January 19, 2020










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.

What Assets Disqualify You for Medicaid?

Medicaid’s application process is extensive, and it includes a detailed review of your assets. Certain assets can disqualify you from this federal and state program. But with the right planning, you might still qualify if you know which assets are countable and which are not.

Medicaid and Medicare of often used synonymously, but these are different programs entirely.

While both pay for medical and health care-related costs, Medicare is age-based; not income or asset-based. The only time income plays a role in Medicare is determining your premiums for certain coverage options. Instead, you can receive Medicare benefits if you are over 65 years, or if you have a qualifying disability. Medicaid, on the other hand, works more like public assistance; therefore, the program scrutinizes everything from income to assets to financial resources to determine if you qualify.

You are required to provide documentation when you apply for Medicaid, and omitting assets not only will guarantee that you are excluded, but it could also constitute fraud.

The Medicaid income assessment is straightforward, and it includes any income like Social Security, retirement, or actual wages from a job. However, the asset portion of qualifying is more complicated, and sometimes you might think that an asset doesn’t count when it does – affecting your chances of approval.

What Assets Count for Medicaid?

Assets eligible for Medicaid consideration include:

  • Checking and Savings Accounts – Any checking or savings account with your name or your spouse’s name count as an asset. Therefore, having a high amount of funds in those accounts could disqualify you. This includes long-term savings accounts or investments like CDs.
  • Stocks and Bonds – Any investment accounts you have, including bonds, stocks, or funds, count toward your eligibility. These are considered assets that you can withdraw and pay for medical expenses and long-term care. Therefore, the state will assume you have enough funds to pay for your care.
  • Real Estate Other Than Your Primary Residence – Your primary residence does not count. But if you own secondary property such as a rental home, vacation property, or even a co-owned property like a timeshare, these count.
  • Extra Cars – Your primary vehicle will not count, but any additional cars and recreational vehicles do count as assets.
  • Life Insurance – The cash value of a life insurance policy also counts. If the amount exceeds $1,500, then any excess is considered an asset to your estate and will be considered in your application.
  • Cash – While you can possess some cash, too much may disqualify you. For example, if you have $50,000 in a checking account, it would most likely disqualify you unless you could prove those funds were dedicated to something specific.

What Assets Do Not Count for Medicaid?

Medicaid doesn’t count certain assets that go toward your living, and those not considered liquid.

Some assets that are not counted include:

  • Your Primary Residence – Luckily, your primary residence doesn’t count against you for Medicaid. Even if you own your home in full, it is your home and primary residence where you live 90% of the time. Therefore, you do not have to worry about it disqualifying you. There are limits to your home equity, however.
  • Personal Property – Any personal property you own, especially that inside your primary residence, does not count.
  • Life Insurance – Any life insurance with a face value under $1,500 does not count.
  • Burial Expense Funds – You can still set aside funds for burial and funeral expenses, up to $1,500, without it counting against you when you apply.

Home Equity

When Medicaid looks at your home, regardless of the value, it is exempt. However, it will affect whether you get payments for long-term care and nursing homes from Medicaid, especially if the equity of your home exceeds a specific threshold. The equity of your home, which is the fair market value minus what you owe, does affect Medicaid qualifications.

What about Income?

Any income you receive from pensions, retirement accounts, and Social Security will count in your application. You can, however, keep up to $800 per month of your income, along with any costs associated with healthcare premiums, if you qualify for Community Based Medicaid. Any extra income, referred to as spenddown, must be used on your healthcare before Medicaid pays for the excess.

Your Options for Managing Assets When Applying for Medicaid Programs

Because your assets do play a heavy role in determining eligibility for Medicaid programs, you may want to look for other ways to protect family assets rather than selling or disposing of them to qualify for the healthcare coverage you need.

One of the best options is a Pooled Income Trust. A Pooled Income Trust is a unique trust that allows you to become eligible for Medicaid programs while still preserving your assets. Not everyone requires this type of trust, but when your assets exceed the qualifications for Medicaid, you may want to use a Pooled Income Trust.

How It Works

Pooled Income Trusts are allowed by federal law. You protect your public benefits, but you also receive pooled funds for expenses. You can then use your Pooled Income Trust for multiple expenses, such as:

  • Living costs, including food, clothing, and shelter
  • Housing costs, including rent or utilities
  • Private nursing care
  • Assisted living care
  • Medical procedures not covered by your government insurance plan
  • Entertainment
  • Travel
  • Attorney fees

Under the current laws in New York, your monthly income excess must be spent down to qualify for Medicaid, which is where your trust comes in. When you deposit into the Pooled Income Trust, you are no longer subjected to the ordinary rules for extra income and now you can protect the income benefit without selling your assets.

Speak with an Estate Planning Attorney to See How You Can Plan for Long-Term Care and More

If you are worried about how you will afford long-term care or how you will preserve assets while using government insurance, then you need to meet with an estate planning attorney.

Andrew M. Lamkin, P.C., has helped countless clients just like you figure out how to manage their assets, create estate plans, and ensure they can still qualify for Medicaid without throwing away everything they have earned.

Schedule your free consultation to discuss your Medicaid planning by calling us, or you can request more information about estate planning online.

Do I Really Need to Include Social Media in an Estate Plan?

Consider how much information you keep on your social media profile before dismissing the idea of including it as part of your estate. Adding it to your estate plan could ensure that the right family member controls those photos, fond memories, and even videos that would be lost forever if no one inherits them.

If you are active on social media, including LinkedIn, Facebook, Twitter, or another social media website, what will happen to all of your digital assets on those sites if you were to pass away? Can anyone access your profiles to shut them down? What about download videos, photographs, or even status updates?

You might assume family members can email customer support, letting them know that you have passed and request they shut down your profile. Unfortunately, it doesn’t work that way. Not only will the company not shut down the profile, but your loved ones will have no access and no way to access your profiles. Likewise, the companies that do provide access to family members put a clock on it. In some cases, they give you only so many days or weeks to remove all the information before they automatically shut it down and everything is erased from their servers permanently.

Adding Social Media to Your Estate Plan Is Like Most Assets

You would be surprised to find out how easy it is to add digital assets, especially social media, into your estate plan. It works like other assets, which means you need to inventory them, name a beneficiary for those assets, make sure they have access, and then let them know how you wish for them to handle their inherited digital asset.

Start By Making a List of All Social Media Accounts

First, list all of your social media accounts, including those you are barely active on. If you do not wish to include one because of limited activity, consider shutting it down permanently now rather than leaving it out of your estate plan.

For those that are active and that you want a family member to inherit, write down the website address or social media name. Then, write down the username, password, and email associated with your account.

Social media accounts include:

  • Facebook
  • Twitter
  • LinkedIn
  • YouTube
  • Twitch
  • Instagram
  • Flickr

Name Your Beneficiary

You want to name someone who is internet savvy. Giving your digital assets to someone who has no familiarity with social media or how to use it just puts more work on their shoulders. Also, they may not know how to close out a profile or download the items on that profile. Therefore, having a family member inherit your profiles, who at least is social media savvy, is best.

Decide whom you want as the primary beneficiary of those accounts. Facebook recently added its legacy option, which allows you to name a successor – including another Facebook user. Make sure the legacy user is also the person you name in your estate plan.

Provide Your Instructions

Now you need to tell your beneficiary what they will do with the newly inherited social media profiles. Some options include:

  • Downloading and storing all images, videos, and memories. You may not wish for your profile to remain active, but before it is taken down, you want all memories removed from that site and saved elsewhere. Tell your beneficiary what you want them to do with the photos, videos, and other memories on your profile.
  • Create a legacy or “in memory of” page. Some family members ask that their page remain active, but change to an “in memory of” or legacy page. This allows friends and family members to go back, look at times they spent with you, and remain active with others who were part of your social media network.
  • Closing them down entirely. You may not want your profile to stay online. After all, leaving a profile up as a legacy page can increase the risk for fraud and identity theft (individuals are searching the internet for legacy social media profiles). Therefore, you can request that your beneficiary remove the pages entirely.

Do Not Forget Other Digital Assets

While you are adding your social media, do not forget the other digital assets you may have out there. These are treasures to family members, and sometimes they provide insight into your daily life that loved ones never even knew about.

Some other digital assets you should include in your estate plan are:

  • Online Photo Storage Sites
  • Online Document Storage Sites (like Box or Dropbox)
  • Your Email Accounts
  • Your Personal or Professional Blog
  • Ancestry Accounts and Website Profiles
  • Online Dating Profiles
  • Online Calendars and Booking Services
  • Memberships and Accounts Online

Speak with an Attorney about Adding Digital Assets to Your Estate Plan

If you already have an estate plan, creating an addition for your digital assets is simple. Meet with your estate planning attorney and let them know that you would like to include your digital assets. They may have a unique way for you to track passwords and information about those sites so that they can give them to your beneficiaries later on.

If you do not have an estate plan, now is the perfect time to start. In that estate plan, you can include your regular and digital assets. Digital assets, especially in today’s highly digitized world, are treasures to family members. They allow them to interact, see you, and even remember you years later.

Whether you have an existing plan or you would like to create a new estate plan, it is never too late or early to start. Meet with a local estate planning attorney that understands the value of digital assets just as much as physical ones. Andrew M. Lamkin, P.C., can help you with your estate planning needs.

Get started with a free consultation about your estate planning needs by calling us, or you can request more information by filling out our online contact form.

How Do You Obtain a Letter of Testamentary?

Getting a letter of testamentary is what you need to proceed in probate court. You will need to file a death certificate and a will with the county, then your official form requesting your letter.

As the executor of an estate, you must take care of all financial tasks before you can officially close out an estate and fulfill your duties. Just some of the major tasks you must tackle include paying off all debts from the estate, gathering assets, distributing assets as the will outlines, and notifying beneficiaries.

Before you can do any of these tasks, you need a letter of testamentary, which is a document you get from the probate court. It provides you with the proof that you are the executor for the estate, and it provides you with the authority you need to do your tasks as the executor.

What Is a Letter of Administration – Do I Need That, Too?

Some probate courts will refer to these letters as the letter of administration. This is a letter that is issued by probate court when an official executor is not named in the will, or there is no will and the estate is intestacy. In this case, the court decides who is qualified to handle the executor duties and will issue a letter of administration to that party.

Both documents give the executor the power to handle all estate matters, but the administration letter only allows the executor to distribute assets that abide by the laws of intestacy, which are different in New York than in other states.

How Do You Get a Letter of Testamentary?

If you are named as the executor and there is a will, then you will obtain the testamentary version of the letter. To do so, you will go to the county probate court.

You need a copy of the will that names you as the executor, a copy of the death certificate, and the court required letters of testamentary forms along with your application for the letter. You may also need to bring along identifying information to prove you are, in fact, the person named in that will.

After you have completed the application, you will file it with the court and wait for your hearing date. The hearing is usually brief, and the probate court judge will review the documents, verify that you are the executor, and also make sure you can carry out your executor duties. Usually, you must be mentally competent, which is the only requirement.

The court then issues you the letter of testamentary, and you will want to obtain certified copies. Most financial institutions will require a certified copy of the letter to keep for their records. Therefore, get one for each financial institution where you will need to remove or access assets.

Letters of Testamentary: Can They Expire?

These letters give you the legal authority to manage a person’s financial assets. Therefore, the court will require that you do so promptly and in accordance with the will. You must administer all financial tasks promptly, but the letters themselves do not expire. However, if you purposely fail to perform your fiduciary duty or the courts feel that you are taking longer than necessary to handle the deceased’s estate, you may have your letter revoked.

Once You Have the Letter, What Should You Do Next?

Now that you have the letter, you must follow through with your duties. Just some of those include:

Locating All Assets

The estate plan should have a list of assets, but it is your job to go to each financial institution, using your letter of testamentary, so that you can access those assets. You may need to have assets valuated if it has been too long.

Finding All Debts Due

Before you can distribute assets, you will need to use any funds from bank accounts to pay any outstanding debts first. You may also have to sell any assets or sell stocks so that you can satisfy those debts as well.

File Taxes

You are required to file the final tax return for the estate as well. And if you are working with an estate attorney, they can help you with this task.

Distribute Assets

The will should discuss how the assets will be distributed and which beneficiaries will receive what physical assets or amount of funds. You are required to follow the will, but there may be instances where you have to use your own judgment if the will is not specific. Other times, someone may leave requests such as leaving 25% of their estate to one child. After you have satisfied debts, then you would determine what is 25% of that remaining estate value.

It Is Best to Hire an Attorney When Administering an Estate

Trying to work your way through the intricacies of probate court, let alone your duties administering an estate, can be daunting. If you are unsure of where to start, consider hiring an estate attorney to assist you.

An attorney can help you with your executor duties, including filing the correct forms, working on estate taxes, and ensuring all assets are distributed correctly.

If you are creating an estate plan, consider setting aside funds so that you can pay for an attorney to help assist with the administration portion of your estate. Having an attorney is incredibly valuable. They will help you with each step and ensure you are following all state laws regarding how you probate an estate.

To get started, speak with an estate planning attorney here in New York by contacting the Law Office of Andrew M. Lamkin, P.C. You can schedule a free, no obligation case evaluation now by calling the office. You can also request more information about assistance with your executor duties by completing an online contact form.

How Do I Protect My Assets in a Second Marriage?

Whether you are getting married now or you are considering it, you must set up protections for your assets in your second marriage. Otherwise, you could have assets go to the wrong family members, which only creates more issues for the loved ones you leave behind.

First of all, even if you have not officially tied the knot, you need to speak with an estate planning attorney. Also, you do not need a previous estate plan in place. And if you do not have one, now is the perfect time to start one – especially as you enter into a second marriage.

As you plan out your nuptials, here are a few things you need to do as part of your due diligence:

Review Past Estate Plans with Previous Spouses (If Any)

If you do have a past estate plan with a previous spouse, then you must review your wills, trusts, and any beneficiary designations (such as those tied to your insurance or retirement accounts).  

Now, you must also review any divorce and child custody agreements you have and how they play a role in your past estate plan. Some divorce plans may have obligations where you must keep an ex-spouse as a beneficiary or give them a certain percentage of your estate (even if you were to remarry). If that is the case, you must consider it when creating a new plan involving your new spouse.

Also, you may not be able to update all beneficiary designations if you already have a previous spouse locked in from a divorce agreement.

Start Getting the Right Documents in Order

Next, you need to assess your long-term plans. Then, you will want to get a few documents in order to protect your assets in your second marriage and provide for your new spouse (and any children you may have) if you were to pass away.

Create a Prenuptial Agreement

You may want to consider having a prenuptial agreement in place. Not only will this protect your interests, but any assets that your spouse brings into the marriage can also have protections, too. You will want to discuss these financial issues ahead of time and create a plan with your spouse that you both can agree on.

Keep Your Assets before Marriage Separate

You both are likely to have some assets, and you will bring those into your marriage. Make sure there is a division between your assets and their assets before marriage. You can do so by keeping accounts separate for those pre-marital assets. Also, keep records of any assets that you had before the new marriage and any that may apply to a past marriage.

Set Up a Trust for Your Assets

You can also create a trust so that you can protect premarital assets from the second marriage. This also can allow you to protect any assets for children from a prior marriage who would benefit fully from those assets you had in your first marriage.

Asset protection trusts should be done with an estate planning attorney’s help, and you will want to make sure creditor and spousal protections are in place. You can also set up the trust in your child’s name and have them be the beneficiary of those assets.

Revise Your Will

Now is when you will need to look at your existing will and make changes. If your will currently lists your first spouse, you need to change it over to your new spouse’s name. You will also want to include any other beneficiaries, including children that you may have as part of your second marriage. Likewise, you will want to rename those who can make financial and healthcare decisions on your behalf if you are to become incapacitated.

Make sure you revisit your will every year after the new wedding, as you will want to make sure any new assets, children, or changes are reflected in your updated will.

Do Not Forget about Retirement Accounts

You will want to make sure that you change any beneficiary designations on your retirement accounts to either a child whom you want to inherit the funds or your new spouse. Most likely, your old spouse is named as the beneficiary and these designations outrank any will or estate plan you have in place. Therefore, you must go and update all retirement, investment, and even bank accounts where you have a beneficiary designation named specifically. Otherwise, the courts will honor the name that is on the document rather than the party in your estate plan.

Review Your Social Security Benefits

You may have social security benefits from an ex-spouse’s work record, which will change upon remarriage. Therefore, you need an attorney to review these and see how your new marriage may impact the benefits.

Think of the Tax Consequences

Estate planning with a second or even third marriage will require you to balance your assets and the tax consequences of having those assets. You may want to look to see if you have any gift or estate tax exclusions that you can use, and you will need to consult with an attorney if you have a high-value estate subject to estate taxes.

Every state is different; therefore, you want an estate attorney who understands how estate taxes will apply here in New York, including any assets you may have out of the state.

Do You Need an Attorney?

Yes, you should always consider hiring an attorney when it comes to a second marriage and protecting your assets. Second marriages make estate planning complicated, and if you have a divorce agreement from a previous marriage, it could complicate things further. Having an experienced, trained eye review your past agreements and make sure that everything is up to par with the latest legal requirements is critical.

Speak with an estate planning attorney to help protect your assets for your second marriage by contacting the Law Office of Andrew M. Lamkin, P.C., today. You can call our office or contact us online for more information.

When Will My Case Finish Probate?

Probate’s length depends on the complexity of the case and whether you have anyone contesting. However, you can expect anywhere from six months to up to two years.

Likewise, you could have such a straightforward case that you are done, and the case is completed in two months – however, that is rare.

One of the first questions our clients ask us is how long they should expect probate to take. While you want it quick, and preferably painless, it is all based on the executor, size of the estate, creditors, and a few other factors.

Factors That Can Affect Your Probate Case Timeline

To help you better estimate and understand why some cases take longer than others, we need to discuss the three primary items: executor naming, settling, and closing.

First, the Executor Must Take over the Estate

The first step of probate is for an executor to take over and get started on their administrative duties. This takes anywhere from two to six months, although, we usually see this only last three months.

The letters of testamentary take time for an executor to receive, and then they must receive their court appointment. Time extends in this phase of probate when the information is not available, or court documents were not completed and submitted to the court on time for processing. Processing is a four to eight-week process alone. Therefore, when an executor is ill-prepared, it does take longer.

Once these letters are approved, then the executor is named official and can start taking over other tasks.

A few ways to speed this up would be to ensure all family members sign and have documents notarized quickly. Unfortunately, not all loved ones are inclined to help or even do so promptly. Therefore, most of the delays during this stage come from finding family members and getting them to sign necessary documents.

Likewise, court delays can happen – especially if the court is overrun with cases that month. The clerk may also go on vacation, or they have a docket too full to get to your paperwork right away. If your paperwork is not processed, you should follow up with it and see if you can expedite it or if there is a hold that you need to address.

Third Party Hearings

Some times, a third party hearing is required, such as a public administrator, to look over the estate. When a third party gets involved and the court appoints them, it can dramatically delay your probate case.

Second, the Estate Must Settle

Now, you are onto the second phase. This portion can take anywhere from seven months to as much as three years.

The settlement is by far the most complicated process of an estate. The executor is now administrating, and that means that they will collect all estate assets listed in the will, organize outstanding debts, pay any debts, file final tax returns, and possibly value any assets of the estate to ensure they are accurate.

Potential Hold-Ups at This Phase

You have a few reasons that this phase can take longer than you would expect, including:

  • Institutions being Slow to Respond: Financial institutions are not quick to respond to requests for estate documents, including banks, lenders, and insurance companies. Therefore, the paperwork and lead times do vary.
  • Asset Locations and Issues: Some assets are difficult to share or place a value on them, including shares for private companies or real estate that currently has a tenant refusing to move out so that you can sell the home for liquidation.
  • Taxes: Estate taxes are complicated, and when a return is required, the process takes longer for the executor to compile the information and work with an accountant and attorney to get it all done.

Closing the Estate – the Final Phase

Now you are ready to close out the estate. But this is multiple steps in a single phase, and not something that goes quickly. In fact, it can take just 30 days or 12 months.

More documents are required in the closing phase, including all court forms that are distributed to beneficiaries to ensure they are given all necessary information.

The heirs must review any financial reports, and then they have a chance to contest the information. If a contest occurs, this process will take longer because it will require a court hearing just to address anything the heir contested.

Also, if anyone contests the validity of the will itself, you will notice a considerable delay. Not only do these take time, but they also can quickly drain resources tied to the estate – which may affect what beneficiaries receive in the end.

Speed Up the Process or Skip It Entirely

If you are creating a will but you want to save your family the hassles of probate, then you may consider a trust instead. Trusts allow you and your loved ones to bypass the probate phase, and you can distribute assets through the trust without having to wait years to complete the process.

Likewise, if you want to ensure your loved ones have a smooth probate process (without using a trust), then work with a qualified estate attorney who knows the New York probate lead times, common issues, and can draft a will that reduces the likelihood of errors/contests and other hold-ups.

If you are an executor and you find yourself facing multiple contests, beneficiaries unwilling to provide the information you need, and other stalls, you may want an attorney to assist you.

Andrew M. Lamkin, P.C., has helped countless families create their estate plan, including setting up trusts, drafting wills that follow all laws and leave out any vague statements (a common cause for contests), and helping executors successfully close out an estate.

To explore your options, speak with him today for a free case evaluation or request more information online about his estate planning, wills, trusts, and probate services.

When Does Medicare Cover Nursing Home Costs?

When and how long Medicare covers nursing home costs will vary, but understanding how your benefits work and when they kick in is critical when you require nursing home care.

Most seniors will reach a point where they need nursing home or long-term care. Sometimes, it is only after an illness or accident, while other times the situation is permanent. If you are receiving Medicare or you are eligible to apply, you may assume that your costs are 100 percent covered with Medicare benefits.

This assumption, unfortunately, is incorrect.

Medicare does not cover a lot of traditional healthcare costs, and nursing homes are one of the costs.

However, when your nursing home or skilled nursing facility care is medically necessary, then you may receive some coverage.

When Does Medicare Cover Nursing Home Stays for Plainview Residents?

Medicare’s coverage of a long-term nursing facility is incredibly limited. Under the traditional Medicare plan, you will only receive limited care coverage for skilled nursing home facilities. The care only applies while it is a medical necessity. And to prove it is medically necessary, your physician would need to fill out the appropriate forms indicating such.

Up to 100 Days of Skilled Nursing Care with Medicare

Medicare Part A provides up to 100 days of skilled nursing care after an illness or injury. However, the requirements for utilizing this coverage are incredibly strict, including:

  1. Enter a Nursing Home within 30 Days of a Hospital Admission – For Medicare coverage, you must have recently been in the hospital and your admission into the nursing home cannot be more than 30 days after the admission. Likewise, your hospitalization must last a minimum of three days.
  2. Similar Care as the Hospital – The care you receive at the nursing home must be identical to the care you would have received if you were staying in the hospital; therefore, it must be required to treat a medical condition.
  3. Skilled Nursing Care Is Required – You must need an experienced level of nursing care, and the facility must have skilled registered nurses that treat you in-house. A physician must have placed orders, and a physician must supervise you during your treatment period. Likewise, a licensed practical nurse or registered nurse must carry out those orders and do so daily to qualify. Not many nursing homes have this level of skilled nursing care.

Once the nursing home reports to Medicare that you no longer need the skilled nursing home level of care, Medicare will stop payments.

What Other Options Do You Have to Pay for Nursing Home Coverage?

Nursing home costs are on the rise, and while you might not have Medicare to pay for your nursing home stay, you are not without options either.

Long-term care insurance is another option, but it does have a hefty premium. That being said, it will make up for the costs of nursing home stays, which will exceed the premium for 24-7 nursing home care.

Medicaid Is Another Option

One option that you might not have thought about is Medicaid. Medicaid works as long as you do not have many assets, and your income is relatively low (to none, if you are retired). Your Social Security income and pension income does fall under consideration when applying for Medicaid coverage.

Under a Medicaid plan, you can receive coverage for a long-term nursing home care or assisted living, but the rules depend on multiple factors. Federal law requires that all states carry a Medicaid program, but each state has rules that they use to govern who qualifies and what they pay for using these Medicaid benefits.

Medicaid in New York will pay for nursing homes and assisted living care, which is a relief for those facing the outrageous costs of nursing homes today. However, you must meet the income limits and be either 65 years and older, disabled, or blind to receive Medicaid coverage for your nursing home.

Also, your income cannot exceed the state threshold, which was $842 or less for singles and $1,233 per month for couples as of 2018.

How an Estate Planning Attorney Can Help

Medicaid is a joint run program by the federal government and the state of New York. To qualify for nursing home care, you first must qualify for Medicaid coverage.

Certain items that the Department of Social Services considers when qualifying applicants for Medicaid coverage in New York include:

  • Need of Care: Do you have a financial need and medical necessity that qualifies you for the level of care you are seeking?
  • Your Income: Naturally, your income, as well as your spouse’s income (when applicable) is considered. You cannot exceed the state’s maximum threshold. All income sources are considered in New York, including your distributions from retirement funds, pension payments, investments, rental properties, and Social Security benefits.
  • Your Resources: You might not have a large amount of money as income, but you may have considerable assets. When your assets are high enough, the state will deny your Medicaid application. Assets include everything from the value of your home to investments to insurance plans.

While the process of qualifying for Medicaid is complicated, an estate planning attorney in the state can help you by going over your options, assessing your eligibility, and working to determine how to protect your assets so that you can qualify for the care you need without having to liquidate your family’s estate in the process.

Speak with an Estate Planning Attorney Today

If you are worried about paying for nursing home expenses in the future, or if you would like to have a professional help you draft an estate plan that protects you when the time for nursing home care comes around, speak with Andrew M. Lamkin, P.C., today.

He can assist you with protecting your assets, looking over your long-term care options, and ensuring you qualify for Medicaid later.

Schedule a free case consultation now by calling us or requesting more information online.