another from the trust, and the court does not require an appraisal or have to approve the passing of those assets.

Hire an Attorney to Help Your Estate Pass over Probate Court Entirely

The best way to avoid probate is to hire an attorney and have them create a trust for your loved ones. Trusts are not just for today; they serve as a living legacy. You can use the trust to support your loved ones for years after your death, and you are in more control of your assets and how they are handled.

Another benefit to using a trust is that your estate is not a matter of public record. Instead, the assets and beneficiaries who receive the assets from the estate are kept private.

To explore your options for setting up a trust, meet with an estate planning attorney like the Law Office of Andrew M. Lamkin, P.C. Attorney Lamkin has helped countless families just like yours create trusts that provide for them while they are alive and long after they pass. He can help you not only create your trust, but also make sure you have a well-balanced estate plan where no asset is overlooked – to ensure your family doesn’t go to probate court for missed assets.

To get started, schedule a free case evaluation by calling 516-605-0625 or request more information online.

Can You Just Write a Will and Get It Notarized?

Today we are in a do-it-yourself society.

You fix your plumbing. You perform your vehicle maintenance. You might even self-diagnose on the web versus visiting a doctor when you’re feeling unwell. While there are some things you could do yourself, legal paperwork is not one of them.

You might find yourself tempted to write your will and have it notarized – and assume that you’ve covered your ground. In reality, you may leave huge gaps in your asset protection and miss critical components of a solid estate plan, which puts you and your loved ones at risk.

Are Self-Made Wills Even Recognized by the Courts?

Yes, a self-made will is legal as long as you meet all of the state requirements at the time you draft it and if you have it notarized. The state requires two witnesses who are of legal age, yourself, and a notary present at the time it is notarized.

While legal, it doesn’t mean it is adequate.

The Real Problems with Self-Made Wills to Know

Whether you draft it from scratch yourself or you plan to use a do-it-yourself online service, you must know the issues with these self-made wills and how they affect not only your life, but the lives of loved ones if you were to pass away.

Assets Are Rarely Described Accurately (If at All)

When you create your will, you might not give the correct legal description for your assets or you may accidentally leave a few out. Likewise, you may reorganize assets, but forget to update your will addressing those changes. When you have beneficiaries assigned to non-existent assets, they will not receive any inheritance other than what was gifted to them – which may be nothing if you do not update your will.

If you do not list assets clearly, your executor may be unable to locate that asset or identify what it is. Not only does this open the door to a contest in court, but the probate court will have to decide what you may have meant in your will – meaning they will guess on your behalf.

Beneficiaries Are Not Identified Correctly

Another common error in self-made wills is that beneficiaries are not described clearly or within a group along with the date, such as saying “my grandchildren” as of a specific date. If you do not date it, then all grandchildren might apply. Likewise, if you were to leave assets to a charity but you do not provide the full, correct legal name, your executor may be unable to distribute assets to that charity.

You may also forget to list backup beneficiaries. Therefore, the court would decide using the most recent estate laws to determine how your assets will be distributed when a beneficiary is no longer alive.

Leaving Items to Pets

You might want to provide for a pet, but legally you cannot name that pet in your will and expect the law to allow it. Instead, you need to name a party who would handle your pet’s care, and that trusted party would then receive any assets you leave to use for their care. Some pet parents go as far as setting up a pet trust, which specifically addresses the nuances of leaving items to family pets after they pass away.

Putting Illegal Conditions on Distributions

You can put conditions in a will on how assets will be distributed, including how much a person will receive over time. However, this only works if you are clear and spell it out so that there is no room for interpretation or contest. Likewise, if your conditions are impractical or impossible to enforce, the court may dismiss them.

For example, demanding that a child lose weight before he or she can receive their inheritance is one that the court is unlikely to approve. This is because someone would have had to monitor that beneficiary and make sure they lost their weight before assets were distributed. This means paying an executor an outrageous amount of fees for an extended period, which may even drain estate funds entirely.

Ignoring End-of-Life Care and Heroic Measures

One of the most important parts of creating a will is also naming a party who will make financial and healthcare decisions on your behalf if you become too ill or incapacitated. Without this designation, the courts would first appoint a party to make those decisions, and the party they select may not be the one you would have chosen yourself.

Forgetting about Care Instructions for Minor Children

Legally, you cannot leave assets to a child under the age of 18. Therefore, you must appoint a guardian to care for your underage children and put them in control of those assets. Likewise, you need a backup guardian in case the guardian you select can no longer care for your young children at the time they are requested. Without a backup guardian, the court must appoint one for your minor children and it could be a party you would not have wanted to raise your children.

Forgetting Past Beneficiary Designations

Another critical error common in self-made wills is beneficiaries and failing to coordinate them with beneficiary designations. When you create retirement accounts, stocks, and even bank accounts, you often are told to designate a beneficiary. The party you name then receives anything in those accounts upon your death.

In your will, you may designate the same party, but in some cases, you could name a different party. While you intended for the person in your will to receive that asset, beneficiary designation forms trump wills; therefore, someone that you named initially when you opened the account could receive your assets.

Hiring an Estate Planning Attorney Offers the Best Protection

If you want an estate plan that truly thinks of everything, and if you want to avoid the common pitfalls of a DIY estate plan, speak with an attorney. An estate planning attorney knows the latest laws and how they will impact your will, and they can make sure that these common errors do not affect you and your loved ones when you need your will the most.

To get started, schedule a free consultation with the Law Office of Andrew M. Lamkin, P.C. today. You can schedule your appointment by calling 516-605-0625 or requesting more information online.