Category: Trusts, Estates & Elder law

Estate Tax: The Basics
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Estate Tax: The Basics by Tom Sciacca

{Read in 4 minutes} Many people have heard of estate tax, but not everyone understands whether or not it would be applicable to them.

In its simplest form, the estate tax is a death tax. Any assets that change hands by reason of one’s death is subject to the estate tax. It does not matter if the assets pass under the Will as part of the probate process or pass automatically by operation of law to named beneficiaries. For example, a person’s condo, which usually passes according to the terms of their Will, is equally subject to the estate tax as are their retirement accounts that names beneficiaries who inherit directly.

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Don’t Let Life Insurance Affect Your Medicaid Eligibility
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Don’t Let Life Insurance Affect Your Medicaid Eligibility | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Jeffrey P. Gorak, Esq.

{4:50 minutes to read} A life insurance policy is a contract between an individual (the insured) and an insurance company (the insurer) where the insured pays a premium in exchange for the insurer’s promise to pay a certain sum of money (the death benefit) to the designated beneficiaries on the death of the insured.

The two most common types of life insurance policies are 1) term life insurance and 2) whole life insurance.

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The Elusive “Iron-Clad” Will
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The Elusive “Iron-Clad” Will | Tom Sciacca

Question: Is there any such thing as an “iron-clad” Will? Simple answer: Nope (sorry ‘bout it). A lot of people think that putting a certain amount of time, work, or even money into drafting estate planning documents can prevent a troublesome family member from challenging a Will. That’s not how things work. In New York (like in most states), we have a self-policing system of determining validity of Wills. That means that when someone dies, the Court puts his or her next-of-kin on notice that someone is offering the Will for probate. Essentially, telling them that if they have an objection to the Will, they should show up in Court and let their voice be heard as to why the Court should not probate it. Best-case scenario, a troublesome family member will simply not appear in Court; worst-case scenario, they see it as an invitation to challenge the Will’s validity.

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Passing Your Home to Your Children
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Passing Your Home to Your Children | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Stacey Meshnick, Esq.

{3:53 minutes to read} Giving your house to your children can have potential tax consequences, but there are ways to accomplish this transfer without the negative side effects. The best method to use will depend on your individual circumstances and needs.

The simplest way to give your house to your children is to name them as beneficiaries in your will. If you are a New York resident, as long as the total value of your estate is under $4,187,500 (until April 2017), no estate taxes will be imposed.

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How to Leave Money to Disabled Beneficiaries Without Compromising Benefit Entitlements
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How to Leave Money to Disabled Beneficiaries Without Compromising Benefit Entitlements | Tom Sciacca

{Read in 4 minutes} While not everyone who suffers from a disability is on government entitlements, many times I am faced with questions from people who have adult children or siblings who fall into this category. What is their concern? Their concern is that they want to make some provision for their loved one without losing the needs-based government entitlements that they need to meet their basic daily needs.

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Cleaning Your Legal House: Is It Time to Update Your Will?
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Cleaning Your Legal House: Is It Time to Update Your Will? | Tom Sciacca

{Read in 6 minutes} The changing of the calendar is often a catalyst for many people. At the beginning of each new year, many clients take inventory of their legal affairs. They question whether their existing documents need to be updated, with their Will topping the list.

A well-drafted Will anticipates various changes in a client’s life, and often does not require periodic updating absent a major life event. It is essential, however, that clients periodically review their Wills to ensure that it still fully reflects their wishes.

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End-of-Life Discussions & Decisions
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End-of-Life Discussions & Decisions | Susan Moussi

{3:30 minutes to read} The subject of this article comes from my personal experience this past fall with the death of my husband, Cliff. Cliff was diagnosed with brain cancer in 2014. Life took on a new normal, and we had nearly two years after his diagnosis to take care of planning, completing paperwork, and discussing his wishes. Not everyone gets an advance notice like this. Accidents do happen, so I urge you to make a New Year’s resolution to take the following steps, no matter your situation:

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Reducing Capital Gains Taxes
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Reducing Capital Gains Taxes | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Debby Rosenfeld, Esq.

{5:26 minutes to read} The capital gains tax (“CGT”) is a tax imposed on the profit that is realized by an individual when he or she sells certain types of assets. The most common capital gains are realized from the sale of stocks, bonds, precious metals and real property. Although it is often said that nothing in life is certain except death and taxes, the one tax a person may be able to avoid or minimize the most through planning is the tax on capital gains.

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Secure Your Wishes with a Health Care Proxy
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Secure Your Wishes with a Health Care Proxy | Tom Sciacca

{Read in 8 minutes} What is the best kept secret about a Health Care Proxy? It’s absolutely free and you don’t need a lawyer to do it.

A Health Care Proxy may be one of the most important legal documents that you ever sign, yet many people do not know what it is. Basically, it’s a statement a person can sign appointing someone else to make his or her medical decision for them if there were ever to come a time when that person cannot make a medical decision on their own.

First, you should consider clicking here. This is New York State Department of Health’s website, where the Health Care Proxy form is available as a fill-in-the-blank document in several different languages. This is something that you can complete simply by following the instructions provided on the website.

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The Nuts and Bolts of a Will Execution
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The Nuts and Bolts of a Will Execution | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Debby Rosenfeld, Esq.

{3:49 minutes to read} As many know, the Last Will and Testament is a document in which a person (the “testator”) articulates to whom he/she wishes to leave all of his/her assets upon death. Wills are official documents, and they often mean a great deal to the respective testator. Because a will is such an important document, it must meet the legal requirements set forth by the state in which the testator resides in order to be valid.

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Setting the Record Straight on Probate
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Setting the Record Straight on Probate | Thomas Sciacca

{Read in 8 minutes} As a trusts and estates attorney, a lot of times people ask me, “Do I need to avoid probate?” Frequently, people have seen a recent television program with a TV personality advising them to execute Revocable Trusts or people telling them horror stories about what the probate process has done to them, but very infrequently do people actually understand what probate is. Let me tell you a little bit about what it is so that you can make a decision about what is appropriate for you and your loved ones.

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Using Trusts to Manage Bequests
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Using Trusts to Manage Bequests | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Yan Lian Kuang-Maoga, Esq.

{3:21 minutes to read} The concept of controlling one’s heirs from the grave may be difficult to fathom. However, there are many circumstances in which it is necessary to set some control over the inheritance to an heir in order to protect him or her. Trusts are often used to set the appropriate level of control and to provide peace of mind to the creator of the trust. Trusts are also used for estate tax planning purposes.

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How to Avoid Undue Influence in Estate Planning
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How to Avoid Undue Influence in Estate Planning | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Eva Schwechter, J.D.

{3:31 minutes to read} Most people have heard the term “undue influence” in connection with a will or an estate plan, but what does it mean and how can it be avoided?  

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his wishes and to the benefit of the influencer. The pressure can take the form of deception, harassment, threats or isolation.

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Four Myths About Medicaid’s Long-term Care Coverage
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Four Myths About Medicaid’s Long-term Care Coverage | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Yan Lian Kuang-Maoga, Esq.

{4:38 minutes to read} Long-term care is not cheap. The cost of employing a home care attendant in the New York City area ranges from $15 to $25 an hour and a nursing home bed runs from approximately $13,000 to $17,000 per month. Finding the right solution to help pay for long-term care is critical. While Medicare gets most of the news coverage, Medicaid still remains a mystery to many individuals.

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The Importance of Preparing for the Future
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The Importance of Preparing for the Future | Ron Fatoullah

By Ronald A. Fatoullah

When people are in the midst of their child-rearing years, they typically don’t worry about costs that they might incur in their post-retirement years. Life is in the now, and between carpooling, piano lessons and other extracurricular activities, summer camp, and the cost of tuition, time is limited and there are few extra funds to address the potential health care costs that may arise in the future.

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The Importance of Maintaining a Special Needs Plan
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The Importance of Maintaining a Special Needs Plan | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Eva Schwechter, J.D.

{4:31 minutes to read} Anyone who has a family member or loved one with special needs can appreciate the importance of meeting with an attorney and establishing an appropriate plan. However, as we all know, circumstances change! It is also important to stay in close contact with your attorney throughout your life. In case you haven’t thought of checking in with your special needs planner in a while, here are five events that should trigger an immediate call to your attorney.

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Safeguarding Your Will and Estate Plan from Legal Challenges
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Safeguarding Your Will and Estate Plan from Legal Challenges | Vincent J. Russo

A recent meeting with one of my clients caused me to think about what it means to contest a will. Some people have misconceptions about who can mount a challenge to a person’s will or estate plan, and how those documents can be protected from such a challenge. Only spouses and children (known as legal heirs) have the right to challenge a will or estate plan under New York law.

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Misconceptions About Irrevocable Medicaid Trusts
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Misconceptions About Irrevocable Medicaid Trusts | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Yan Lian Kuang-Maoga, Esq.

Elder care attorneys use trusts for a variety of reasons, and the type of trust that is chosen depends on the goal of the particular client. Irrevocable trusts, in particular, are excellent vehicles for preserving an individual’s assets in anticipation of long-term care, such as Medicaid. However, many people have developed a wariness of irrevocable trusts based on two common misconceptions.

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Understanding Medicaid’s Five-Year Look-Back
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Understanding Medicaid’s Five-Year Look-Back | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Debby Rosenfeld, Esq.

{3:40 minutes to read} Medicaid, unlike Medicare, is a means-based program, so an individual is only eligible for benefits if the assets he owns are minimal. Furthermore, the government does not want someone to be able to gift all of his assets so that he can be eligible for Medicaid the next day. Accordingly, in the context of Medicaid, a penalty is imposed on any applicant who has made certain uncompensated transfers (gifts) within a specified period of time.

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Choose Your Fiduciary Wisely
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Choose Your Fiduciary Wisely | Ronald A. Fatoullah

By: Ronald A. Fatoullah, Esq. and Elizabeth Forspan, Esq.

When we create or revise our estate plans, we are faced with some very important decisions. The selection of the appropriate person to serve as one’s fiduciary is a choice which can have significant implications.

A fiduciary can take various forms: in your Last Will and Testament, your fiduciary is called the executor. Your executor is responsible for administering your estate and “wrapping up” your affairs after you die.

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Will a Divorce Revoke My Will?
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Will a Divorce Revoke My Will? | Ron Fatoullah

By Ronald A. Fatoullah, Esq. and Yan Lian Kuang-Maoga, Esq.

How does a divorce affect a will? The good news is that a divorce will revoke all revocable bequests to a former spouse and any of your appointments of your former spouse. However, you cannot rely on this automatic revocation alone. It is always recommended that you review your estate plan after a divorce, or even better, once you have begun to contemplate one.

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Planning for the Non-Traditional Family
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By Ronald A. Fatoullah, Esq. and Eva Schwechter, J.D.

Estate planning is important for every family. However, planning is especially critical for “non-traditional” family units. While traditional families are protected to a certain extent by laws and statutes, non-traditional families must be more proactive in their estate planning, to ensure loved ones are protected and provided for.

One example of laws that protect the traditional family are the laws of intestacy. The laws of intestacy are the laws governing the circumstance where one passes away without a will or trust.

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What’s the Best Way to Transfer My Home to My Child?
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What’s the Best Way to Transfer My Home to My Child? | Robert Shaw

When estate planning, determining the best way to transfer the ownership of a home from parent to child has many implicationsespecially for seniors. There are 3 ways to transfer the ownership of a home from parent to child:

  1. Outright gift
  2. Gift with a reserved life estate
  3. Gifting by trust
Outright Gift The problem with an outright gift is that the child would lose what’s called the step-up in basis.

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The Importance of Preparing a Healthcare Proxy and a Living Will
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The Importance of Preparing a Healthcare Proxy and a Living Will | Robert W. Shaw

Without a healthcare proxy in New York State, you will not be able to control who makes your healthcare decisions if you become unable to make these decisions yourself. Living wills are often confused with healthcare proxies. The difference between a healthcare proxy and a living will is that a living will gives evidence for the medical professionals, or the courts, on what your end-of-life wishes are, while the healthcare proxy is the actual legal document in New York State.

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Special Needs Trusts: Beyond Medicaid and SSI
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Special Needs Trusts: Beyond Medicaid and SSI | Ronald A. Fatoullah

By Ronald A. Fatoullah, Esq. and Debby Rosenfeld, Esq. Many of our clients seek guidance with respect to planning for their children with special needs. “Special needs” can cover a host of different types of disabilities. Some children will be able to live a full life with social and economic opportunities, but simply need more supervision and hands-on asset management. Other individuals may require far more intervention, including a myriad of governmental benefits such as Supplemental Security Income (“SSI”) and Medicaid.

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Can the Right Trust Anticipate Your Needs and Set Your Mind at Ease?
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Can the Right Trust Anticipate Your Needs and Set Your Mind at Ease? | Robert W. Shaw

Trusts fall into two main categories: revocable andirrevocable. Revocable trusts are set up by the individual (known as the “grantor”), often for their own benefit, and can be changed at any time. Irrevocable trusts are setup in a manner intending that they not be changed. Both types of trusts can be either living trusts or trusts which take effect upon death, known as testamentary trusts. These are some examples of the many specific types of trusts serving myriad different purposes:

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Can the Right Trust Anticipate Your Needs and Set Your Mind at Ease?
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Can the Right Trust Anticipate Your Needs and Set Your Mind at Ease? | Robert Shaw

Trusts fall into two main categories: revocable and irrevocable. Revocable trusts are set up by the individual (known as the “grantor”), often for their own benefit, and can be changed at any time. Irrevocable trusts are setup in a manner intending that they not be changed. Both types of trusts can be either living trusts or trusts which take effect upon death, known as testamentary trusts. These are some examples of the many specific types of trusts serving myriad different purposes:

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Financial Abuse of Seniors: How to Uncover and Prevent It
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Financial Abuse of Seniors: How to Uncover and Prevent It | Rebecca Eddy

{3:00 minutes to read} One of the unfortunate realities of aging is an increase in vulnerability. We all know seniors are prone to falls and illness, but there are other areas of danger that caregivers and family members should be aware of. Despite the availability of information, instances of elder abuse can take many forms and be difficult to uncover. One of the more prevalent types of abuse dealt with at Eddy & Schein is financial abuse, which can result in major losses when left unchecked.

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Powers of Attorney: Trust Your Agent
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Powers of Attorney: Trust Your Agent  | Evan Schwartz

By Ronald A. Fatoullah, Esq. and Debby Rosenfeld, Esq. {3:46 minutes to read} When offering legal advice, one of the first things we recommend to our clients is that they must have a well-drafted power of attorney. A power of attorney is a document whereby the person signing the power (the “principal”) authorizes another person or persons (the “agent(s)”) to sign and act on his or her behalf with respect to financial matters. Having a power of attorney is imperative in case an individual should become incapacitated in the future.

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