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Estate Planning

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 »

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 »

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 »

In Terrorem Clauses

In Terrorem Clauses

In Terrorem is a term derived from Latin which translates to “in fear”.  An In Terrorem provision in a Decedent’s Last Will and Testament “threatens” that if a beneficiary challenges the Will then the challenging beneficiary will be disinherited instead of inheriting the full gift provided for in the Will.  An in terrorem clause is intended to discourage beneficiaries from contesting the Will after the testator’s death.  New York law recognizes more »

IRA Beneficiary Designations

IRA Beneficiary Designations

Question:  I have recently rolled over my 401(k) plan into an existing IRA. I am not sure if I need to update the beneficiary designation forms on file; can you give me some advice? Answer: Some of the most costly estate planning mistakes can involve retirement accounts and are usually made in the beneficiary designation forms.  When you originally opened your account, you should have completed a beneficiary designation form.  You should periodically check such designations with more »

Compelling a Fiduciary to Account an Estate

Compelling a Fiduciary to Account an Estate

Q: My sister is the Executor of my mother’s estate. She had three children and we all share the estate equally.  My sister sent me a Receipt and Release Agreement proposing a distribution to me of $50,000.00. I want the money, but I don’t feel comfortable signing the Receipt and Release. What should I do? A: My advice would be to not sign the Receipt and Release until you are provided an accounting by your sister as Executor of the Estate. You should demand this accounting in w more »

Power of Attorney and Statutory Gifts Rider

Power of Attorney and Statutory Gifts Rider

Question: Two years ago my sister used a Power of Attorney given to her by my mother to withdraw $100,000 from my mother’s bank account.  She transferred the money to herself. My mother passed away last week.  My sister says my mother wanted her to have the money and refuses to share it with all of my mother’s children.  My mother had a will that gave her assets to allof us in equal shares.  Can my sister get away with this? Answer:  The first step to answer more »

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