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2014 Articles

Can We Avoid Capital Gains

Question: I am considering creating an Irrevocable Trust to protect my house and other assets, but I am concerned about creating a situation where my children will have to pay Capital Gains tax. Answer: An "Irrevocable Trust' can offer the creator, often referred to as the  “grantor,” lifetime control over his or her assets, without creating a capital gains issue so long as the trust is a Grantor Trust for income tax purposes.  Certain provisions within the trust creat more »

Consenting to a Probate of a Will

Q: My mother recently passed away and I received something in the mail from an attorney’s office called a “Waiver of Process; Consent to Probate”, what does this document mean? A: You received this document because the nominated Executor is trying to “probate” your mother’s Will.  Probating a Will means that the nominated Executor is submitting a petition to Surrogate’s Court and asking that the Court issue “letters testamentary” wh more »

UTMA and 529 College Accounts

Q:  My parents set up UTMA and 529 College Savings accounts for my children.  I am not sure exactly what effect these accounts have on their financial aid in the future or whose assets they are if my parents need nursing home care. A: UTMA, or the Uniform Transfer to Minors Act are custodial accounts that are set up by an adult on behalf of a minor. All the money and assets in these types of accounts are turned over to the beneficiary’s control at the age of 21. Once the benefic more »

Outright Transfer of Home

Question: My friend suggested that I transfer my house to my children in case I need nursing home care in the future. Is this advisable? Answer:  In almost all cases our answer to this question is no. Your friend is likely suggesting this because she has heard of the five year look-back. The look-back refers to the time period immediately prior to the filing of a Medicaid application.  During this time period the Department of Social Services will review your assets and any transfer more »

A DIY Disaster in Estate Planning

A DIY Disaster in Estate Planning Kera Reed As a recent first time homeowner, the phrase “Do It Yourself” or “DIY” takes me back to the late nights this past February of spackling, sanding and painting all of the walls in my house with my husband. We were fortunate that this was the only work that needed to be done. We were also fortunate because there were no structural, electrical or plumbing problems. I say fortunate because we know our limits; we know that we ar more »

Community Medicaid- Married Couples are Safe …for now!

Let me tell you a story about clients of mine.  It is about a husband and wife, mid 60’s.  The wife has Alzheimer’s disease and needs assistance with all activities of daily living.  Her husband is her primary caregiver but he cannot give her all the assistance she needs.  They manage to get by and she can remain in their home because community Medicaid pays for her health care aides.   Community Medicaid has been a life saver for this couple.  more »

Can I Resign or Decline Being an Executor?

Question:  My aunt recently passed away and I just found out that I was named executor of her Will. I really do not want to serve. Can I decline or resign from being executor? Answer:  Just because you are nominated as executor of a Will does not mean that you must serve.  You can renounce your rights as executor and decline to act by simply signing and having notarized a Renunciation of Nominated Executor form and filing it with the Surrogate’s Court in the county in w more »

Who Would Inherit From an Estate if Someone Dies Without a Will?

Q: Who would inherit from an estate if someone dies without a will? A: Passing away without a will is known as dying “intestate”.  Administration is the process in which letters are issued to a distributee of the decedent who then collects the decedent’s assets, pays the decedent’s debts and then distributes the remaining assets to the distributees. In an administration proceeding, it must be determined who are the distributees of the decedent. New York State law d more »

Capacity to Sign Power of Attorney

Question: My mother has just been diagnosed with Dementia.  It is in the early stages and she is still very lucid, can she still sign a Power of Attorney? Answer: It depends.  For starters, a Power of Attorney is the document which names a person or persons to handle your business and financial decisions. A Power of Attorney is valid when signed and permits the Agents named to step into your shoes and conduct all business and financial decision as if they were the Principal themselv more »

Revocable Trusts

Question:  My friend just created a Revocable Living Trust and I am not sure if I should be considering creating one as well.  I am in my sixties and have an estate worth approximately $800,000.00.  My current Last Will and Testament disinherits my estranged son.  Is a Revocable Trust something I should consider? Answer:  A Revocable Living Trust is a trust that you create during your lifetime and is great tool for those who wish to avoid the probate process. A Revo more »

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