New York Estate Planning & Elder Law Blog

Contesting a Will

Published on: April 26, 2023 | by Ettinger Law Firm

In order to contest a will, the objectant must have “standing”, meaning they would legally be entitled to a share or a greater share of the estate if the will was declared invalid. “Standing” alone, however, is insufficient. There must also be grounds for contesting as provided below.

1. Undue Influence: Independent caregivers and caregiver children who end up being named primary beneficiaries under the will are often scrutinized for having prevailed upon the decedent to leave them the lion’s share of the estate. The various means alleged may be physical or mental abuse, threats and isolation of the disabled person. Even non-caregivers who had influence over mom or dad may be challenged where they end up with more than their fair share. As with any court proceedings, proof of the claim will need to be made.

2. Improper Execution: The formalities for executing a will must be strictly observed. The formalities include that the witnesses believed the decedent was of sound mind, memory and understanding. There must be two witnesses who signed in the presence of the testator and of each other. The testator must declare in front of the witnesses that they read the will, understood it, declare that it is their last will and testament and approve of the two witnesses to act as witnesses to the will.

If You Don’t Understand the Plan, You Don’t Have a Plan

Published on: April 19, 2023 | by Ettinger Law Firm

So many people who come in to see us do not understand the estate plan they have or do not know what is in their current plan. Some of the reasons for this are (1) time has inevitably blurred their memories, (2) the plan may be written in legalese and was never properly explained to them, (3) they may have misconceptions and misunderstandings of what their plan is; and (4) their lawyer may have lacked the knowledge required to find the right solution for their family in the event of death and disability. To this we say, “if you don’t understand the plan, you don’t have a plan.”

Ettinger Law Firm developed a process, in use for over thirty years, to avoid these problems. First, we offer a free initial consultation to go over the pros and cons of having a will or a trust and the differences between revocable and irrevocable trusts. So many people have misconceptions about trusts based on what friends have said or what they have read on the internet. For example, many clients are afraid to create an irrevocable trust because they think they will lose control. We explain why that is incorrect and how you can still change the trustee, change who you leave it to, take money out and even how you can revoke an irrevocable trust!

After the overview provided in the initial consultation, we give you a copy of our plain English book, “Elder Law Estate Planning”, and advise which chapters apply to your situation — maybe an hour or so of reading. We also invite you to watch the thirty minute estate planning video at trustlaw.com.

Polypharmacy in Older Adults

Published on: April 6, 2023 | by Ettinger Law Firm

According to the National Institute on Aging (NIA) polypharmacy is the use of multiple drugs to treat diseases and other health conditions. Polypharmacy is common in older adults, many of whom have two or more chronic conditions, and about a third of whom take five or more prescription drugs. Often, these different powerful drugs have been prescribed by different doctors. Some drugs mask or neutralize others, some are dangerously incompatible with others and some may worsen conditions that naturally occur in the aging population — such as loss of appetite, less efficient digestive systems and increased cardiovascular risk.

Inappropriate polypharmacy — the use of excessive or unnecessary medications — increases the risk of adverse drug effects, including falls and cognitive impairment. Harmful drug interactions and drug-disease interactions may also occur, where a medication prescribed to treat one condition worsens or creates a new one.

Enter the new field of “deprescribing”. The NIA is developing a network of scientists to advance the field of deprescribing to improve the quality of care and health outcomes for older adults. According to Parag Goyal, MD, “despite its role as an integral part of patient-centric and goal-concordant prescribing practice, deprescribing is not frequently incorporated into routine clinical practice”.

The Five Steps to an Elder Law Estate Plan

Published on: March 22, 2023 | by Ettinger Law Firm

Elder law estate planning provides for (1) your care in the event you become disabled as you age, and who will be in charge of that care, and (2) the passing of your assets on death to whom you want, when you want, the way you want, with the least amount of taxes and legal fees possible. These are the five steps to creating such a plan.

Step One: Understanding the Family Dynamics. Clients often overlook the inestimable value of getting to know the family dynamic. We are firm believers that the social goes first and the legal should serve the social. Too often it is the other way around. Once we understand who’s who and everyone’s interpersonal relations with each other, we are far better able to craft a plan that will work socially as well as legally. The failure to address the social aspects has led to many a plan tearing the family apart.

Step Two: Reviewing the Client’s Assets. IRA’s and other “qualified” assets (i.e. tax deferred) are treated quite differently, on death or disability, from “non-qualified” assets. The determination of the amount and value of all assets, who owns them, and whether they have named beneficiaries are of the utmost importance in planning correctly, including saving legal fees and taxes.

Trusts Create Order Out of Chaos

Published on: March 17, 2023 | by Ettinger Law Firm

At Ettinger Law Firm, we are fond of saying “trusts create order out of chaos” — for three major reasons:

First, as noted in previous columns, an ever-increasing number of Americans suffer a period of legal disability later in life. Without your own private plan for disability, consisting of a trust and a “prescription strength” elder law power of attorney, you run the risk of a state appointed legal guardian. Do you want the people you choose to be in charge in the event of your disability, with the freedom to act immediately in your best interests, or do you want the state to appoint someone who will require court permission to protect your assets and your family — which permission is sometimes denied. A guardianship proceeding is expensive, time-consuming and stressful — in other words, chaotic. Trusts create an orderly process whereby your appointed trustees consult with your elder law attorney and are free to act immediately without court interference.

Secondly, trusts avoid probate court proceedings on death whereby wills, even though supervised by an attorney, with two witnesses and a notary, must first be proven to be valid in court proceedings. The client has no control over probate court proceedings – the time they will take or the amount they will cost. Typically, it takes months and, not unusually, one to two years or more. Meantime, property cannot be sold and assets cannot be reached to pay bills. In other words, chaos. With a trust, the trustee may act immediately upon death, list property for sale and access investments and bank accounts.

Death with Dignity: Hospice Care

Published on: March 14, 2023 | by Ettinger Law Firm

The recent announcement by 98 year old Jimmy Carter, our long-lived president, that he was opting for hospice care at home instead of additional medical intervention, is in keeping with the trend towards dying with dignity. Hospice care arises when an illness is either no longer responding to medical treatment, no medical treatment is available, or the patient has decided they want to transition from treatments intended to prolong quantity of life to treatments intended to improve quality of life.

One of the great misconceptions about hospice care is that it is the cessation of medical care. Dr. Sunita Puri, author of “That Good Night: Life and Medicine in the Eleventh Hour” defines hospice care as “intensive comfort-focused care, provided with the goal of minimizing the physical, emotional and spiritual suffering that patients and their families experience when somebody has possibly six months or less to live.” While hospice can usually take place at home it can also be in a facility and is paid for by Medicare Hospice Benefit.

The hospice “team” consists of (1) a nurse to assess and manage pain and provide hands-on-care, (2) a social worker, to offer emotional support and help with planning, (3) a physician to interface with the patient’s primary physician and consult on pain and symptom management and make house calls, (4) a hospice aide to help with personal care needs, such as bathing, (5) clergy to offer spiritual support, (6) volunteers to help in a variety of ways, and (7) a bereavement specialist to provide grief and loss counseling.

Battling the Epidemic of Loneliness

Published on: February 28, 2023 | by Ettinger Law Firm

According to former Surgeon General Vivek H. Murthy, MD, loneliness poses real threats to both mental and physical health, including depression and anxiety, addictions, heart disease and dementia. His book “Together” reveals that loneliness affects about one-quarter of adult Americans, and “The reality is that loneliness is a natural signal that our body gives us, similar to hunger, thirst. And that’s how important human connection is.” Such is the public health crisis, that in the UK the government has appointed a Minister of Loneliness to help combat the problem.

One of the best ways to overcome loneliness is to volunteer. AARP Foundation Experience Corps reports that 85% of volunteers felt their lives had improved through their volunteering efforts.

Here are some suggestions and resources gleaned from Val Walker’s ground-breaking book “400 Friends and No One to Call” subtitled “Breaking Through Isolation and Building Community.”

When Does a Trust Make Sense

Published on: February 17, 2023 | by Ettinger Law Firm

By now most people know that trusts avoid probate which is required with a will — if there are “probatable” assets, in other words those in your name alone. While many assets can be set up to avoid probate by putting joint owners on or by naming beneficiaries, titles to real estate in New York may not have beneficiaries and there are tax and liability reasons for not naming joint owners on real estate. As a result, real property generally goes through probate.

Other reasons to use trusts, besides avoiding probate for the home, are as follows:

Out-of-State Property. New York residents who own property in another state face two probates, one in New York and another in the other state. However, you may transfer both properties into your New York trust and avoid the “multiple probate problem”.

Book Review: Let’s Talk About Death, by Michael Hebb

Published on: February 9, 2023 | by Ettinger Law Firm

In his invitation and guide to life’s most important conversation, as he puts it, author Michael Hebb seeks to address the fact that “the way we die in the modern age is broken.” Almost unique to American culture, the denial of death has ripple effects in depleting our skills to discuss death and to process the loss of a loved one.

Perhaps this is why (1) although 80% of Americans say they want to die at home, only 20% do, and (2) the leading cause of bankruptcy in the United States is the cost of end-of-life care. Most people do not want extreme measures that only prolong suffering leading to death. However, so few of us have talked to our families about our wishes nor have we been asked, leading to the medicalization of end-of-life.

Given the right framework, these conversations can be liberating and even transforming — bringing people together and reminding us what really matters. While death is often tragic and terrible, there are opportunities to learn and grow — by making us more aware of life’s precious gift, making us kinder and bringing us closer to one another.

Better Sleep for Seniors

Published on: January 26, 2023 | by Ettinger Law Firm

While sleep is essential for mental and physical health, aging presents some sleep challenges. About half of all seniors report a sleep problem such as taking longer to fall asleep, shorter sleep, waking up often and napping more and longer. As we age, our body clock deteriorates and melatonin (a sleep inducing chemical) levels decline. To increase the amount and quality of sleep, the three main factors are (1) routine, (2) sleeping environment, and (3) diet and exercise.

Routine: A consistent evening routine works best for sleeping. Going to bed at the same time and “winding down” makes a considerable difference. Avoid uses of electronic devices such as smartphones and television as they emit “blue light” which inhibits melatonin production and can upset body rhythms. Blue light blocking lenses may avoid this problem.

Sleeping Environment: Cooling down the bedroom can lead to better sleep. If the thermostat is out of your control, a fan will help. Light should be just enough to allow you not to trip and fall should you need to get out of bed. Darkness options are blackout blinds or curtains and covering any electronics that emit light. An eye mask can work wonders too. Outside noises or partners who snore can disturb sleep. Consider “white noise” machines or spa-like recordings to help you sleep. Like the eye mask for light, consider ear plugs for noise. While a firm, comfortable mattress and quality pillows with breathable fabrics are essential, there are other high-tech options that may assist, such as mattress and pillows that adjust their temperature as yours changes. Many people report a weighted blanket works wonders.