January 19, 2020










How To Successfully Plan For Old Age

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

Finances

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

Housing

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

Medical Care

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

Funeral Planning

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

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

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

Read More at :
http://money.usnews.com/money/blogs/the-best-life/2012/11/26/dont-ignore-these-old-age-needs
http://www.cmpcc.org/planning-age/

How to Help Beneficiaries Avoid Squandering Their Inheritance

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

Testators Should Issue the Money in Payments

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

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

Testators Can Disinherit a Child

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

Testators Can Put Stipulations on the Money

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

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

Need More Advice on Protecting the Inheritance of Your Beneficiaries?

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

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

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

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

Common Property or Common Law

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

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

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

Children and Inheritance

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

Want to Know More about Inheritance Law?

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

Read More:
http://www.nolo.com/legal-encyclopedia/inheritance-rights-29607.html
http://estate.findlaw.com/wills/inheritance-law-and-your-rights.html

What is Elderly Guardianship and When is it Necessary

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

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

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

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

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

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

Resources:
http://www.caring.com/articles/adult-guardianship
http://www.guardianship.org/reports/Guardianship_of_the_Elderly.pdf
http://www.agingcare.com/Articles/how-to-get-guardianship-of-elderly-parents-140693.htm

What is a Guardian Responsible For?

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

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

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

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

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

Sources:
http://wills.about.com/od/planningfordisability/tp/responsibilities.htm
http://www.courts.ca.gov/1211.htm

What a Will Can and Can’t Do

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

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

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

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

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

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

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

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

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

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

1. Meet with an Attorney

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

2. Discuss It

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

3. Grouping

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

4. Consistent Updates

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

5. In Terrorem

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

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

Everything You Wanted to Know About Special Needs Trusts

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

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

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

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

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

More here:
http://www.nsnn.com/frequently.htm
http://www.disabilityrightswa.org/special-needs-trusts

5 Things You Might Not Know about a Will

Most people know that a will is a written document providing the last wishes of a person. It will detail how the person’s property will be given to his or her heirs. However, there are things many do not know about how a will is created or how it is used.

1. If a Person Dies Without a Will, Property Does Not Go to the State

Every state has laws detailing where property goes if a person dies without a will. These are called laws of intestate succession. Normally, property will first go to the spouse or children. If none exists, it will go to grandchildren, then parents, brothers and sisters, aunts or uncles and cousins.

If none of these relatives are alive, it is only then that property will go to the state. However, a will is still important because a person can identify exactly to whom he or she wants personal property to be transferred. It is also important if the person has minor children because the will names who the person wishes to be guardians.

2. Persons should not write Their Own Wills

some People think they can write their own Will. This may or may not be a good idea because if the language is wrong, their wishes may not be carried out. Anyone signing a will normally needs two witnesses to declare that they have witnessed the person signing the will and that the person was mentally sound when it was signed. This is referred to as attestation of a will. A person writing their own will may not be versed in the legal terms necessary to properly carry out their wishes or the procedural formalities needed to ensure proper execution.

3. Handwritten Changes to a Will are not Allowed

Many people who have a will will experience changes in their lives or change their minds over whom to give their property. Simply crossing out one name in a will and writing in another is generally not valid. Usually, an amendment to the will, called a codicil, is needed. Like the original will, a codicil requires the signature of two witnesses, as well as an attestation of witnesses.

4. A Will does not Automatically Transfer Property

When a person dies leaving a will, it must be presented to a special court for approval. This process is called probate. A probate court judge will review the will to ensure it is valid and will appoint a person to carry out the instructions in it.

The probate process can take months or sometimes years to complete. Only when the court approves of the will can the property itself be transferred.

5. Not all Property is Transferred by a Will

Some property, such as life insurance proceeds or some real estate may be transferred differently than is stated in the will. If a person has a life insurance policy that directs the proceeds to go to A, but the will states that “all of my property goes to B”, the life insurance will go to A.

In fact, if life insurance names a specific person to pay the proceeds, it does not matter if a will exists. Likewise, if real estate is owned with another person, the real estate may automatically transfer to the other person.

The laws for creating and carrying out the wishes of a will can be complex. If there are questions or confusion of how to do so, a person should meet with a qualified estate planning attorney.

Read more here:
http://www.goodwillsmidlands.co.uk/our_services/some_interesting_facts_about_wills
http://burke.patch.com/blog_posts/top-5-myths-and-facts-about-wills-trusts-5e99b4f8
http://lawprofessors.typepad.com/trusts_estates_prof/2012/05/ten-fun-facts-about-estate-planning.html
http://www.law.cornell.edu/wex/attestation_clause
http://www.investopedia.com/terms/p/probate.asp
http://legal-dictionary.thefreedictionary.com/Codicils

Medicaid Redesign team Proposes Changes to Medicaid Eligibility in New York

Governor Cuomo recently accepted proposals from New York’s newly created Medicaid Redesign Team (“MRT”). While it is early in the process, and the proposals may not be implemented in their present form or at all, budgeting pressures at all levels of government make it likely that some changes in the Medicaid program will occur. Here are a few of the particularly troubling features of the MRT’s proposals:

Elimination of Spousal/Parental Refusal

Currently, a spouse may refuse to support their spouse who is an applicant for Community Medicaid or Medicaid Home Care. When this occurs, Medicaid is obligated to provide care or services to the applicant, assuming he is eligible (under $13,800 in resources), even if the spouse can afford to pay. The MRT is proposing that the resources and income of the spouse should be considered in determining whether the applicant is eligible for Medicaid. This means that spouses, and parents of disabled children, will be required to spend down virtually all of the household’s assets, and contribute a share of their income, before their ill spouse or disabled child will be eligible to receive care.

5-year “Look Back” for Community Medicaid and Home Care

Currently, the 5-year look back and transfer penalties apply only to applicants for Institutional Medicaid (for Nursing Home Care). Currently, applicants for Community Medicaid or Home Care are able to transfer their assets to family members, friends, or trusts, and thereby become eligible for Community Medicaid benefits. The MRT’s proposal would extend the 5-year look back to Community Medicaid and Home Care, which means that many potential applicants will find that they are ineligible for Medicaid, or subject to a lengthy penalty period before benefits can be obtained.

Estate Recovery

Currently, it is difficult for Medicaid to recover from the estates of medicaid recipients where the recipient has effectively transferred their assets during life to a family member or trust. The proposed law would allow medicaid the ability to seek recovery in these cases.

Impact of these proposals

If these proposals become law, many Medicaid applicants and their families will be severely affected. Some will find their financial situation and lifestyle significantly diminished, and others may find it difficult to pay for even basic living expenses. Many may to apply for food stamps, another program funded by the government.

What to do? Now, more than ever, people who need, or may need (even if they think they will never need it), long-term care should make it a top priority to consult an Elder Law attorney. Planning may need to be taken earlier than previously seemed necessary. As always, with proper planning, t will still be possible to improve your situation, even if these new measures find their way into law.

Enhanced by Zemanta