August 17, 2019










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 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.

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 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.

Getting Married This Month? Now Is the Time to Start Your Estate Plan

One of the first things you and your soon-to-be spouse think of after getting engaged is planning the wedding and how your future will be with one another. Most likely, the last thing on your mind is your estate plan.

However, an estate plan is critical when a significant life change happens – such as getting married. Whether you have one already or you have none, there is no better time to start planning your future by creating an estate plan.

Should a Plainview Couple Draft a Will Before or after They Get Married?

The most prominent question couples ask is when they should start creating their estate plan. If you plan to get married, you need to review the process. You will also want to update areas of your will or start thinking about these areas for your new will, including your power of attorney, advance directive for healthcare, and beneficiaries.

You can create an estate plan before or after the wedding. Some couples prefer to handle estate plans after nuptials, while others want to finish theirs before the big day so that it is one less thing to work on.

If you do create the estate plan before officially saying “I do,” you should have a provision that states your intent that the marriage does not revoke the will.

What Should You Update on a Will after You Are Married?

One of the biggest things you must do is update your beneficiaries. Not only should you do this on your estate plan, but also any death benefit designations you made on your retirement account, bank accounts, and investment accounts. These override any beneficiaries in your will. Therefore, if you have a parent or sibling listed as your beneficiary, your spouse would not receive the benefit.

Have a Detailed Conversation

You also need an in-depth conversation about what you want with each other, how you want to split assets among your beneficiaries, and who should make the big decisions if one were to become incapacitated. After all, you are now blending families, and your list of potential beneficiaries (until you have children) will differ from what you would have considered when you were single.

You both should also consider what would happen if you both were to pass away and if you want to select secondary beneficiaries to your estate.

Update Your Will or Create a New One

If neither of you has an estate plan, now is the time to create one. If you or your future spouse has an estate plan, you will need to update it to reflect the marriage and any changes. Talk about how you want assets split if something were to happen to one or both of you.

While the subject might bring a negative light to your happiest day, it is something you still need to discuss. Think of the positive aspect of having a well-drafted estate plan rather than the negatives. You should consider it a piece of reassurance that your loved ones will be taken care of if something were to happen.

Do Not Forget Your Power of Attorney

You must make sure your power of attorney and advance medical directive is updated; otherwise, your spouse may not have the input or power that you intended for them to have.

Without a durable power of attorney, your spouse cannot handle financial affairs, including managing accounts that are in your name or accessing funds.

Likewise, you will want to have an advance directive that names a party responsible for your healthcare decisions when you become incapacitated and cannot make those decisions on your own. A spouse is typically the party named on these documents. However, you may want to name a backup in the event you and your spouse are incapacitated or injured at the same time.

Consider a Trust

You and your spouse might enter the marriage with a sizeable estate. If so, you may want to start the process of creating a trust for your assets. This can include any property you own separately or that you will have during your marriage, accounts you combine, and investments.

Furthermore, trusts offer more protection for you and your spouse. They provide you with privacy, too, and save your loved ones from the hassles of going through probate court.

Title Your Assets Correctly

Make sure you title your assets so that your spouse is reflected in those documents. While joint tenancy will give the rights of survivorship to your spouse, it does not provide a power of attorney.

Select an Estate Planning Attorney

Whether you want to take care of your estate plan before, or you would like to wait until after the big day, at least start thinking about your estate plan and what you need to add or change, and your goals with this very critical document.

Then, start looking for an estate planning attorney in your area. You want someone who will help you create an estate plan for you and your spouse that protects your assets before your marriage as well as those assets you gain throughout your relationship.

Likewise, you want to make sure that you can provide for one another if the unspeakable were to occur.

The Law Office of Andrew M. Lamkin, P.C., can assist you with your estate planning needs. Whether you each have an estate plan that now must be re-drafted into one or you are starting from scratch together, we can help you.

Attorney Andrew M. Lamkin, P.C., will meet with you during an initial consultation to go over your expectations, gather documents, and help create a plan. Then, you will work closely with him and his team to devise an estate plan that not only helps today, but protects you and your family as it grows and moves into the future.

To get started, schedule a free case evaluation by calling  or requesting more information online.

The Dangers of Using Downloaded Estate Planning Templates

Today, you can do almost anything online.

You can open a bank account, start a retirement, open a business, and more. With the plethora of do-it-yourself websites out there and articles showing you the steps, you might assume that you can create your estate plan using one of these sites and save yourself thousands.

Unfortunately, estate planning is not something you should use a premade template for. Doing so could risk your estate and cause more hassle for your loved ones later.

State laws vary, and do-it-yourself templates are generalized: meaning, they do not specify by state. Therefore, you could use a general template that violates state estate laws, and the court will find it invalid, which means the court will not recognize the plan anyway.

The Reasons Plainview Residents Should Never Use a DIY Estate Plan

You have worked hard to build your estate, so why risk giving your family much less than you anticipated just to save some money creating an estate plan?

If you are convinced a DIY estate plan is just fine, here are a few reasons to reconsider:

You Are Not Receiving an Expert’s Review

DIY estate plans are missing one key element: a legal professional. There is nothing wrong with wanting to save money, but when you do so, you skip out on being able to consult with an attorney. These documents often do not create the results you intend for them to. And if you do not understand the legal or technical aspects of estate planning, you are putting your entire estate at risk.

For example, you sign the deed of your house over to your trust. However, you didn’t create the trust in accordance with state laws; therefore, it was never active. Now, your home is not part of the trust as you intended.

You Do Not Have a Personalized Estate Plan

Every estate is unique, and that is the point of meeting with an estate planning attorney. You want to draft a plan that addresses the unique aspects of your beneficiaries, estate, and assets.

Estate templates are strictly generic. They do not look for those unique factors that make you stand out from the crowd. Using these means you could miss out on a chance to avoid probate, avoid heavy estate tax, and your property might not transfer to the right party.

You Are Unlikely to Follow State Laws

These DIY tools are not specific to the state where you live – even if they advertise as such. Instead, they are a generic one-size-fits-all template. For example, New York has different laws than California, especially when it comes to estate tax and probate. Therefore, your generic DIY template is unlikely to address these laws.

Furthermore, when you create an estate plan, do you follow up on the latest changes to the law? The law regarding assets and estates changes more often than you think, which means your template might be obsolete in as little as a year.

You Might Miss the Hidden Disclaimers

Online programs typically have disclaimers, but they do not make these readily seen.

Commonly, these sites or books will have statements that the information is not a substitute for legal advice nor is it legal. These statements are published because they are legally required, but that doesn’t mean the company makes them easy to spot. The print could be fine, hidden at the bottom of the page under other content, or in areas where these websites often assume you will not read.

You Could Grant Too Much Power to Another Person

While you have the right intention with your estate plan, you might inadvertently grant too much power to another person, especially when that power of attorney document is not clearly written. Ambiguous statements are left to interpretation, which means they might not be interpreted in the way you intended them to be.

The best way to avoid this is to work with an attorney. You can tell them your wishes and the amount of power you want the individual to have. Your attorney can then clearly articulate that in your power of attorney to avoid any confusion.

You Might Not Include Your Business

DIY kits rarely have the capacity to address issues like business succession. Therefore, your estate plan is unlikely to dictate what you want done with your business after death – including whether you want the company sold, who will take over leadership, and so forth.

You Do Not Receive the Complexity Required for Unique Cases

Do you have children? Are they minors? Do you need to set up a special needs trust for an adult child who is disabled? Online programs rarely address complex estate planning issues such as these. Furthermore, they might not adequately address guardianship for minor children. This means the courts would have to decide who gets custody of your children and how the funds are managed for them.

You Are Less Likely to Update Your Will

Estate plans are not a one-time-only situation. You create them, but you can never forget them. You should review them annually and update them when you have significant changes. For example, you might have divorced, but did you create a new estate plan addressing that fact? If not, you may have some issues when it comes time to use your health care directive or when assets are distributed.

Avoid the Hassles: Speak with an Attorney about Your Estate Plan Today

Estate planning is more cost-effective than you might think. Most attorneys charge a single fee for your plan. And when you consider what goes into a well-drafted plan, it is worth every penny.

To save your loved ones from having to deal with an estate plan deemed invalid by the courts, skip the unknowns; get an estate plan that follows New York probate and asset laws, and one that can adjust to future legislative changes as well.

Get started by scheduling a consultation with an attorney today at the Law Office of Andrew M. Lamkin, P.C.

Call 516-605-0625 to schedule your free consultation or contact us online with your questions about estate planning services.

Making an Estate Plan? Do Not Forget Your Business Succession Plan, Too

If you have a family business or started a company that you would like to keep in the family after you pass away, you need to create a succession plan. Even if you wish to sell that business, speaking with an estate planning attorney about your business’s future is critical – and you can incorporate your business succession plan into your estate plan.

Why Plainview Business Owners Need an Estate Plan and a Succession Plan

You might assume that you have an estate plan; therefore, you do not need a succession plan. What you may not realize is that all assets, including private businesses, do go through probate – unless you have named beneficiaries through a trust. Certain trusts can allow your assets to pass outside of the taxable estate, including your business.

To take advantage of those trusts, you need an attorney to help set up a business succession plan alongside your traditional estate plan. This way you protect your business, investment, and your loved ones at the same time.

The Consequences of Not Planning – and Not Including Both Options

Without considering a complete plan that incorporates personal and professional assets, your family may suffer from severe financial and emotional consequences.

The Consequences of No Business Succession Plan

  • No Clear Direction – Who will lead the business? Who takes over and manages? Without a succession plan in place, there is no clear direction for how the company will continue to operate (or if it should operate) after your death.
  • Creates a Fear of Uncertainty – A business relies on its employees. But when leadership is mismanaged, power struggles occur over who should run the business, and the company is left picking up the pieces. Employees may leave for a more transparent future than stay with a company that is full of uncertainty. After all, employees want personal job security.
  • Family Disagreements – Family members left to make decisions for the business may go through disagreements, and decisions like these can tear families apart.
  • Loss of Value – When the key person running the company dies, surviving shareholders may go to sell the business and realize that there is a loss in value because of that person’s death.

The Consequences of No Estate Plan

  • Tax Liability – Without an estate plan drawing a line between professional and personal income and assets, a family may experience estate tax liability that they had not planned on encountering.
  • Probate Court – Family members will have to endure probate court fees and time lost for private assets as well as the business.
  • Delayed Distribution – Without an estate plan, the estate waits in line for its turn in probate, which means there is a delay in the distribution of assets. It may take months to years for the estate to resolve, depending on the complexity of that estate.
  • Litigation Costs – Family members may have unexpected legal costs for disagreements amongst each other.

The Tax Considerations for a Budding Business

Between the time you make an estate plan and the time you pass away, your business may see significant growth. That means the amount of money your business generates can increase the value of your estate – and with that value comes the issue of estate taxes.

How Does the Business Succession Plan Differ from an Estate Plan?

Your business succession plan focuses strictly on the business and assets associated with that business.

At a bare minimum, your succession plan needs to focus on the transfer of management of the business or the ownership of the business entirely.

The procession of management succession typically involves:

  • Developing, training, and supporting successors
  • Delegating responsibility and authorities to successors
  • Bringing in outside advisors to help in the process
  • Maximizing employee retention by creating a smooth transition and proper planning

The process of ownership succession might involve:

  • A plan that coordinates the person who will own the business after death and who will manage the business (if they are two separate people).
  • A plan that considers the best interest of both sides.
  • A plan that involves moving the business over before the current owner’s death – giving that past owner a chance to meet with, cultivate, and guide successors.

Can You Make a Business Succession Plan without an Attorney?

A business succession plan protects your business, loved ones, and any employees you might have. While you know this, you should also know the importance of hiring a professional to draft that protection.

Templates online rarely address the complexity of each business, and every company is unique in what they need for succession to work. Succession plans account for various circumstances, including how partners will handle the business, what happens if legal agreements are violated, and how the business moves forward if you were to pass away unexpectedly.

These legal hurdles are serious. Without the right plan in place, your business could fail.

An attorney addresses any unique legal concerns your business might have, and an attorney will address all state and federal issues that could arise.

Business planning requires attention to detail and a vast knowledge of employment, business, and estate laws. For this reason alone, a business owner should enlist the help of an attorney in their succession plan. An attorney will consult with tax experts to assist them in drafting a plan. Also, if a legal dispute does arise about your business later, your estate attorney will be able to defend your plan and your estate in court after your passing.

Consult with a Local Attorney that Helps Your Business Pass Safely

Attorney Andrew M. Lamkin, P.C., can help with not only your estate plan but your succession plan too. By going over your business’s unique needs along with your personal concerns for your loved ones, I will help you create a succession plan combined with a substantial estate plan that protects your family for years after your death.

To get started, schedule a consultation with my office at 516-605-0625. You can also schedule your free case evaluation appointment online.

Estate Planning with an Out-of-State Vacation Home

It is not uncommon to find a client that has property in multiple states. Usually, it involves an individual or couple that has their primary home here in New York but a vacation home elsewhere else in the country.

Whether you have a vacation home in Florida for the warm summers or a snow-ready cottage in the mountains of Utah, it is essential that you do not forget about it when you make your estate plan.

Also, you must realize that the laws for your out-of-state vacation home might differ from where your primary residence is located. Therefore, it is important you speak with an attorney to ensure that you have both jurisdictions covered and your estate plan does not violate any laws.

Your Plainview, NY, Domicile in Estate Planning

In estate planning, you hear various terms. And one that you will hear often is your domicile. The law allows for you to have one main place of residence, the domicile, which is where you return when you leave.

A person could technically spend three-quarters of the year out-of-state and still have a domicile in another. In most cases, identifying the domicile is easy. But other times, it might become complicated when you split your times equally between two residences.

You might ask why it matters where your domicile is, and what the difference is between a vacation home and main residence. The main issue you are addressing by labeling your domicile is the state estate tax or income taxes that must be paid upon death. Also, your domicile location determines which probate court has jurisdiction over your estate and your beneficiaries inheritance.

Where you are domiciled has a significant impact on your estate, especially for taxes. Even if your estate is exempt from the federal tax, some states impose estate tax at a lower threshold than the federal level. When you do not specify clearly in your estate plan, two states may claim that you have domiciles in their territory and both apply a tax.

Declaring a Domicile Might Help

You can declare your domicile within your estate documents. Doing so is helpful for determining which state can impose taxes and which probate court has jurisdiction.

Simply stating your domicile state is not enough. Instead, you must use evidence to support your declaration to avoid the state contesting your domicile designation. One way to prove which residence is your domicile is by providing:

  • Physician information – People see physicians in their home state. Therefore, your primary physician should be located in the state where you declare your domicile – and you would have insurance billings and records to prove it.
  • Employment – Your employer is typically located in your domicile state. Therefore, employer information helps support your declaration.
  • Voter registration – You are not required to register as a voter, but doing so helps establish your domicile state.
  • Bank accounts – Showing where your bank accounts were opened and managed help prove your domicile, too – especially if you use a financial institution that is not located in the state of your vacation home.

Ancillary Probate and Your Vacation Home

You want to avoid probate. But if you did not plan properly, your real estate in another state could be subject to that state’s probate. Known as ancillary probate, your beneficiaries may have to deal with the hassles and costs of waiting for probate to complete.

Avoiding ancillary probate is easy if you use the tools similar to those available for your home state – such as transferring the deed of your second home into a trust or creating a limited liability company to hold the property.

Selling or Gifting Your Vacation Home

Now that you have declared your domicile, you need to help loved ones avoid taxes on your secondary real estate. Property is often the highest value asset in an estate, and there are tax implications – especially for out-of-state properties.

An attorney can help you avoid being subject to estate or income tax where the vacation property is located. One of the better ways to avoid taxes is to transfer or sell the property to a family member through a trust. This keeps the real estate in the family.

One issue with doing so is your long-term care planning. When you do not transfer ownership correctly, that vacation home could be seen as a personal asset, which may disqualify you for Medicare or Medicaid benefits.

Questions to Ask before You Plan for Your Vacation Home

Before going through the hassles of selling, transferring, or planning for your vacation home, address the following questions:

  1. Does anyone in the family want the home? You may have sentimental ties to your family vacation home, and you might want to leave it to a child. But before doing so, ask if they want it. For some heirs, inheriting a vacation home is more of a hassle than benefit. Some may prefer to receive the liquid assets rather than the home itself.
  2. Who will pay to upkeep the vacation home? Vacation homes are expensive and still require maintenance even if they sit empty for weeks or months at a time. Some heirs may not be willing to cover the upkeep of that home. If you truly want the home to be a benefit, you may want to set up a trust that includes secondary funds for maintaining the vacation property.

Own a Vacation Home or Secondary Real Estate? Hire an Attorney First

Planning for a secondary home or vacation property can be complicated, especially when you are dealing with two different states. If you have a vacation property and you want to explore your options, schedule a consultation with an estate planning attorney.

The Law Offices of Andrew M. Lamkin, P.C., can help go over your options, discuss the pros and cons for both, and find a solution that works long-term for you and your beneficiaries.

Schedule your free consultation today at 516-605-0625 or contact us online to get started.

How Aging Affects Memory – and What to Take Care of Now

Most people assume that it is natural to lose the ability to remember things as they get older. While memory loss does happen as part of the aging process, the intensity and how it affects you depends on the person and type of memory affected.

Also, not all memory loss is part of dementia or Alzheimer’s Disease. However, a vast majority of the more severe cases are. Therefore, it is essential that individuals and family members act early – including preparing an estate plan – before memory becomes a legal issue.

One Critical Flaw in Estate Plans Made in Plainview, NY

When a couple makes an estate plan, they often list a spouse as their beneficiary and sometimes the executor of their estate. They do this because at the time they draft their estate plan, both parties are of sound mind and have a legal capacity to do so. Unfortunately, years later one party could fall ill or suffer from a form of dementia, rendering them unable to fill their role. Without an alternate designated, the estate could find itself in court with parties battling to take over.

It is essential to plan, especially before memory loss or diseases like dementia take over. The sooner the estate planning starts, the more likely the person with the memory loss can participate and make decisions – and more likely the court is to honor those decisions.

Why Plan Now?

Making legal decisions, including an estate plan now, is essential for a few reasons:

  • Planning early allows for the individual to express their wishes and be involved in the planning – including designating future care.
  • Early planning will eliminate the stress of family members having to guess or make decisions on their loved one’s behalf.
  • Starting early ensures the estate has time to sift through the problematic legal procedures and financial issues that come with long-term care planning, end-of-life management, and estate distribution.

When older individuals start the planning process, they need to ensure that their estate plan includes the core components, such as:

  • Long-term care
  • Financial and property plans
  • Naming an agent and alternate agent

The Role of Capacity in Estate Planning

A person’s capacity plays a substantial role in estate planning. Once a person is legally incapacitated or cannot make decisions for themselves, they rely on documents pre-made in their estate plan to protect them. However, a loss of mental capacity can be quite subjective.

In situations where a person suffers an unexpected loss of capacity or has slowly diminished their capacity over time, the courts would consider the following factors:

  • Can the individual remember details?
  • Does the individual act out of character compared to the typical demeanor?
  • Can that party recognize family members?
  • Does the individual suffer from constant confusion and decreased attention?
  • How difficult is it for the person to speak or follow through in a conversation?
  • Is there a decreased appreciation for risks?

If a person fails the capacity test, then the courts may deem them incapacitated.

If a person is considered incapacity before they finished an estate plan, the documents and decisions they made will be subject to court scrutiny, and the final will could be disregarded entirely.

Therefore, attorneys urge their clients to start the process early. Dementia, Alzheimer’s Disease, and other memory-affecting conditions can strike without notice, and by the time the symptoms are recognized, it could be too late to create an estate plan.

How an Attorney Can Help

While certain documents could be completed without an attorney, it is best to consult one if you suspect that your mental capacity is declining, or you were recently diagnosed with Alzheimer’s Disease. Getting legal advice and services from a local estate planning attorney can be helpful, especially in complicated cases just like this.

Your attorney will discuss the key issues that come with a diagnosis just like this, such as:

  • Your options for health care decisions and which party will make health care decision on your behalf.
  • Your options for managing the property and personal care – and if you will have a separate party designated for that role.
  • Your potential options for long-term care coverage, including veteran benefits, Medicare, or Medicaid qualifications.

5 Essential Tips for Better Planning with Memory Loss

It does not matter how severe the memory loss is now, or whether you suffer from forms of memory loss at all. The more prepared you are, the easier it will be for family members to help you, but also protect you from the endless scams out there that target aging individuals specifically.

Some key things to keep in mind while you work on a plan include:

  • Hand Out Copies: Anyone you give a power of attorney designation to should have a copy of the document as well as access to the original – whether that means access to a safe deposit box or a code to an in-home safe.
  • Name a Successor: No matter what the situation is, you need to provide a backup agent or successor to the original power of attorney. That way, if the original party cannot fulfill his or her duty, you have an alternative that was selected by you.
  • Brain Autopsy: Some individuals may want a brain autopsy to identify what caused their dementia or to donate for research. If this is something you want to do, you will need to ensure the power of attorney with health care decision-making power does this.
  • Health Care Providers: Give a copy of your living will to your health care providers so that they know which parties are authorized to make decisions.
  • Attorney: Consider hiring an attorney to manage your estate if you do not have someone that you trust to handle the assets and personal finances.

Speak with an Attorney Regarding Your Care

Avoid the hassles of waiting until the last minute and speak with an attorney about your long-term care planning, wishes, and more today. Contact the Law Office of Andrew M. Lamkin, P.C. now for a free estate planning consultation at 516-605-0625 or request more information online.

Living Trust Basics

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

A Living Trust Is Private

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

Assets and Administration Stay “In the Family”

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

Distribution Takes Minutes, Not Months

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

Save Thousands of Dollars in Administrative Fees

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

Most Living Trusts are a Package Deal

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

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

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

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

How To Successfully Plan For Old Age

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

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/

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 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

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