New York Estate Planning & Elder Law Blog

Clark Case Provides Lesson on How to Avoid Family Estate Planning Disputes

Published on: April 7, 2022 | by Ettinger Law Firm

In the recent case of Clark v. Clark, two brothers initiated legal action against another brother concerning the other brother’s ability to function as trustee of a trust as the result of a brain injury. The men’s mother established a testamentary trust previously that held family business and appointed the third brother as trustee. The will stated that if anything happened to the third brother, the other two brothers would be designated as co-trustees. The two brothers claimed that due to the brain injury, the third brother could no longer function in this role. As a result, the two brothers thought to be named successor co-trustees under the will.

While the court also considered a nuanced injunction issue, the court ultimately relied on a plain text reading to determine that due to the third brother’s brain injury, the brother had stopped or was not capable of functioning as a trustee and that the other two brothers were appointed successor co-trustees.

What Makes Succession Planning Critical

7 Limitations to Medicare

Published on: April 7, 2022 | by Ettinger Law Firm

With more people approaching the age of 65, a growing number of people are considering the potential benefits available from Medicare as well as other insurance options. Medicare A plays the critical role of paying for hospital stays as well as other services like skilled nursing facilities and hospice care. Meanwhile, Part B assists with physician visits and outpatient care.

If you’re close to enrolling in Medicare, you should consider what Medicare covers. By learning what Medicare covers now as well as what it doesn’t, you can begin thinking of alternate strategies to make sure that you receive all of the appropriate care that you need.

Prescriptions

Coronavirus Deaths Encourage New Elder Law Guidelines

Published on: April 7, 2022 | by Ettinger Law Firm

Delegates for the Association for Behavioral Analysis’ recently approved several guidelines related to the news of older people in the United States during the Covid-19 pandemic.

One of these proposals, Resolution 603, adopts recommendations from a Guardian Summit and ultimately encourages all regulators to incorporate these measures when revising guardianship laws. The spokesperson who introduced the measure stated that more individuals have grown cognizant of it, but that guardianship is a widespread issue.

The proposals made during this meeting are best divided into several areas: the rights of guardianships, assisted decision-choosing, restricted guardianship, arrangements providing protection, diversions of pipelines, monitoring guardianships, facing abuse, fiscal responsibility, fiscal hardships, and guardianship improvement.

Understanding Special Administrators: Lessons Learned from In Re Estate of Jones

Published on: March 24, 2022 | by Ettinger Law Firm

The South Dakota Supreme Court recently reversed a circuit court’s order denying a petition pursuing appointment of a special administrator to seek a wrongful death claim for a deceased man’s estate. The Supreme Court held that the circuit court abused its discretion in failing to address certain discovery motions before deciding a special administrator petition.

After the man in question passed away, the circuit court decided that the deceased man’s surviving wife should function as his estate’s personal representative. The man’s children then petitioned for appointment of a special administrator to seek a wrongful death claim for the deceased man’s estate and later served discovery requests on the surviving wife pursuing information related to the petition. The court then denied the special administrator petition and found that the discovery issues were moot.

The Supreme Court reversed the circuit court’s decision and held that the circuit court gave the man’s children the chance to develop and later present evidence connected to their petition.

The Residential Property Condition Disclosure Act and Estate Planning: Lessons Learned from Rickard v. Coulimore

Published on: March 24, 2022 | by Ettinger Law Firm

In the recent case of Rickard v. Coulimore, the plaintiff purchased the subject residential real estate from a living trust. The plaintiff then initiated against the trust owners over damages connected to defects in the property that they had failed to disclose.

The Oklahoma Supreme granted certiorari to assess an interlocutory order to decide whether the transaction was excluded from the Residential Property Condition Disclosure Act. The court determined that the transaction represented a transfer by a fiduciary who was not an owner-occupant of the real estate in the court of a trust’s administration and that the transaction was exempt from the Act. As a result, the court affirmed partial summary judgment in regards to the inapplicability of the Act, and the case was remanded for additional proceedings.

The Role of the Residential Property Condition Disclosure Act

Estate Planning and Former Spouses

Published on: March 24, 2022 | by Ettinger Law Firm

Over half the marriages in the United States result in divorce. For many people, divorce ends up being one of the most difficult experiences in their life. As a result, when attorneys present a person with divorce paperwork, this individual often fails to consider every little detail of how it will impact their life and does not update their estate plan. Unfortunately, failing to update estate planning documents after divorce could lead to many undesirable complications

A Hypothetical Situation

Imagine, a couple who got married in 2005. The wife had one daughter from a previous marriage. Even though the husband never officially adopted the girl, he treated the girl as she were his daughter during the marriage. A joint trust even referred to the girl as the couple’s “only living child” and named the girl as a residuary beneficiary. These terms have substantial meaning under the law and not considering these statements after a divorce can create substantial challenges.

Updates Made to State Voting Laws for People with Limited Capacity

Published on: March 24, 2022 | by Ettinger Law Firm

Fewer rights are more fundamental than the right to vote in the United States. Unfortunately, many people take the right to vote for granted. People who face limited capacity or who are currently under guardianship, however, experience substantial challenges in regards to voting. Many states even restrict and some bar voting rights for individuals faced with limited capacity.

The Types of Voting Rights

State laws addressing the voting rights of individuals fall into three categories: states constitutional provisions addressing who can vote, states with voter registration laws, and states with guardianship laws. Many recent changes have occurred in states to incorporate more current language concerning disabilities as well as capacity and guardianship. Because state statutes are notoriously hard to revise, many of them are still outdated.

Dobson Highlights Challenges with Medicare Part D Medication Coverage

Published on: March 24, 2022 | by Ettinger Law Firm

On February 11, 2022, the appellate court for the 11th circuit reversed a decision by a lower court. The appellate court in Dobson v. Secretary of Health and Human Services held that Medicare must provide coverage for a beneficiary’s off-label use of a medication.

How the Case Arose

The case concerns a Florida man who communicated with the Center for Medicare Advocacy because the man’s Part D Medicare coverage declined dronabinol coverage. Dronabinol is a man-made type of cannabis that is known under the trade names of Marinol, Reduvo, and Syndros. The medication is used to stimulate appetite as well as to treat nausea and sleep apnea. The medication is approved by the FDA for the treatment of HIV/AIDS-related anorexia and nausea and vomiting caused by chemotherapy.

What to Consider Following the Increase in the Annual Gift Tax Exclusion

Published on: March 14, 2022 | by Ettinger Law Firm

In 2022, the annual exclusion for federal Gift Taxes was increased to $16,000 per individual annually. Even though a near-universal acceptance exists that gift-giving can play an important role in estate planning, a person should consider various issues before making gifts.

The way that gifts are made can have a substantial impact on beneficiaries. This is especially true if the party who receives a gift is below the age of 21. Direct gifts made to young people can have their own challenges which include exposure to creditors and limited control over how gifts are made. Consequently, it’s a wise idea in these situations to consider placing gifts in a trust.

The Danger Behind Direct Gifts

Crisis and Estate Planning Documents

Published on: March 14, 2022 | by Ettinger Law Firm

The 2020s have been filled with tension. First, in 2020, the Covid-19 pandemic emerged. Then, race tensions hit an all-time high following the death of George Floyd and several others. Now, the invasion of Ukraine has left many people in more difficult situations than ever before. All of these events are enough to make even the calmest person uneasy.

The most seasoned estate planning professionals are used to addressing two major sources of uneasiness with clients: death and taxation. Planning for these certain events will help to reduce the uneasiness that a person feels. While it’s impossible to control the future and the state of the world, people can engage in thorough estate planning and be fully prepared for any complications that might happen and impact their estate plans.

Estate planning frequently attempts to pass or minimize risk. Some of the most helpful risk-avoiding or risk-shifting techniques that people utilize in an estate planning environment include: