Asset Protection

Back To Basics: Witnesses and Your Will

Published on: August 20, 2016 | by Ettinger Law Firm

It is common knowledge that in order for a New York will to be valid that there must be other people to witness you signing your will as well as putting down their own signatures on your will. Despite this knowledge though improper execution of the will is the most common reason that a will is found to be invalid.

Why Do I Need Witnesses At All?

Witnesses provide an important evidentiary function to the probate process. Witnesses to your signing can provide first-hand accounts of the execution of the will. If a will is ever contested, the witnesses can testify about the procedures that were followed when executing the will, the testamentary capacity of the testator as well as the mental capacity of the testator.

Planning For Your Fluffiest Assets

Published on: August 1, 2016 | by Ettinger Law Firm

Pets Are Often An Overlooked Concern in Estate Planning

Despite their ubiquitous presence across the United States, few people consider the needs of their pets in their estate plan. People tend to be so concerned with providing for their children and making sure that their assets are protected from taxes that they forget about the members of their family that are always there for them.

When you consider providing for your pet after you are gone, it is important to have all of the necessary information. If you are putting together an estate plan that addresses the issue of taking care of your pets, keep the following in mind.

Gifts to the Dead in New York: Are They Still Effective?

Published on: July 23, 2016 | by Ettinger Law Firm

Most people plan their estate believing that everyone they have left money or bequests to will survive them, such as when a parent specifies that money or property will be left to a child. But sometimes unexpected deaths happen and when it does, many people are left wondering what will happen to the property that they specified to go to the predeceased. It is a tricky situation, but thankfully New York law and proper estate planning precautions can address the problem.

New York “Anti-Lapse” Statutes

Common law followed in the past dictated that gifts to someone who was deceased was null and void. This is due to the fact that a dead person cannot own property. Since they cannot have property, they cannot inherit it. When someone left property to a person who had predeceased them, the bequest would be said to have lapsed. This would have unintended consequences, such as cutting out people who would have inherited the property if the bequest had not failed and others receiving more than the testator intended.

What Happens if my Beneficiary Turns Down My Bequest?

Published on: July 21, 2016 | by Ettinger Law Firm

It is not a common situation but it does happen. After you pass, your will is entered into probate and your beneficiaries are notified of your bequests but there is a problem: they do not want it. They refuse to take ownership of the property you have left them and in doing so have thrown a wrench in your well laid estate plan.

No Claim to the Bequest

When a beneficiary turns down a bequest this is known legally as a “disclaimer.” There is no requirement under a law that a person who is left assets or property under a will must take it. You cannot force property onto someone else. If a person disclaims a bequest, the person is treated as if they had predeceased the testator and the property will pass onto another beneficiary.

Validity of Living Wills in New York

Published on: July 20, 2016 | by Ettinger Law Firm

In a previous post titled Health Care Proxy: What is Their Role in My Health Care Decisionmaking?, we discussed the role of health care proxies in your end of life planning and what capabilities they have regarding your medical treatment in the event you are not able to make your own decisions due to incapacity. In New York, naming a health care proxy is commonly done along with the formation of a living will. A living will is another type of advanced directive, it is a written statement that outlines what the patient seeks to have done regarding his or her medical treatment, in the event of incapacity or unconscious. A health care proxy will carry out the terms of a living will when there is one on record, instead of making the medical decisions for the patient which is their traditional role. A living will puts the patient’s loved ones on notice of what the patient’s wishes are and ensures they are carried out.

Interestingly, in New York, legislation has not given guidance as to the right of an incapacitated individual to have their last rights respected. However, courts in New York will, through clear and convincing evidence, attempt to respect those wishes if there is a way for them to be known, i.e. through a written document such as a living will. In the living will, you can state which treatments you wish to refuse in the event that they are being considered for treating your condition. Many forum living wills state that in the event of irreversible physical or mental condition, either due to terminal illness, permanent unconscious condition, or minimal consciousness but inability to make decisions, the patient can decide whether they wish for treatment to be withheld. You can also indicate in which scenarios, such as cardiac resuscitation, artificial feeding, mechanical respiration or refusal of antibiotics, you wish for treatment to be administered or withheld.

When it comes to terminal illness, majority of doctors are quick to respect the wishes of a patient who has completed a living will. Terminal illness is generally the most common and uncontroversial example of a situation where a patient’s living will being recognized by the court. However, situations such as permanent disability have been more difficult to apply living wills to. While some people view disability as an intolerable condition in which they would rather cease living than to have a lesser quality of life, doctors have a difficult time because many people will show signs of improvement over time in situations such as a traumatic accident or episode in which they are left in a lesser state than before.

Disinheriting Your Spouse? Not So Under New York Law

Published on: July 18, 2016 | by Ettinger Law Firm

You are always told that you can leave whatever assets you want in your will to whomever you want. After all it is your last will and testament. Your will represents your final wishes and they are to be carried out to the letter. You may be shocked to learn that in some cases under New York law that your will can actually be disregarded almost in its entirety, and that special case comes into play if you do not leave anything to your spouse.

Sacred Institution, Sacred Inheritance Rights

Marriage holds a special place in society and the laws of New York not only reflect that distinctive position but also protects the institution of marriage. Under New York’s Estate Powers and Trusts law section 5-1.1, a surviving spouse has the right to collect assets from a deceased spouse’s estate if the deceased spouse’s will either does not provide for the surviving spouse or does not give enough to the surviving spouse. It does not matter if the will has bequeathed those assets to someone else; the surviving spouse’s rights to the property trumps all others.

Understanding Joint Ownership with Rights of Survivorship

Published on: July 16, 2016 | by Ettinger Law Firm

There are many ways to pass on your assets without having to go through probate. Any account or policy with a beneficiary designation, payable on death clauses or joint ownership with rights of survivorship will not be considered to be a part of a probate estate. Those assets will pass to the person designated or the other joint owner at the time of your death. Despite being handy estate planning tools that help assure that the assets in question are never out of reach or frozen, many people fail to understand the nuances and rights associated with such designations and it is this failure that can frustrate and cause unintended consequences when dealing with a person’s estate.

Only After You Pass

Many people are familiar with a beneficiary designation on a life insurance policy. After you pass, the insurance company gives the money from the policy directly to your beneficiary avoiding probate. Similar to a beneficiary designation is what is called the payable on death clause (POD). At the time of your death, your designated beneficiary can claim the assets in the account by showing a death certificate, similar to claiming a life insurance policy. The designated beneficiary has no claim to the assets in the account while you are alive and cannot withdraw or otherwise dispose of them.

Revoking Your New York Will

Published on: July 14, 2016 | by Ettinger Law Firm

People are taught to hang onto important documents. Every person is instructed to hold onto deeds, mortgages, bank records and tax returns in a safe place where no one else can access them lest important information fall into the wrong hands. But wills, which might be the most important document a person can have, should not be held onto after a new one has been executed, and while it may be a good idea to keep it in a safe place, hiding it like the other documents may have unintended consequences.

Written Revocation

There are many ways to revoke an old will and it is always a good idea to do so if you have drafted a new one. The easiest and most common way to revoke a will is to draft a new one and have an explicit clause that revokes any previous wills and codicils that you have executed. Because your new will is dated later than the previous wills, the revocation will be effective.

Back to Basics: Funeral Instructions as Part of Your Estate Plan

Published on: July 10, 2016 | by Ettinger Law Firm

The Benefits of Planning

The loss of a loved one is difficult enough without having to plan and pay for a funeral. With a little foresight, you can save your loved ones from unnecessary stress. While death is an eventuality, few people seem to want to plan for it. Everyday 7,195 Americans die leaving family and loved ones to pick up the pieces. One of the easiest ways to reduce the stress on your loved ones is to provide funeral instructions.These instructions may include: how you would like your remains to be treated (cremation or traditional burial), how you would like your organs to be treated (medical donation, scientific donation or traditional burial), what type of memorial service you would like, and what type of grave marker you would like.

By planning now, you can help to reduce some of the pain and stress associated with the loss of a loved one. Your family will be able to mourn without having to worry about making important funeral plans.

Elder Law Concern – Capacity Issues

Published on: July 9, 2016 | by Ettinger Law Firm

Sumner Redstone, founder of Viacom, once again had made headlines recently in his decision to alter the terms of his will, raising questions about his decision making capacity. Mr. Redstone suddenly removed two longtime trusted businessmen and friends, the chief executive and director of Viacom, from the trust that controls the media business when Mr. Redstone dies. After the ouster, both filed suit to invalidate the decision, claiming Mr. Redstone had diminished mental capacity and was being manipulated by his daughter, whom he has had rocky relationship with over the years. This is not the first time Mr. Redstone’s capacity has been challenged however. Prior to the recent ouster, he also has taken his former companions out of his trust, both were estimated to receive $75 million each.

After a series of strokes, Mr. Redstone now has a severe speech impediment that has left him needing an interpreter to speak on his behalf in a recent deposition. However, after evaluation by medical professionals, he has once again been cleared as mental capable of making his own decisions. In his most recent medical evaluation, he recalled why he made the decision to oust the two businessmen, pointing to falling stock prices and their inability to run the company correctly.

What Does Diminished Capacity Mean?