When planning for the rest of your life, you want to work with someone with the knowledge and experience to leave you confident there will be respect for your final wishes. Planning for the end of your life and the time after can be overwhelming. But with the steady guidance of a Long Island estate planning attorney, you can rest easy knowing your future is taken care of.

To get started planning for your future, reach out to the Long Island estate planning attorneys at the Law Office of Andrew M. Lamkin, P.C. Our office exclusively practices estate planning, allowing us to focus on developing a deep understanding of the law and the best strategies to get what you want. We dedicate our time to explaining complex legal concepts to ensure clients understand their estate plans as well as we do.

Probate

A good estate plan can help your loved ones manage your affairs after death. Designing a good plan begins with understanding the probate process.

When someone dies, their estate typically goes through probate court. The process varies based on whether the person (the “decedent”) did or did not have a will. If they did, they are called a testator.

Intestate Succession

If someone dies without a will, their assets pass through intestate succession. The court appoints an administrator, who compiles the decedent’s assets and liabilities and notifies people with an interest in the estate. After paying off debts, the administrator distributes the remaining assets to surviving relatives in order:

  • Spouse and children;
  • Parents if no surviving spouse or children;
  • Siblings if no surviving parents;
  • Grandparents, aunts and uncles, or cousins if no surviving siblings; and
  • Great-grandchildren of grandparents if no other surviving descendants.

If no close enough relative survives, the estate passes to the state of New York.

Testate Succession

Typically, a will designates an executor who manages the estate and carries out the wishes expressed therein. After the executor brings the will to probate court, those with an interest in the estate can challenge the will’s validity. Common challenges include:

  • Lack of testamentary capacity—the testator was not of sound mind when they created the will;
  • Undue influence—someone induced the testator to create the will through improper means; and
  • Improper execution—the will does not meet the legal requirements for a valid will.

The probate court may discard the will if any of these challenges succeed. The existence of a previously unrevoked will may cause it to be reinstated. However, the challenge may cause the estate to pass through intestate succession.

Wills

Creating a will empowers you to direct where your assets go when you die. You can use a will to make your wishes clear, provide for your loved ones, or even establish funds to support your preferred charitable causes. 

Wills must meet several strict legal requirements, including:

  • The testator is 18 or older;
  • The testator is of sound mind;
  • The will is in writing; 
  • The testator signs the will; and
  • Two witnesses sign the will.

A carefully drafted will can simplify the probate process for your loved ones.

Trusts 

Trusts are one of the most flexible estate planning tools available. One of the primary reasons trusts have such great utility is that they are non-probate assets. Non-probate assets change ownership by their terms, bypassing the probate process. 

Your trust can be either living—funded and operational during your lifetime—or testamentary—funded and operational upon your death. It can also be revocable—the creator (“grantor”) can choose to dissolve the trust and retain the assets—or irrevocable—the grantor cannot choose to dissolve the trust and retain the assets.

Some common trusts include:

  • Charitable trusts, 
  • Generation-skipping trusts,
  • Special needs trusts, 
  • Medicaid trusts, and
  • Spendthrift trusts.

You can create many other types of trusts based on your unique needs.

Healthcare Planning

Planning for your estate also often includes planning how you will meet your health and financial needs as you age. That may include:

  • Advanced healthcare directives (“living wills”),
  • Powers of attorney, and
  • Medicaid planning.

With estate planning tools, you can protect your assets and ensure your wishes are respected if you become unable to communicate them.

Advanced Directives

An advanced directive allows you to state your wishes related to medical treatment should you become incapacitated in advance. An advanced directive often includes instructions related to resuscitation, feeding tubes, being placed on a ventilator, and similar medical treatments.

Powers of Attorney

When you establish a power of attorney, you designate someone you trust to manage your healthcare, finances, or both if you become incapacitated. When selecting your power of attorney, you should discuss the appointment and your desires with the person chosen.

Medicaid Planning

One of the most significant expenses many face as they age is the cost of long-term care. If you do not plan carefully, you may be out tens of thousands of dollars to cover your medical needs. As a result, your estate can shrink, preventing you from leaving the legacy you hoped for your loved ones.

Medicaid eligibility

Medicaid is a government program that covers long-term care costs. However, you can only qualify for long-term care through Medicaid if you have limited assets and income. 

When you apply for Medicaid, the government looks at the previous five years to see if you transferred assets away that would have prevented you from qualifying. If you transfer too many assets, you must wait for a penalty period to pass before receiving Medicaid, regardless of how badly you need healthcare. As a result, many people think you have to spend down your assets to qualify for Medicaid.

Medicaid trusts

However, if you plan far enough in advance, you can protect your assets and still qualify for Medicaid. To do so, you can create a Medicaid Asset Protection Trust (MAPT), a Qualified Income Trust (QIT), or both. 

Through a MAPT, you set aside assets in an irrevocable trust that limits your ability to control trust assets. As a result, the assets in the trust do not count as yours for Medicaid purposes. 

QITs, also known as Miller trusts, operate similarly. The trust automatically deposits income above the Medicaid level into a trust. This trust must be irrevocable and allow only limited control to not count as income for Medicaid purposes.

Speak with a Long Island Estate Planning Lawyer 

Planning for your future can be intimidating. Hiring an experienced, knowledgeable estate planning attorney in Long Island allows you to take control. With a plan, you can enjoy the days to come, knowing that you and your loved ones are cared for. Reach out to the Law Office of Andrew M. Lamkin to learn more about estate planning in Long Island and speak with a Long Island estate planning attorney.