New York Estate Planning & Elder Law Blog

5 Things You Should Know About Adult Guardianship

Published on: March 26, 2021 | by Ettinger Law Firm

Guardianship is a court process. Guardians are only appointed if an individual is deemed to be incapacitated. The determination of incapacity is made using either a physician or a psychologist. If incapacity is only temporary, a temporary or emergency guardian is appointed. To navigate the guardianship process, it’s helpful for appointed individuals to be as informed as possible. As a result, this article reviews some critical details to appreciate the nature of these arrangements.

# 1 – How to Decide a Family member Needs a Guardian

Sometimes, disability or injury make it challenging for a person to make decisions related to health care, finances, or living situations. These situations might include a loved one who ends up in a coma, someone who is mentally challenged, someone who has suffered a stroke, or someone with a brain injury. If a court assesses that a person can no longer make life decisions, the court will hold a hearing addressing that individual’s competency. To decide whether a person is incapacitated, courts will hold a hearing to review all of the available facts.

4 Reasons Why Everyone Needs an Estate Plan

Published on: March 24, 2021 | by Ettinger Law Firm

Each year, the news is full of stories about high-value celebrities who pass away without adequate planning and as a result, have assets that end up tied in lengthy and costly legal battles. While many people have estates smaller than well-known celebrities, estate planning is critical for these individuals. After all, many people see value in passing on assets and helping family members. While people often realize the value in estate planning, a common mistake is made in failing to establish any type of estate plan.

While everyone should create an estate plan, it’s understandable that people delay creating them. After all, estate planning almost always involves considering the terms of your death, which can be a difficult thought for many people to consider. Despite the potential excuses, if you pass away or become incapacitated without an estate plan, your estate can end up experiencing undesirable results. This article reviews some critical reasons why you likely need to create an estate plan.

# 1 – Articulating Your Goals

4 Estate Planning Techniques to Consider During the Covid-19 Pandemic

Published on: March 18, 2021 | by Ettinger Law Firm

The pandemic has created substantial challenges for many people and disrupted countless facets of daily living. Low-interest rates and depressed asset values, however, have created an ideal situation for estate planning. If you’re interested in planning for the future, there are some unique estate planning strategies that you should consider utilizing. This article reviews just a few of the most potentially helpful techniques that you should consider using during the Covid-19 pandemic.

# 1 – Annual Gift Tax Exclusions

This amount refers to the amount that a person can give away each year without being subject to taxes. Currently, a person can pass $15,000 in assets tax-free to any person in any one year. This amount applies to how much can be given to one individual, which means that a person could make an unlimited number of gifts below this amount to various people without being subject to taxation.

5 Mistakes in Trusts Or Wills that Courts Might Correct

Published on: March 18, 2021 | by Ettinger Law Firm

The value of carefully drafting a trust or will is emphasized by understanding the limited situations in which a court corrects mistakes that might arise in trusts or wills. The court’s response varies based on not the jurisdiction, but also often the type of estate planning mistake that was made. This article reviews some critical details to understand how New York courts various estate planning errors.

# 1 – Distinguish Capacity and Undue Influence from Mistakes

If a mistake is the result of the lack of competence by the testator or if the testator under the undue influence of someone else, courts often apply a different test to assess whether the will or estate planning document should be set aside. It’s sometimes the case that the concepts of undue influence, fraud and mistake are joined together, which can lead to substantial confusion.

4 Pieces of Estate Planning Advice for Second Marriages

Published on: March 14, 2021 | by Ettinger Law Firm

People in second marriages often are placed in the difficult position of balancing the wellbeing of their spouse with the needs of their children. Deciding what estate planning strategies to utilize to care for both spouses from second (or additional) marriages and children can be challenging. In the hopes of guiding you through this situation, this article reviews some important issues to consider about estate planning during a second marriage.

# 1 – Comingling Assets

By the point that many people enter second or subsequent marriages, they’ve acquired some amounts of assets. Consequently, spouses must decide whether to combine these assets or keep them separate. While people who want to make sure a new spouse receives assets might decide to commingle assets, people who want to designate assets for children from a previous marriage or relationship might decide to keep assets separate.

3 Questions about Guardians After Framing Brittney

Published on: March 12, 2021 | by Ettinger Law Firm

Following the recent documentary, Framing Britney Spears, as well as the increased media focus on the matter, Brittney Spears has become a common subject of conversations in 2021. It’s not Spears’ music this time that’s making headlines, though, it’s Spears’ conservatorship.

In 2008, Spears’ father was appointed conservator for Brittney’s financial and personal decision. Over a decade later, a professional fiduciary was appointed to assume Mr. Spears’ position due to health issues the elder Spears currently faces.

Based on allegations, Ms. Spears’ conservatorship still exists but Ms. Spears no longer wants her father to function in such a role. Following a February 2021 hearing, a judge decided that Ms. Spears’ father as well as the professional fiduciary would share conservator roles.

Maxey v. Maxey: 3 Takeaways about Placing Real Estate in Trusts

Published on: March 10, 2021 | by Ettinger Law Firm

In the recent Texas appellate case of Maxey v. Maxey, a dispute occurred involving the probate of an estate in which two sisters mediated and reached a settlement agreement addressing the division of real property. The two sisters disagreed on how to divide property among several trusts and as a result initiated legal action against one another. Following mediation, the sisters entered into a settlement agreement to divide real estate. The parties then disagreed on what the settlement agreement meant and again initiated legal action against each other. The trial court ultimately found that the settlement agreement’s terms were ambiguous and submitted the meaning of an agreement to a jury. Following a jury trial, the losing sister appealed.

The court of appeals later reversed this decision and held that the settlement agreement was not ambiguous. The court instead found that language used was not reasonably susceptible to multiple meanings. Because the language in the settlement agreement was found not to be ambiguous, the court found that the jury should have determined the parties intent as a matter of law and did not need to rely on extrinsic evidence. Consequently, the court remanded the case back to trial court to construe the settlement agreement and properly divide the real estate.

When trusts and estate cases arise involving real estate, parties often must mediate and settle disputes. One of the valuable takeaways from the Maxey case is that it emphasizes that parties can enter into enforceable and unambiguous settlement agreements that divide real property provided that they create adequately detailed descriptions. Fortunately, besides stating property descriptions, there are also some other helpful steps that parties can follow to avoid trusts and estate planning contests or disputes.

3 Things to Consider about Handwritten Wills in New York

Published on: March 8, 2021 | by Ettinger Law Firm

Following his passing on January 23, 2021, Larry King’s widow remains locked in a dispute with the late celebrity’s son concerning the distribution of King’s assets. While estate battles are often challenging, this case is particularly complex for several reasons. One, a divorce was pending between Larry King and his widow. Additionally, King’s widow alleges that she recently discovered the late celebrity had a “secret” bank through which he gave over $266,000 to his son.

On February 10th, Larry King’s son filed an ex parte application to become the special administrator of his father’s estate. In support of his argument, King’s son submitted a holographic will that’s dated two months after King filed for divorce in 2019. King’s more formal will, however, names his widow as executor of his estate. King’s widow also argues that the late celebrity didn’t act like he wanted a divorce and that the couple had gone to counseling.

Much consideration has been given to Larry King’s holographic will. The one-page document is dated October 17, 2019, and states that Larry wants 100 percent of his funds to be divided equally among his five children and that the will should replace all previous writings. King’s widow argues that even if this document is found to be valid, it will change little. King’s widow also argues that during the last few years of his life, King was highly susceptible to outside influences, and at the time he executed the holographic will was of questionable mental capacity. As a result, King’s widow requests the court to reject Larry King’s son’s petition to be appointed special administrator and to deny admission of the holographic will.

5 Things to Consider About Nursing Home

Published on: March 7, 2021 | by Ettinger Law Firm

Data reveals that approximately 70% of all adults in the United States who will live to the age of 65 will require long-term care. Because many of these older adults do not require the full degree of care provided by nursing homes or have limited finances, it is important to realize that alternatives to nursing homes exist.

# 1 – Assisted Living

Assisted living facilities are often an excellent solution for elder individuals who want a mixture of both privacy as well as community interaction.

4 Pieces of Advice About Selecting an Assisted Living Facility

Published on: March 5, 2021 | by Ettinger Law Firm

Assisted living facilities provide elderly individuals with a stepping stone between independent living and the more intensive care provided at nursing homes. Elderly individuals can receive assistance with things like cooking, cleaning, and hygiene at assisted living facilities while still maintaining personal independence.

Deciding whether your loved one would benefit from an assisted living facility, however, is a complex process. As a result, this article reviews just some of the most critical factors that should be reviewed when deciding whether your loved one should be placed in an assisted living facility.

# 1 – Size