Posts Tagged ‘ny elder law’

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

Understanding Financial Elder Abuse

Sunday, March 28th, 2010

Financial elder abuse is a serious problem for many senior citizens in the United States. Being able to recognize and report this kind of abuse will ensure the safety of your loved ones.

Elder abuse occurs when a victim is financially exploited, usually due to his or her diminished mental capacities. Financial elder abuse can take a number of different forms, including stealing money and other assets, forcing the elder to sell his or her property, and withholding money from the elder for daily living expenses. Taking an elder’s money and using it for purposes other than caring for him or improving his quality of life may also be financial abuse.

Abuse of this nature is a crime, and it is often committed by someone who is close to the victim– a family member, close friend, or even a service provider such as a doctor or therapist. Fraud, theft, forgery, extortion and the wrongful use of a Power of Attorney are other popular forms of financial abuse. This kind of exploitation may occur with or without the victim’s knowledge. Often, this kind of abuse may go unreported because of the elder’s inability to identify the situation, fear of the abuser, shame at the fact that he or she can’t control the situation, fear that he or she will not be believed, or a feeling that he or she is incapable of accurately describing the situation due to mental incapacitation.

Financial elder abuse also occurs when the victim is manipulated into signing legal documents, such as changing a Durable Power of Attorney, trust details, or Living Will. This practice commonly affects elders who have decreased mental capabilities, which makes it easier for them to be manipulated.

If you suspect this is happening to one of your elderly loved ones, there is something you can do to correct and even prevent it. Importantly, if the elder in question has any form of cognitive deficiency or he/she has been diagnosed with dementia, you can obtain a letter from the elder’s physician stating that the elder is no longer competent enough to handle finances. Without any medical or psychological evaluations of the elder, it is difficult to provide protection from financial abuse.

To prevent this kind of abuse, you may wish to consult an elder law attorney, who may be able to obtain permission from the court for an evaluation, even if the elder’s “agent,” does not wish to obtain such a test. An elder law attorney can help guide you through the process and help to secure your loved one’s health and happiness.

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