New York Estate Planning & Elder Law Blog

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?

Ensuring Your Special Needs Trust Stays a Special Needs Trust

Published on: July 5, 2016 | by Ettinger Law Firm

Special needs trusts are helpful estate planning tools that allow family members to leave behind assets to loved ones with special needs without risking the beneficiary’s ability to receive Supplemental Security Income and Medicaid benefits. Without a special needs trust, any extra income that they receive such as an inheritance may inadvertently disqualify them from receiving public benefits or cause the inheritance to be seized to pay for those benefits. With a special needs trust, the beneficiary gets the best of both worlds, with the trust funds being used to pay for a wide range of necessities like clothing, education and medical bills.

However many special needs trusts may inadvertently, either due to poor wording or mismanagement, cause themselves to not be considered by the government to be special needs trusts. When this happens, the intent of the trust is frustrated and the assets of the trust may disqualify the beneficiary from public benefits under the United States government means test.

The primary issue that often arises with a special needs trust is that the trust is not recognized as a special needs trust and is instead labeled as a support trust. A support trust is similar to a special needs trust in that it gives support to the special needs beneficiary. However, when determining eligibility under the means tests, public agencies will consider the assets of a support trust to be attributable to the special needs beneficiary. This means that the support trust may disqualify the beneficiary from qualifying for the benefits they need.

Back to the Basics – What is a Bequest?

Published on: July 5, 2016 | by Ettinger Law Firm

When writing a will, many people seek to ensure that certain people in their lives get specific things, such as a family heirloom necklace, property, or an allotted amount of money. The gifting of property or assets to a certain person through the provisions of your will is called a bequest. There are few types of bequests and different situations in which to use them.

(1) Specific Bequest: It is the gifting of a specified property or asset to an identified person or entity, distinguished from the property in the estate. For example, a specific bequest would be gifting your home to your son, or gifting your diamond earrings to your niece. The main issue faced by the estate is when, upon death, the specific gift that is to be given, i.e. the property or the diamond earrings, are no longer owned by the testator. In this situation, the intended beneficiary then gets nothing, because there is nothing to satisfy or substitute from the estate.

(2) General Bequest: A general bequest is what most people think of when they think of gifts in a will. This bequest is a gift that is payable from the assets of the estate. Most commonly seen are provisions gifting a specified amount of money to a certain person, for example, $10,000 to my nephew, or a stock or securities bond. Unlike specific bequests, these type of bequests are not for a specified item, so other assets in the estate may be sold to satisfy the gift if it is not available when distribution comes.

Float like a Butterfly, Sting like a Contested Estate: Muhammad Ali’s Unhappy Heirs

Published on: July 2, 2016 | by Ettinger Law Firm

It seems that Muhammad Ali’s estate is destined for trouble, similar to other celebrity estates that we have covered on this blog recently. It is unknown if the boxing legend died with a will, but even if he did, a will contest may be likely. Forbes reports that Mr. Ali died with an estate worth in between $50 and $80 million, had nine recognized children, four different marriages, and struggled with a debilitating disease that affects the mind. These are the circumstances that set the stage for a drawn out estate contest.

Troublesome Children

The large amount of children Mr. Ali had, as well as his four marriages, makes the number of people who may have an interest in contesting Mr. Ali’s estate quite high. One child in particular, Muhammad Ali Jr., has been estranged from his father since Mr. Ali’s fourth and final marriage in 1986 and has been cut off from the family fortune ever since. Ali Jr. in particular blames Mr. Ali’s fourth wife for driving him and his father apart.

Back to Basics: Deciding Who Will Inherit from Your Estate

Published on: June 30, 2016 | by Ettinger Law Firm

A person planning their estate for the first time is confronted with a lot of uncomfortable questions that they most likely have never had to address. There are medical decisions to be made, executors and trustees to be chosen and appointed, burial instructions to spell out, and perhaps most importantly for some, deciding who will inherit from you when you pass on. This question can often be a prickly subject amongst families, with spouses disagreeing and children being angered by the ultimate decisions.

Someone Will Always Be Upset

There are many different strategies that testators, those preparing their will, employ in deciding who will inherit from their estate and how much they will be inheriting. Many parents are often uncomfortable with leaving their children unequal amounts of inheritance. Often testators believe that if they leave an unequal amount amongst the children that it may indicate that they loved or preferred one child over the others.

Hollywood Tragedy: A Life Lost Unexpectedly

Published on: June 28, 2016 | by Ettinger Law Firm

2016 will not relent in claiming high profile celebrities. This week’s death was as tragic as it was needless. Anton Yelchin, aged only 28, an only child, was killed in his Hollywood home’s driveway when his Jeep rolled down a slope and pinned him between a brick wall and the car, possibly due to a known defect in the Jeep. Mr. Yelchin, most prominently known for his starring roles in Odd Thomas and Charlie Bartlett, will be deeply missed by all.

An Estate Unplanned

There is no information currently available about whether or not Mr. Yelchin had a will or an estate plan when he passed, but if he is like the majority of Americans, chances are that he did not even have a simple will. According to a survey by Rocket Lawyer, 51 percent of Americans age 55 to 64 do not have wills. Even worse, 62 percent of those ages 45 to 54 have never drafted a will. The lower the age, the higher the chance that that person does not have a will.

Two Wills, Two Different Countries

Published on: June 25, 2016 | by Ettinger Law Firm

International Will Issues

As our world continues to grow and technology allows us to move places once never thought imagined, many individuals have the opportunity to live abroad throughout the course of their lives. After spending time in a specific area, whether it is for the majority of your life or for a shorter time, you may acquire property in that new place. However, when it comes to estate planning, issues may arise for a citizen who has acquired property in another country and has executed multiple wills for their multiple properties.

If you have property in another country, having a will in that jurisdiction disposing of that property generally will make it easier than if the property’s disposition is listed in a will in a different country, since it will increase the efficiency of estate administration for the property in that jurisdiction. However, if the testator has multiple wills in multiple countries, covering multiple pieces of land, he must write the most recent will in a way as to not revoke the previous foreign wills and subject the land to differing dispositions.

Keep It Close or Outsource It: New York Corporate Trustees

Published on: June 24, 2016 | by Ettinger Law Firm

Who you name as a trustee is possibly the most important decision that a person who decides to create a trust will make. The trustee is responsible for distributing income and principal to the beneficiaries of the trust according to the terms of the trust. This typically involves extensive recordkeeping, managing investments and property and being in contact with beneficiaries and other professionals to help manage the assets. Traditionally many people have named trusted individuals such as friends or family to administer the trust, but these days many people turn to corporate trustees for managing trust assets. What are the benefits of a corporate trustee over a personal trustee?

Personal or Corporate

Typically, many settlors, the person who brings the trust into existence, will name themselves, a family member or a friend as the trustee. After all, being a trustee is a major responsibility and failure to administer a trust properly may result in liability being taken on by the trustee, which is why it makes sense to name someone that a settlor has a lot of trust and a strong relationship with.

Back to Basics: Discussing Death and Your Estate In New York

Published on: June 22, 2016 | by Ettinger Law Firm

No one likes discussing their own demise. The topic is generally considered taboo amongst most people and is possibly the most uncomfortable conversation topic. This is unfortunate for everyone though, because if a person is unable to discuss their own death, chances are they are unwilling to plan for it either. That is one of the worst cases possible for not just for the person who fails to plan but their family members and people who rely on them as well. Discussing death is the first step to engaging people to plan their estate and while it is a difficult topic to broach, there are certain steps that a person can take to help bring people closer to planning their estate.

Do Not Put Estate Planning In Terms of Death

People looking to engage others about estate planning should not discuss death, rather they should focus on planning for incapacity. A good estate plan does not just encompass what happens when a person dies. It will also discuss plans for what happens when a person becomes incapacitated such as if they are in an accident and unable to communicate and are unconscious.

What To Do When There are Multiple Wills Written: Which Takes Precedence?

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

Over the course of your life, you go through many stages. For some people that includes moving to and from different states, entering or dissolving a marriage, having children, losing loved ones, and having significant changes in income. As these events shape your life, your outlook and perspective on how you want your assets to be taken care of may change. If you decide your wishes have changed and you execute a new will, you should carefully assess whether any previous wills or documents differ from the terms of your new will, as to make sure your wishes are properly followed.

Two Wills

Traditionally, in estate planning if a person leaves two wills and both are offered into probate, the court will look at the surrounding circumstances to determine which will ends up taking precedence and which will be considered revoked. The best way for the maker of the will to express that the most recent will is the one they want followed, is by explicitly revoking the earlier will in the writing of the new will. Issues can arise in probate court when it is not clear whether the maker of the will, also known as the testator, wanted the first will completely revoked.