Posts Tagged ‘new york special needs planning’

The Disadvantages of Do-It-Yourself Estate Plans

Thursday, September 16th, 2010

While some people think that creating an estate plan on your own is a simple task, this couldn’t be further from the truth. In fact, there is a lot of legal knowledge, personalization, and attention to detail that goes into an estate plan. Even if you are young and think you have negligible assets, you should consult a professional. There are simply too many things that can be left out or misunderstood, and sometimes things just go wrong. Even a small mistake in an estate plan can lead to big problems, even invalidating your entire plan.

There are several important issues that are often overlooked by those preparing an estate plan on their own:

  • Although a will does not have to be notarized in some states, most states do require you to sign your will in the presence of witnesses. Failing to do this can result in your estate plan being invalidated.
  • It is important that you choose a backup guardian for your minor children in case your first choice is unwilling or unable to care for them. Failing to do so can cause great problems for your family after your death.
  • Although there is no estate tax in 2010, many heirs will actually end up paying more because of capital gains taxes.
  • Upon your death, your will becomes a public document, and this could leave your heirs open to criticism, claims, and contest suits by predators or unhappy relatives.

Any of these issues could present problems for those completing estate plans on their own. An estate planning attorney, however, could easily anticipate and address these issues. You should contact an estate planning attorney to ensure that your estate plan is current and complies with all state and federal regulations.

To learn more about New York elder law, New York estate planning, visit

Knowing When Your Loved One Needs Care

Sunday, September 12th, 2010

It is sometimes difficult for us to know when one of our loved ones is unable to care for himself. Even if the signs are present, it is often hard to admit that this is happening. The signs often develop gradually, and they aren’t always easy to pick up on if you see your loved one regularly. Sometimes, no one notices until a son or daughter who has moved away comes home for a visit and recognizes a decline in a parent’s ability to perform basic tasks.

If you suspect that your loved one may need care, these are some signs that you can look out for:

  • Inability to prepare own meals
  • Frequent falls
  • Inability to keep up with basic hygiene such as bathing or brushing teeth
  • Depression
  • Sudden isolation

Once you have noticed these signs you will need to figure out what level of care is needed and how you will pay for these services. Your loved one may need a small amount of help with housekeeping and other daily activities, or more comprehensive care may be necessary.

Although it can be difficult discovering that someone close to you needs care, it is not a process you have to go through alone. An elder law attorney can give you advice about the type of facility that would best serve your loved one’s needs or whether he can be cared for at home.

To learn more about New York elder law, New York estate planning, visit

Retirement Savings and Estate Plans

Wednesday, September 8th, 2010

With careful planning and review, your retirement savings can provide for your loved ones after your death. By taking a few simple actions, you can ensure that your benefits are awarded to the right person and will protect your family.

Making arrangements for the distribution of your retirement assets after your death is relatively simple. When you start a new job or open a retirement account, you’ll be required to fill out beneficiary forms that designate whom you want to collect on your savings. Unfortunately, it’s fairly easy to forget about these forms as the years pass by, and many people inadvertently leave their retirement assets to an unintended individual, such as a divorced spouse, rather than the current spouse or their children.

You can make sure that your retirement benefits go to the appropriate person by doing the following:

1) Make sure that you review your beneficiary designation forms every 2-5 years or whenever you experience a major life event, such as the death of a spouse, a second marriage, or the birth or adoption of a child.

2) Name contingent beneficiaries so that your family will be provided for if the primary beneficiary pre-deceases you. While you may think that naming your spouse as your primary beneficiary is enough, you can never be too careful with the assets that will help support your family.

3) Do not rely on your will to take care of your retirement assets. A will does not control the disposition of any asset that has a named beneficiary (including life insurance, pensions, trusts, and retirement accounts). Any named beneficiaries on your retirement account, therefore, will override any beneficiaries named in your will. If you wish to leave your retirement assets to a trust, you should seek the advice of an estate planning attorney.

4) If you’ve made the choice to name minor children as beneficiaries, you need to make sure you name a guardian for them and a trustee for their assets. Your retirement funds may be used to provide for the kids if anything happens to you, but minors are not legally allowed to control assets. They will need someone to manage their inheritance for them until they come of age.

Following these simple steps will ensure that your retirement assets work together with your overall estate plan. An estate planning attorney can help guide you through the process of making the proper designations and incorporating your retirement benefits into your estate plan.

To learn more about New York elder law, New York estate planning, visit

Dealing with the Probate Process

Sunday, August 8th, 2010

Probate is the process by which a court determines the authenticity of a decedent’s last will and testament. The executor’s job is to carry out the decedent’s wishes as set forth in the will. While probate sounds like a simple process, it almost never is. Even in the best of circumstances, there are procedures that must be followed strictly, and the probate process can take anywhere from months to years. Creating a good will can help shorten the probate process; however, even with a will, there are elements outside your control.

The executor must complete the following steps as part of the probate process:

  • making an inventory of all the decedent’s assets (this can be a difficult task if good records were not kept);
  • holding the assets while the estate is administered;
  • selling and/or liquidating assets for distribution or payment of taxes;
  • paying all valid debts of the estate;
  • notifying all beneficiaries of their inheritance;
  • preparing tax returns and paying taxes; and
  • distributing the estate assets as directed in the will.

The probate process can be further complicated if beneficiaries cannot be located or if a beneficiary contests the will. Going through all of these steps on your own can be difficult. An experienced estate law attorney can guide you through the probate process by helping you file the appropriate court documents and protecting the inheritance of beneficiaries.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit

Reverse Mortgages as a Source of Equity

Thursday, July 8th, 2010

Because their home is their largest asset and their greatest source of equity, many choose to take out a home-equity loan. However, a home-equity loan may not be a sound option, since the money must be paid back, with interest. Luckily, there is another option available to seniors. A reverse mortgage allows them to gain equity without adding financial pressure to their lives.

A reverse mortgage is an easy way of accessing your home equity without creating monthly payments. The money received from a reverse mortgage does not have to be paid back during a person’s lifetime. Instead of making payments, as with a normal home-equity loan, the cash flow is reversed and the senior will receive payments from the bank.

Not everyone will qualify for a reverse mortgage. One of the major eligibility requirements is that the person applying for the mortgage be at least 62 years old and occupy the home as the principal residence for the majority of the year. The loan only becomes due when the last borrower permanently leaves the home.

What makes these types of mortgages so attractive is the fact that they are not credit-based. Therefore, income and credit history are not necessary for the person to obtain the mortgage. Another major benefit of a reverse mortgage is that the proceeds are tax-free and can be received in a number of ways. You can choose to receive the proceeds as a lump sum, in fixed monthly payments for as long as you live in the mortgaged property, as a line of credit, or through a combination of these options. These proceeds can be used for any of the following purposes:

  • daily living expenses
  • paying-off existing debts
  • home repairs and improvements
  • medical bills and prescription drugs
  • education
  • travel
  • long-term care and/or long-term care insurance
  • financial and estate tax plans
  • gifts and trusts
  • purchasing life insurance

While there are many benefits to this process, there are certain drawbacks that seniors should consider carefully before choosing this option. If, for example, the senior who takes out the reverse mortgage is not entirely competent, his power of attorney or guardian may be able to access the funds received from the reverse mortgage. Seniors considering a reverse mortgage should contact an elder law attorney who can guide them through the process.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit

Second Marriages and Estate Planning

Tuesday, July 6th, 2010

With the number of divorces continuing to rise in the United States, there has been an increase in second marriages. Second marriages and the blended families that often result from them can pose a number of estate planning issues. This is because spouses must provide for their partners, their partner’s children, and children from the previous marriage. If you are marrying later in life and already have substantial assets, this can make the situation even more complex. One of the most difficult challenges will be using those assets to ensure that a surviving spouse is financially secure in his or her lifetime, while preserving a sizable sum for the children from your first marriage.

With a second marriage, spouses should consider how long the second marriage has lasted and the financial situation of each partner. In addition, a great deal of thought should go into what the children from the first marriage will receive if their parent is the first spouse from the new couple to pass away. If there is no prenuptial agreement in the second marriage, it is likely that the surviving spouse will get half of the deceased spouse’s assets, and this may not be what the deceased spouse would have wanted for his or her children from a previous marriage.

While second marriages can present challenges for estate planning, these issues can be resolved if clients are thoughtful and seek the advice of an experienced estate planning attorney.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit

A Closer Look at Spousal Refusal

Thursday, June 24th, 2010

New York is one of only three states in the U.S. that allows spousal refusal. Spousal refusal is a planning option that protects a couple’s assets and allows an incapacitated spouse to qualify for Medicaid. To be eligible for Medicaid in New York, an individual cannot have more than $13,800 in non-exempt property, which is often a problem for married couples.  However, there is an alternative way to qualify for Medicaid benefits – spousal refusal. Under New York law, the spouse who does not reside in the nursing home (known as the “community spouse”) is allowed to keep his or her assets if spousal refusal is exercised.

The community spouse can invoke spousal refusal by signing a statement refusing to contribute income or resources to the spouse who is residing in an institution and receiving medical care. If the community spouse chooses to do this, the Medicaid agency is then required to disregard the community spouse’s income or resources when determining the eligibility of the spouse in an institution. Doing so will allow the community spouse to continue supporting himself or herself without fear of impoverishment.

Spousal refusal can work for couples as a last minute planning option, and the spouse in need (the incapacitated spouse residing in the institution) can start receiving benefits almost immediately. However, this planning option is not without cost. The Medicaid agency can choose to commence proceedings and attempt to force the community spouse to support the spouse in the institution. The agency can also file a claim to receive reimbursement from the community spouse’s estate once he or she has passed away. These planning options should be discussed with your elder law attorney.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit

A Closer Look at Charitable Trusts

Friday, June 4th, 2010

A charitable trust is a financial account that allows you to donate money to a charity while receiving a tax benefit for you and your heirs. There are two major types of charitable trusts: charitable remainder trusts (CRTs) and charitable lead trusts (CLTs). Of these two types of trusts, CRTs are the most common. These types of trusts are usually funded with a minimum of $100,000. CRTs are attractive, because in addition to the income tax and estate tax deductions that are available, the donor of the trust also receives income from the trust for a specified period.

A CRT is a trust which allows for a specified distribution, which must occur at least annually, to one or more beneficiaries. At the very least, one of these beneficiaries must not be a charity. The trust is set up for life or for a term of years, with an irrevocable remainder interest to be held for the benefit of, or paid over to, charity.

CRTs are further broken down into two types: charitable remainder unitrusts (CRUTs) and charitable remainder annuity trusts (CRATs). Both are irrevocable trusts that pay out a portion of the value of the trust assets each year to a beneficiary chosen by the trust donor. The beneficiary can be the donor or his or her spouse. The difference in these trusts lies in the fact that the CRUT pays a fixed percentage of the value of its holdings, and the CRAT pays a fixed dollar amount.

Charitable lead trusts (CLTs) are different from CRTs in that they pay income to a qualified charity for a set number of years or for the lifetime of the individuals who establish the trust. At the end of the trust, the assets are returned to the donor, the spouse, children, or other specified individuals. A great benefit of a CLT is that if the trust earns more than it pays to the designated charitable beneficiary, those extra earnings will then pass on to the non-charitable beneficiaries without racking up additional estate or gift taxes.

If you or your spouse wishes to establish a charitable trust, you should contact an estate planning attorney, who can offer you guidance about which type of trust will be right for you and your family.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit

QTIP Trusts

Monday, May 24th, 2010

A qualified terminable interest property trust (QTIP) limits a surviving spouse’s access to, and control of, the trust property. Its main objective is to enable your spouse to use your assets at the same time that you determine the distribution of those assets. Under a QTIP trust, the spouse has direct access to any income from the trust assets for the remainder of his/her life, but the trust’s principal is actually left to someone else, usually one’s children.

A QTIP trust can offer many benefits to your family, especially if you are in a second marriage and you want to protect your assets for your children. You should consider the following provisions before making a decision:

• Giving your spouse the ability to change trustees. It may be difficult for your spouse to deal with the trustee you have chosen, so you may want to give him/her the opportunity to appoint another individual.

• Deciding how much discretion your spouse will have to make withdrawals from the trust principal. Placing too many restrictions on your spouse’s ability to make withdrawals may cause conflicts with the trustee. It may be a good idea to discuss these provisions with your spouse before making any decisions regarding withdrawals.

• Reviewing the trust’s beneficiaries with your spouse. Your spouse needs to know that regardless of what happens to his/her financial or personal situation, the trust cannot be altered.

A QTIP trust offers you the opportunity to make sure that your wishes are carried out and that your spouse’s future is protected. An estate planning attorney can help guide you through the process.

To learn more, visit

Estate Planning After a Divorce

Saturday, May 8th, 2010

While all relationships do not end amicably, divorced or divorcing parents of minor children should put aside their differences in order to plan for their children’s future. There are several key issues that should be considered before or during a divorce: guardianship, financial inheritance, and remarriage.

Guardianship is an important issue that parents should discuss with great care. When you die, guardianship of your minor children will pass to their surviving biological parent. This is true even if you had full custody of the child, unless a court finds that the surviving parent is unfit to care for the child. You and your ex should discuss and provide for the appointment of alternate guardians. Doing so will make you and your children feel more secure about the future.

Your will should provide that your children’s share of your estate is held in trust. You will need to appoint a trustee who will be responsible for maintaining the trust assets, as well as making distributions to the guardian for the benefit of your child. It is important to remember that the trustee and guardian will have to work together on a regular basis. If you and your ex can agree on a trustee with whom you are both comfortable, it will make the process easier on all of the involved parties.

Remarriage inevitably affects your financial situation. It is important to remember that if you don’t make provisions for your children in your estate plan, your assets may end up going entirely to your new spouse when you die. This can be easily avoided. If your first spouse was the designated beneficiary of your 401(k), pension, life insurance policies or retirement plans, you should also remember to change the beneficiary designations, or your ex may end up with a considerable part of your assets, and your new spouse will be left out.

To learn more about New York elder law, New York estate planning, visit