New York Estate Planning & Elder Law Blog

Back To Basics: Witnesses and Your Will

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

It is common knowledge that in order for a New York will to be valid that there must be other people to witness you signing your will as well as putting down their own signatures on your will. Despite this knowledge though improper execution of the will is the most common reason that a will is found to be invalid.

Why Do I Need Witnesses At All?

Witnesses provide an important evidentiary function to the probate process. Witnesses to your signing can provide first-hand accounts of the execution of the will. If a will is ever contested, the witnesses can testify about the procedures that were followed when executing the will, the testamentary capacity of the testator as well as the mental capacity of the testator.

The Housing Issue and The Elderly

Published on: August 18, 2016 | by Ettinger Law Firm

There are many factors that go into maintaining a budget in a family while also trying to save for the future. For Americans, the cost of maintaining a household has gotten continuously more expensive; the average cost of raising a child born in 2013 now costs roughly $245,000 for a middle income family in the United States, with housing for the child accounting for about 30% of those costs. This is compared to a study done in 1960 by the United States Department of Agriculture that stated middle income families could expect the average cost of raising a child to be a little more than $25,000 until age 18. Interestingly in both studies, housing accounted for the largest expense for the families surveyed. The children once focused on in these 1960s studies have now become the focus of our article, and one thing remains the same, housing is still the biggest expense they must account for.

As the aging population refocuses their priorities for housing, they must consider factors such as accessibility to stores, services, transportation, medical care if they experience chronic conditions, as well as access to social settings and connections. The worry of many aging people is that they will be forced to leave their home and instead reside in an assisted living or nursing home in order to retain government assistance with healthcare. There will also need to be a refocus on the ability to provide for a more diverse population of elderly people; with the thousands of individuals turning 65 years old daily over the next two decades will come a much more diverse population that has had drastically different housing situations.

Possible Solutions

Springing and Durable Powers of Attorney

Published on: August 17, 2016 | by Ettinger Law Firm

The Durable Power of Attorney is a powerful estate planning tool that everyone should have. Properly drafted, a Durable Power of Attorney allows for the right person to be able to manage your affairs when you are physically or mentally unable to do so. However, a Durable Power of Attorney goes into effect once executed and generally grants someone else great power to make decisions for you and to enter into agreements on your behalf. Many people may be uncomfortable granting these powers to someone else while they are still capable of managing their own affairs. Is it possible to delay the effects of a Durable Power of Attorney?

What Is A Power of Attorney?

A Power of Attorney is a legal document that is used to delegate legal authority to another. The person who signs a Power of Attorney is called the Principal. The Power of Attorney gives legal authority to another person called the Agent or Attorney-in-Fact to make financial and legal decisions for the Principal. The authority that the Principal grants the Agent can be as broad or narrow as the Principal wishes. It is entirely dependent on what powers the documents grants the agent.

Common Estate Planning Mistakes

Published on: August 15, 2016 | by Ettinger Law Firm

Planning how your assets are going to be distributed and for your health care needs is an important tool all adults, not just elders should utilize. However, over 60% of Americans have not made a basic will. There are many misconceptions about estate planning and the reasons for it, which has led many Americans to shy away from the process.

Common Mistakes & Misconceptions

Estate planning is for the elderly or the wealthy. Determining how you want your property distributed or what you would like to happen to you in the event you can no longer speak for yourself are tasks everyone needs to think about. Even the most simple finances can become complicated when there are multiple parties involved.

The Rapidly Disappearing Inheritance

Published on: August 15, 2016 | by Ettinger Law Firm

Beneficiaries Often Treat An Inheritance As A Windfall And Spend It As Such

You spend your entire life working hard, accumulating wealth and you want to pass it onto your children, to provide for them and their families after you have passed. But will they appreciate your life’s earnings or will they blow through it without a second thought? Unfortunately, more likely than not any inheritance that you leave behind will most likely be spent much faster than it was earned, and the statistics are alarming.

“From shirtsleeves to shirtsleeves in three generations” the old saying goes and the research shows that the sentiment is true. One third of people who received an inheritance had negative savings within two years. Even if the wealth does last past the first generation to receive it, 70 percent of inheritances are completely gone by the end of the second generation.

The Power To Establish A New Domicile

Published on: August 13, 2016 | by Ettinger Law Firm

An Often Overlooked Power in Durable Power of Attorney Documents

Your elderly mother lives and intends to continue residing in Florida. You live in New York. She becomes mentally incapacitated and you move her in with you to take good care of her. You are her agent as designated by her Durable Power of Attorney documents and you manage and handle all of her affairs like taking her to the doctor and getting her the attention she needs but you start to run into some problems when you attempt to enroll her in your state’s Medicare program and other entitlement programs. The power of attorney documents do not give you the power to establish her domicile. Even though your mother resides in New York now she still is domiciled in Florida and only qualifies for assistance in Florida.

How do you establish a new domicile and what is a domicile? Traditionally, establishing a new domicile is easy. Wherever you consider home, the place you intend to indefinitely stay, is your domicile. Proof of being domiciled in a certain state typically includes where your primary residence is, where you vote and where your family and children live. This is different from where your residence is. You can have multiple residences but only one domicile.

Divorce: It’s Influence on Your Estate Planning

Published on: August 11, 2016 | by Ettinger Law Firm

Making a will can be a time consuming process that involves the interest of a potentially large amount of people. One of these interests is that of the testator’s spouse. A surviving spouse is generally presumed to be the first heir to which asset distribution goes to in the event property or assets are not accounted for in the will. However, not all marriages work out and when this happens, the terms of distribution in your will can be greatly affected, depending on the state you live in.

New York Law For Wills

There are three scenarios for will distribution to a former spouse in the event of divorce: the divorce automatically revokes the entire will, it only revokes the testamentary provisions making gifts to your former spouse, or it does not affect your will at all. In New York, upon the final divorce decree, all provisions or bequests to your former spouse are revoked, if the will is still valid. If you are still legally married but your spouse has abandoned you up until the time of your passing, the court will also view this the same way as divorce, and disinherit the spouse.

Highs or Lows: Which is Best When Valuing Art and Collectibles?

Published on: August 8, 2016 | by Ettinger Law Firm

Art pieces and collectibles can often be difficult to price. After all, the best and easiest way to price an item is to see what other items like it have sold for. But in these cases, art and collections can be one of a kind and have no comparison. When this happens it can be a headache for a person planning their estate to account for the value of aesthetic beauty and rarity of their art. In this uncertainty though, there is room to maneuver to your advantage when it comes to planning out your estate.

Valuing Your Art

In the United States, if you are attempting to transfer a work of art valued over $50,000, the IRS goes through a process by which it independently evaluates the items. It is the IRS Art Advisory Panel who will have the final say when it comes to evaluating the value of your art, but this does not mean that they will not accept outside opinions. Traditionally art is valued by experts who work in the field, often those with very special niches, sometimes even down the individual artist. When an independent expert values your art, you can submit that assessment to the IRS for consideration.

Determining Incapacity in New York

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

Many people believe that estate planning is primarily a tool to minimize taxes by the state and ensure that your assets are passed on to the people you want them to go to. However, an important part of estate planning is ensuring that when you are incapacitated that your wishes will be respected and that you are taken care of when you cannot adequately express your wishes or provide for yourself. But how exactly is that decision made in New York? Who decides when you are incapacitated and when you will need someone else to make your decisions for you?

Your Living Will or Healthcare Directive Can Dictate The Terms of Your Incapacity

The best option for setting forth standards to decide when you are incapacitated is making sure that you are the one dictating the terms of your own incapacity. This can be accomplished through your living will, also known as a healthcare directive. Your living will traditionally acts to provide those making your healthcare decisions with your wishes as to how you would like to be treated in medical situations where you cannot give consent.

Technology Aiding the Aging Population

Published on: August 3, 2016 | by Ettinger Law Firm

As the older population continues aging, we are constantly trying to find new tools to help this population manage their lifestyle with more ease. Assistive technology is any service or tool that aids the aging population in performing their otherwise increasingly difficult or impossible daily activities. This technology ranges from a smartphone, to a walker to GPS tracker, many of which allow the individual to continue living independently or without care, while also allowing their loved ones to check on them.

Paying for Technology

As with any other medical assistance, insurance coverage is always a concern. Although there is no universal plan covering assistive technology for the aging population, some plans do cover a portion of the costs. Medicare Part B will cover up to 80% of the cost of technology that can be considered medical equipment. Also if you are eligible with the Department of Veteran’s Affairs for assistance, they will pay for a portion of the cost and will also help train those who are using the device.