New York Estate Planning & Elder Law Blog

State Supreme Court finds Conflict of Interest Where Personal Representative Used Estate Property to Operate Decedent’s LLC After Death

Published on: July 29, 2015 | by Ettinger Law Firm

When a business owner passes away, there are inevitably additional concerns for the estate. For instance, should the business be closed, or should the business continue to be operated by surviving family members? How should the company’s assets be distributed among heirs? Experienced New York elder law attorneys can assist in making these difficult decisions and minimize the risk of problems like what occurred in recent Georgia case involving just this situation.

In a recent decision from the Georgia Supreme Court, James Myers, Sr. died, leaving his son, Anthony Myers, as his executor. Unfortunately, Anthony began using estate assets for personal gain, and soon his brother brought an action in the probate court to return the misappropriated funds and to remove Anthony as representative. The Supreme Court found that indeed Anthony had mishandled the estate. The following are some of the important lessons for executors.

The language of a company’s operating agreement or articles of organization control what should happen upon an owner’s death

Why Consider a Special Needs Trust?

Published on: July 28, 2015 | by Ettinger Law Firm

Supplemental Needs Trusts (also called Special Needs Trusts) have become fairly popular in recent years. These trusts are designed to protect a disabled person’s assets in order to ensure the greatest amount of funds available for care and support. In 1993, Congress passed legislation in 42 U.S.C. § 1396 et seq. that specifically allows a disabled person to exempt assets from public aid determinations. You can click here to read more about how the government treats these unique trusts. One look at the complex federal regulations that control these trusts should be reason enough to consult an experienced elder law attorney to find out if it is right for your situation.

How much money can a disabled person keep and still be eligible for public aid?

In general, for a person to qualify for Medicaid, he or she must be impoverished. This means having less than $2000 in personal assets. Previously, there were fairly strict provisions that made it difficult for a disabled person to keep assets and still qualify for Medicaid funding of long-term care. Nursing home and rehabilitation costs can be exceedingly expensive, and people are often concerned that a disabled family member could quickly spend all of their assets on care and support before qualifying for government assistance.

Joint Accounts are no Substitute for Quality Estate Planning – Part 2

Published on: July 24, 2015 | by Ettinger Law Firm

How does joint tenancy avoid probate?

Let’s use a simple example: the family home. When an aging widow places her home in joint tenancy with an adult daughter, they both immediately are entitled to possession and ownership. Each has the same rights. If the property is rented, each is entitled to the entire rent equally. Therefore, the law generally considers the widow’s action as a gift to her daughter. Likewise, upon the widow’s death, the house is immediately the sole possession of the daughter and not part of the probate estate. In other words, it passes outside of probate.

So what is wrong with joint tenancy?

Joint Accounts are no Substitute for Quality Estate Planning – Part 1

Published on: July 22, 2015 | by Ettinger Law Firm

Estate planning attorneys are frequently asked a troubling question: what’s the quickest, cheapest, and easiest way to just avoid probate altogether? Of course, you can never expect an attorney to provide a blanket response to that question. It is similar to asking your doctor, “What’s the quickest, easiest, and cheapest way to avoid heart disease?” The answer in both cases will undoubtedly depend on many things. For the doctor to give an informed response, he or she would need to perform blood tests, get some idea of your history, lifestyle choices, eating habits, family history, and so forth.

The same is somewhat true of offering a comprehensive estate plan. It is, after all, designed to protect you and your family later. So, your attorney will likely need to know your net worth, what real estate you own, your relationship with your children, siblings, and other relatives, your goals, career, income, and your level of health. These are just a few of the issues that go into deciding how to properly establish your estate plan. This warrants discussion, because people continue to find themselves engulfed in painful litigation against their own family, often despite good intentions.

Every year many Americans are fooled into choosing quick fixes to “avoid probate.” In many ways, a complete misunderstanding of the probate process has perpetuated this mentality. In fact, web-based “self-help” legal services are often the worst culprit. But if handled properly by an experienced attorney, probate can be a powerful and straightforward process for settling a decedent’s affairs. Some sadly choose to simply open joint bank accounts with an adult child or close friend and then place all of their money in those accounts with simple instructions regarding how they want the money spent upon death. Many people also do the same thing with their homes, automobiles, and other types of property, thereby completely avoiding probate. But this is not a wise strategy.

Techniques for Coping with Caregiver Stress – Part 1

Published on: July 21, 2015 | by Ettinger Law Firm

With an aging population, more adult children are finding themselves faced with the difficult dilemma of caring for aging parents. In fact, the Centers for Disease Control estimate that nearly 34 million Americans provide caregiver services to someone over 18 who suffers from illness or disability. Roughly 83% are family members. This means there are approximately 28.2 million unpaid family caregivers providing these services to loved ones every year.

While caring for an elderly loved one can be a rewarding endeavor, it is not without its complications. This is especially true when it comes at the peak of one’s careers or perhaps while still raising minor children. Unfortunately, AARP only about 61% reach out to friends and family for help. But there is hope.

What is caregiver stress, and how do I recognize it?

How NOT to Avoid Estate Taxes: The Scholarship that wasn’t a Scholarship

Published on: July 20, 2015 | by Ettinger Law Firm

Julius Schaller was a Hungarian-American immigrant was a wealthy grocery store owner who had acquired substantial assets that exceeded the threshold for paying estate taxes. In order to avoid the tax burden, he established a special scholarship foundation for Hungarian immigrants who pursue performing arts. He named it the Educational Assistance Foundation for Descendants of Hungarian Immigrants in the Performing Arts. Estate planning attorneys often create such organizations for wealthy individuals. However, it must be a legitimate nonprofit organization.

The foundation was established as a nonprofit organization and granted tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. But there was a catch. The foundation was a rouse. It hardly advertised the scholarship, and during the first two years of operation, the scholarships were only awarded to his heirs – specifically a nephew, niece, and another member of the family. This is a problem.

The IRS does not take kindly to those who set up fake organizations under the guise of providing a legitimate scholarship or philanthropic service to the public. As such, the IRS revoked the foundation’s nonprofit status, and litigation ensued.

FINRA Issues New Alert for Estate Planning

Published on: July 17, 2015 | by Ettinger Law Firm

The Financial Industry Regulatory Authority (FINRA) issued a new alert regarding the transfer of brokerage accounts upon death. This report has important information for people who are considering using brokerage accounts as part of their estate plans. The alert informs current brokerage account holders, family members, and their other beneficiaries about the processes involved when the account holder passes away.

What is FINRA?

FINRA is the largest independent regulator in the world for all securities that do business in the United States. The organization’s main purpose is to provide investor protection and ensure market integrity through effective and efficient regulation. Some of FINRA’s responsibilities include registering and educating industry participants, examining security firms, writing and enforcing rules, and educating public participants in the market. FINRA also offers dispute resolution for security firms and participants in the securities market.

New LGBT Training for Elder Care Service Providers

Published on: July 17, 2015 | by Ettinger Law Firm

A recent study at the University of Miami found that nearly 75% of all elder care service providers reported having members of the LGBT community as clients. Yet, less than 33% of these service providers had any type of specialized training geared towards the needs of seniors in this community. This study has prompted a new initiative in Florida called the “Protect Our Elders” campaign, aimed at addressing common problems that prevent elderly members of the LGBT community from seeking elder care.

Results of the Study

The University of Miami surveyed 48 facilities and agencies throughout southern Florida that provide some type of elder care services. This included hospitals, nursing homes, care facilities, churches, libraries, and more. Of those surveyed, 83% of the facilities and agencies said that not only would they be willing to offer LGBT training but that they also think that their employees would be interested.

Estate Planning for Singles

Published on: July 15, 2015 | by Ettinger Law Firm

Most of the estate planning tips and tricks revolve around plans for couples; however, a single person’s estate plan is just as important. In many circumstances, the way that a single person structures their estate plan and who is named differs from an estate plan of a couple. Just as with couples, if a single person fails to properly plan there can be dire consequences for an estate.

Dying Without a Will

If a single person dies without a will, then they are considered intestate. All of the assets in their estate go into probate, and the court will disperse the assets according to state law. Because there is no spouse, typically the court will split the estate between any children, parents, and siblings. If there are no close living relatives, then all of the assets in the estate are forfeit to the state. This worst case scenario highlights the importance of titling various assets, beneficiary designations, and how an estate plan can help a single person.

Causes of B.B. King Estate Battle

Published on: July 13, 2015 | by Ettinger Law Firm

Riley B. King, also known as famed blues musician B.B. King, passed away on May 14 and left behind a contentious estate battle between his children and manager. One of his daughters, Patty King, claimed in an interview that her father did well by his children and is now leading the charge against her father’s business manager, LaVerne Toney, of 39 years. Five of his eleven surviving children have all made claims of serious wrongdoing against the manager.

Accusations against the Manager

Patty King and her half-sister, Karen Williams, are leading the case against Ms. Toney. Some claims include not allowing the children to see Mr. King, providing improper medical care, and possibly even poisoning the famous musician in his final days. Because of the claims of possible homicide, the coroner conducted an autopsy and is awaiting toxicology results before rendering a final opinion. However, these types of tests could take weeks to return a result.