November 22, 2019










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.

What Happens When an Estate Goes to Probate?

Probate is a legal process where a person’s estate is administered and officially closed out. All real property owned by the deceased is assessed by the court and then distributed to interested parties. While it sounds simple, probate is much more than reviewing a person’s assets and handing them over to beneficiaries. The process can take several months – and sometimes longer when complications arise.

When Is Probate Required for New York Estates?

Every state has rules in place for when and why an estate goes to probate. Estates without a will and those with only a Last Will and Testament typically go through probate. Probate court is necessary to pay all final debts, distribute assets to beneficiaries, and make sure a loved one’s wishes are carried out.

What Are the Steps of Probate and What Happens to the Assets?

Probate is complicated, and it involves multiple stages. Also, there are strict deadlines in the probate process, and missing just one can delay a case even further.

Authentication of the Last Will and Testament

If a will was created, then state law requires that the party in possession of that will submit it to the probate court as quickly as possible following the death. Typically, the will is submitted with an application to open the probate process, and a certified copy of the death certificate must be submitted with the documents, too.

The judge will review and decide if the will is valid, which requires a single court hearing. The notice of that hearing must be given to all named beneficiaries in the will and any heirs. The hearing also allows for family members to express concerns over the will’s validity and object to anything in the will. Also, it enables family members to look for more current versions of a will and ensure that the probate court is only using the most recently drafted version.

During this hearing, if the judge decides the will is valid, they will appoint an executor. The family members can object to the appointment at the hearing, but must provide valid reasoning for their objection.

If the will does not have any self-proving affidavits attached, then the judge may require witness testimony or a sworn statement from witnesses about the will’s validity, such as two adults who witnessed the deceased signed the will.

Appointing the Executor

The judge appoints the executor named in the will. If none are named or the one named is no longer available, then the court will pick a different administrator for the role. Usually, the court will appoint next of kin if no one is named or the previously named executor cannot fulfil their role. No one is obligated to serve. Therefore, if the court selects someone but they decline, the court must choose another suitable executor.

Once appointed, the executor receives their “letters of testamentary,” which give them permission to access assets and make transactions on behalf of the estate.

Locating Assets for the Estate

The executor must then find all assets and take them into possession to protect them during the process. Sometimes it takes time, especially if the deceased does not list all assets in their will correctly.

They must research assets, policies, tax returns, and other documentation to find all associated assets.

Then, the executor must make sure property taxes are paid, insurance policies kept current, and homes paid for until probate completes.

Determining Asset Values

Once all assets are accounted for, the executor then does a date of death value. This determines the value of the assets at the time of the death and is often done through appraisals or account statements. The executor then submits their written report with all assets and their value to the court.

Identifying and Informing Creditors of the Death

Next, the executor must locate and notify all creditors of the death, and they are also required to publish a death notification in the local newspaper. Creditors only have so long to make their claims against the estate before they are cut off.

Once creditors are found, the executor must then pay all debts using assets and funds from the estate – this includes homes, medical bills, and any outstanding payments owed.

Taxes

The executor will prepare and file the final tax return for the deceased’s estate and pay any taxes due at the time they file. Some assets might require liquidation to pay for these costs.

Distributing Assets to Beneficiaries

Once all creditors are paid, the executor then distributes the remaining assets to beneficiaries by the requests in the will. Usually, the executor must have the court’s approval before they start distribution.

While distributing assets, the executor must keep a running transaction log so that all beneficiaries can review it.

Would You Prefer to Avoid Probate?

As you can see, the process of probate requires numerous steps, and each of these takes time. On average, cases take six months to a year to finish probate – which means your loved ones may wait as long as 12 months to receive their inheritance.

Likewise, your estate’s information becomes public record.

If you prefer to keep your family’s inheritances private and expedite the process, you can avoid probate with a trust. A trust allows you to move all assets under the trust’s ownership, and upon your death, your trust’s assets are distributed based on guidelines you have provided in the trust documents. With a trust, your family does not endure the costs or hassles of probate court and you still control who receives what from your assets.

To explore whether a trust is the right option for you or to get assistance with probate, contact a local attorney with years of experience in estate planning like Andrew M. Lamkin. Schedule a free consultation today with the Law Office of Andrew M. Lamkin, P.C., at 516-605-0625 or request more information online.

What Is the Difference between a Will and Estate Planning?

A will might be part of an estate plan, but it is not estate planning. All too often these terms are used synonymously, but in reality, they are quite different from one another. A will is a single drafted legal document, while estate planning dives deeper with multiple documents to protect your estate and your loved ones.

Wills and estate planning do seem interchangeable because they start the same, but once you get into the core functions of these processes, you quickly see how different they are from one another. A will and an estate plan are meant to protect your family and give relatives instructions on how your assets get distributed – but from there the differences begin. Estate plans dive deeper, focusing on your wishes regarding your health, finances, and even protect you and your assets while you are still alive – something a will cannot do.

It is best to meet with an estate planning attorney and see if a will is enough for your estate. In most cases, a will only scratch the surface. And if you think that you are completely set with only a will, you may leave yourself, your loved ones, and even your legacy in a bad position.

What Is a Will and What Does It Do?

A will, in comparison to estate planning, is relatively simple. Your will, officially known as the Last Will, dictates guardianship for minor children, who can take over your business, and what assets go to what beneficiaries.

In your will, you appoint an executor. Executors are responsible for handling all instructions in your will, locating assets, and distributing them. The executor also finalizes your estate, including paying any remaining debts on the estate, selling assets to handle those debts, and filing the final tax return.

A will does prevent family fights over which assets belong to which loved one, and it gives clear instructions for how to handle your property. It also makes it easier for loved ones to make those more difficult legal decisions as your wishes are outlined in the will itself.

Also, having a will saves your loved ones financially. Without a will, your estate must first go to probate court where a trustee is appointed. Family disputes may arise without a valid will in place, which can take funds away from the estate as well.

While the protections are limited, it is still best to have a will as a bare minimum.

What Is an Estate Plan, and What Does It Do?

An estate plan is much more in-depth than a will. It is an intensive process that can cost a lot more than a will, but it saves more in the long run. Your estate plan does include a will as well as various other legal documents that help protect your loved ones and assets upon your death. Also, an estate plan protects you while you are still alive but unable to manage your affairs.

The Addition of a Living Will

One of the key components of an estate plan is your living will. A living will is what protects you when you are still alive, but you are incapacitated and unable to make decisions on your behalf. With a living will, you pick a party who would be responsible for making medical decisions when you are incapacitated, including options for life-saving treatments, end-of-life care, extraordinary measures, and managing payments for your medical costs.

Having a living will clearly outline what you do and do not want if you become incapacitated, severely ill, or injured. Likewise, it appoints a single party (with an authorized backup in case your primary is unavailable) to carry out your wishes outlined in the living will. This saves your family frustration, time, and money by not fighting over who should make decisions for you while you are unable to do so.

The Addition of a Financial Power of Attorney

Another component added into an estate plan that you cannot do with an ordinary will is your financial power of attorney. Like your living will, your power of attorney gives a single party legal permission to make all financial choices on your behalf. They can perform financial transactions in your name and make business and other financial decisions based on what you have outlined in your power of attorney. You can place restrictions on which accounts your party has access to and what they can do with your assets and funds. Of course, appointing someone who is financially responsible is best – as they will have control over your assets.

Picking someone for your power of attorney is crucial. It protects your assets and keeps loved ones from experiencing any disruption in their financial stability while you are incapacitated.

Creating Beneficiary Designations

Another document you can use to protect your assets is beneficiary designations. These work outside of a trust, will, and other documents. Instead, they are directly associated with a specific account type (e.g., life insurance policies, bank accounts, or retirement accounts). On these accounts, you will fill out a form that lists your designated beneficiary, and these documents hold up well in court – ensuring no one disputes who receives your account funds or life insurance.

Extra Privacy with a Trust

Estates with only a will go through probate. Probate includes public records. This means your entire estate is something anyone can look up easily. If you decide to go with a trust, you place your assets in the trust, manage that trust, and appoint someone to administer it upon your death. Trusts skip over probate, and they keep your estate information secret.

Which Is Right for You? Meet with an Estate Planning Attorney

If you are not sure whether an estate plan or just a will is right for your family and assets, meet with an estate planning attorney to go over your options in detail.

Attorney Andrew M. Lamkin, P.C., can help you decide which method offers your family the security and protection they need long after you are gone. Get started with a free case evaluation by calling our office at 516-605-0625 or requesting more information online.

What Is Digital Estate Planning?

We live in the digital era. Most of your assets are online, including your bank accounts, social media, and personal data. If you think that you do not need digital estate planning, then you may want to consider just how much of your life and assets are online and stored in computers – not in physical form.

Digital estate planning looks at all of your digital property, makes arrangements for those items, and ensures that your property is handled the way you wish upon your death.

Do I Need a Digital Estate Plan?

In the past, estate plans consisted of a will, trust, power of attorney, and your life insurance policy. These were all documents that discussed how you wanted your physical assets and financial accounts handled – and they were often documented in paper format, too. You would collect them into a folder and put one in a safe deposit box, leave one with your executor, and then give the other to your attorney.

Typically, the items not included in your traditional estate plan would be identified and assessed by the court.

Today, records are not even in paper format. Instead, they have gone digital. Another trend that has gone digital? Assets. You might be surprised at how many of your assets are no longer physical but are now digital. From your financial records and accounts to social media to files stored in the cloud, if you do not make protections for these unseen assets, they might not be cared for properly.

How Do You Start Digital Estate Planning?

The first thing you should do is create an inventory of your online digital assets, which can be done by:

  • Locating all digital assets and accounts online.
  • Writing down access information, including user name, password, email associated with the account, and other information necessary to access them.
  • Determine what financial value applies to your assets and if they will need to go into a trust or through probate court.
  • Distribute and transfer any assets to beneficiaries that you are ready to give now.

What Digital Assets Should You Include?

Basically, if it is online or stored on a computer, it is a digital asset. Now, whether you need to give it to someone or not is up to you. Some digital assets you don’t need, while others you may want to hand down to someone in your family who could benefit from them.

Some common digital assets you may want to include in your plan are:

  • Email accounts, including private or business email accounts where important information is stored and your loved ones may need access to.
  • Computers and any hardware associated with those computers are digital assets you may want to pass down. Do not forget about external hard-drives, USB flash drives, and other devices.
  • Digital cameras and digital recorders are also digital assets that may have family moments captured that you can pass down to a loved one.
  • Data you store online in the cloud, including any document storage, photo storage, and password keeper websites you have.
  • Domain names that you have registered, including blogs and websites – even if you do not actively use them.
  • Copyrighted materials, trademarks, and any codes you have written down.
  • Social media accounts, including Facebook, LinkedIn, Twitter, and Pinterest.
  • Shopping accounts you have online, such as eBay or Amazon.
  • Video gaming accounts you have online, including those tied to a credit card or bank account.

Deciding What to Do with Your Digital Assets

Now that you think of all the digital assets you own, you may feel overwhelmed at piecing them out among family and friends. It is best that you give digital assets to someone who is tech-savvy or have an administrator who is tech savvy and can help beneficiaries access the information on those accounts.

Then, it would help if you decide how you want the beneficiaries of your digital assets to handle them. Would you like your social media accounts set up as a legacy, which means people can use it as a memorial? Perhaps you want all social media accounts closed down – but what about any photos and memories stored on there? Will you have someone download them to keep or to share them with family members?

Take your time and go through each asset. Ask yourself not only who will receive it, but what you want them to do with that information once they have it. With a solid game plan, you can distribute digital assets into the right hands and hopefully give your loved ones something to remember you by forever.

Create an Estate Plan That Addresses Digital and Physical Assets

While you sit down with your estate planning attorney to create your wish list for your physical assets, make sure you include those digital assets discussed here. The Law Office of Andrew M. Lamkin, P.C., can assist you with your estate planning. Whether you have just a handful of digital assets or hundreds, he can help you create a solid estate plan that protects both physical and digital assets alike. He can also help you with beneficiary designations on those accounts, ensuring that you give enough information to each party so that they can access the accounts and do what you wish them to do with it.

Even if you have an existing estate plan, now is the perfect time to go back and add in your digital assets. While doing so, make sure you update your will or trust document to include anything new you might have added at the start of the year.

When you are ready to create your first estate plan or you would like to update an existing one that includes your digital assets, contact the Law Office of Andrew M. Lamkin, P.C., today. You can book a free, no-obligation case evaluation at 516-605-0625 or request more information online about digital asset planning.

What Is Medicare Planning?

You plan for retirement, you plan for significant expenses, but what about Medicare planning? Most individuals under the age of 65 do not think of Medicare until it is too late. Ideally, you want to start planning for Medicare benefits long before you need them. Doing so can ensure you are not only approved but have access to the benefits you need quickly when you need them.

Medicare Planning Is Critical for Your Financial and Health Well-Being

One of the more significant decisions you will make while you near retirement is regarding your Medicare plans. You want to access all of the benefits and supplement options you can. Otherwise you will be paying out of your retirement fund for medical costs. Medicare planning means taking time to sit down with an estate planning attorney to look over your options and prepare for those unexpected costs.

What Is Medicare and Do I Need It?

Medicare is a government health insurance program managed by the federal government. When you reach age 65 or older, you are eligible for Medicare insurance benefits (some with qualifying disabilities or end-stage renal disease can receive Medicare before age 65).

Medicare has multiple parts, and when you go into a planning meeting with an attorney, they will go over each and help you understand which ones you’ll need for your healthcare in the future.

  • Part A: Part A is your hospital insurance plan, but it only covers admission into a hospital or skilled nursing care facility. You do not have a premium for this plan.
  • Part B: Part B is your actual medical insurance, which handles doctor’s office visits, laboratory tests, outpatient procedures, and more. You do have a monthly premium for this portion.
  • Part D: Part D is optional but highly recommended as it covers your prescription drug costs, and you do have a premium for this plan.

Why Medicare Planning Is an Important Step in Retirement

Healthcare is one of the most overlooked expenses when people plan for retirement. They think of their health situation right now rather than the likelihood that it will decline during their retirement. Medicare costs and the benefits you plan to use are critical parts of your retirement plan. In fact, they should be part of your estate plan.

When you start thinking about your future, your estate plan is one of those steps you are already taking to protect yourself and your loved ones. While estate plans are often thought of as a component for after death, they do protect you while you are still alive.

In fact, you can set up a trust today that will help you now and into the future when you hit retirement. Likewise, that trust is there to provide for your loved ones if you were to pass away.

Does My Income Affect Medicare?

Medicare is not the same as Medicaid. While Medicaid is asset and income-based, your Medicare benefits only require that you have a qualifying disability or that you are over the age of 65.

Creating Durable Powers of Attorney

While you are doing Medicare and retirement planning, one critical step to take is your durable powers of attorney. You could designate a friend or family member to make all legal and medical decisions on your behalf if you were to become incapacitated. They can also access your Medicare benefits so that you can use them while you receive medical treatment, and they can pay for your premiums to keep your Medicare coverage alive as well.

Make sure you pick a person that you can trust to handle all financial and healthcare-related decisions on your behalf. You will want someone who can think through critically, honor any wishes you might have about life-saving care, and who is responsible enough to handle your finances while you are unable to do so yourself.

Setting Up a Trust

You can create a trust to protect your assets while you perform retirement and Medicare planning with an attorney. A trust puts your assets into a single account and can include everything from bank accounts to property and even your life insurance policy. You are in charge of your trust’s assets while you are alive, including the ability to move them in and out of the trust, and use the assets in your trust for your living expenses. Once you pass away, the beneficiaries you name in the trust will receive their distributions per your allotment request. One benefit to setting up a trust is that, if you do pass away, your loved ones can skip the hassle, cost, and time consumption of going through probate court as well.

Do You Need an Attorney for Medicare Planning?

While you do not need a lawyer to plan for Medicare, you do need one who can help establish your estate plan, make your durable powers of attorney, and create a trust. Even if you do not plan to create a trust, you need a will drafted that will tell loved ones who inherits what and your wishes for burial.

Regardless, meeting with an attorney is beneficial if you need to plan for retirement and determine how you will care for your loved ones. One of the biggest advantages is that you can make sure you set aside funds in a trust to pay for medical costs not covered by Medicare, such as nursing home care. While you are covered for skilled nursing facilities and hospitalizations, your Medicare benefits will not cover long-term nursing home or in-home nursing home care.

By planning ahead, you can work your assets so that you will qualify for Medicaid, which helps pay for additional care as you get older.

To explore your options and make sure you and your family are protected, schedule a free case evaluation with the Law Office of Andrew M. Lamkin today. You can schedule your appointment at 516-605-0625 or request more information online about our estate planning and retirement planning options.