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Estate Planning and Elder Law Blog

Is a Trust Right for Me?

Is a Trust Right for Me?

A common misconception in the arena of Estate Planning is that trusts are only for people with large amounts of money, trying to avoid taxes. It is first important to understand that there are many different types of trusts, each serving a different purpose.  One type of trust, a Revocable Trust, serves only to avoid the probate process after death.  Many of our clients choose to create a type of irrevocable trust known as a Medicaid Qualifying Trust or a Medicaid Asset Protection Trus more »

Trusts for Mommy and Me

Trusts for Mommy and Me

Question:  My mother has a trust that protects her house in case she needs long term care in a nursing home.  Is this legal?  Also, when she dies the trust is paid to another trust for me.  Do I need this?  I am only 53 and my mother is 75.  Answer: I assume what you are describing is an Irrevocable Medicaid qualifying trust.  Based upon that assumption, the trust is a very common and effective way to protect assets in case your mother later needs nursing hom more »

Changing Beneficiary Designation using Power of Attorney

Changing Beneficiary Designation using Power of Attorney

Q: My mother recently passed away. She had two children, myself and my sister. Prior to her death, she had named my sister as agent under her power of attorney. My mother’s will treats both of us equally. I found out that a month before her death my sister used the power of attorney to change the beneficiary on my mother’s bank account to just herself. Was she allowed to do this? A:  The general rule is that the agent under the power of attorney must act in the utmost good fait more »

Immediate Need Medicaid

Immediate Need Medicaid

Q: My mother has been in a rehabilitation facility for the last 6 weeks and will be discharged any day now.  She is unable to care for herself and we desperately need help at home. I want to apply for Medicaid to help pay for the care, but I heard this can take months.  Is there a way to get the care in place faster?   A: There are two ways to get homecare Medicaid in place.  The first is to submit a regular Medicaid application, which often takes several months before the more »

Do I Really Need a Bypass Trust?

Do I Really Need a Bypass Trust?

For a traditional married couple, the estate planning has become simpler in many ways.  Before the estate tax was increased on both the State and Federal level, we were fixated on saving estate taxes.  Using simple techniques like bypass and marital trusts and insurance trusts called ILIT’s, were the gold standard in estate planning.  Today many of those types of plans are irrelevant and maybe even harmful in an estate plan.  Bypass trusts are trust created in the est more »

Surrogate’s Court Procedure Act

Surrogate’s Court Procedure Act

Q: My sister wants me to sign a document that allows her to probate my mother's will. The problem is that the will favors my sister, and I think the circumstances around the will are suspect. Is there a way I can get more information about the will signing?  A: The document  that  your sister is asking you to sign is called a Waiver of Process;  Consent to Probate. The purpose of the Waiver is twofold. First, by signing the Waiver you are consenting to the Will being admit more »

Veterans Benefits

Veterans Benefits

Question: I heard that there has been a change in Veteran’s Benefits recently, is this true? Answer: Yes, that is correct.  Specifically, the Pension system, most often referred to as “Aid and Attendance” has been revamped.  New asset and income levels have been created and for the first time with this type of benefit a three year look back now applies.  In order to be eligible for the pension program the veteran must have served during specific wartime periods more »

Garn-St Germain Depository Institutions Act

Garn-St Germain Depository Institutions Act

Question: I have created a Medicaid Qualifying Irrevocable Trust and I am attempting to transfer my home to my trust. The bank which holds my mortgage has advised that they do not allow transfers to Irrevocable Trusts. Can they prevent me from protecting my house?  What can they do? Answer: No, your bank should allow the transfer of your home to you Irrevocable Trust. First, it is important to understand why your bank is pushing back on this transfer. Your bank is likely claiming that this more »

Special Needs Trusts

Special Needs Trusts

Question:  I have two daughters, one of them has special needs and receives benefits.  I have been told that I have to disinherit them from my will so that if something happens to me they won’t lose these benefits, is that true?   Answer:  No, it is not correct that you must disinherit your daughter. However, it is important when drafting your will or other estate planning documents to make certain provisions so that, at the time of your passing, any inheritance will more »

Inheritance

Inheritance

Inheritance is the practice of passing property upon the death of a decedent.  The rules of inheritance differ from state to state.   In New York, a decedent generally cannot disinherit his spouse.  This principle is governed by Estates, Powers and Trusts Law Section 5-1.1-A (Right of Election by Surviving Spouse) and requires that the surviving spouse receive a portion, or share, of the decedent’s estate.  The surviving spouse’s share will be equal to the g more »

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