The Surrogate's Court here in New York County recently had an opportunity to review the law surrounding due execution of a decedent's last will and testament. In the probate proceeding of the estate of Sarah Gross, decided on December 7, 2011 by Surrogate Nora S. Anderson, Surrogate Anderson went through a detailed analysis of the factors the court typically considers when weighing the validity of a decedent's purported last will and testament. Those factors are 1) whether the testator had testamentary capacity at the time of the making of the will; 2) whether the rules as to 'due execution' … [Continue Reading]
A Power of Attorney is one of the most useful and essential tools used in estate planning and many other areas of the law. In New York, the Power of Attorney and related laws are set forth in the General Obligations Law, Article 5, Title 15. What is a Power of Attorney, exactly? A Power of Attorney is a legal document wherein one person, known as the 'principal', appoints another person, known as the 'agent', to act (e.g., sign documents) on behalf of the principal with respect to financial and similar matters. An agent cannot use a Power of Attorney to vote, for example, on behalf of the … [Continue Reading]
Now that same-sex marriage in New York is a reality, starting July 24, 2011, lawyers and financial advisers are going to want to take out a sharp pencil and calculator and 'run the numbers' to see how their same-sex couple clients will be impacted. This Technical Memorandum put out by the New York State Department of Taxation and Finance makes it clear that same sex couples MUST use a "married filing joint" tax return for income tax purposes, and for the estate tax, the same-sex couple would be treated as married, despite the fact that the marriage is not recognized for federal tax … [Continue Reading]
Wills and Trusts
Just what is "estate planning" anyway? Good question. Many people think of 'estate planning' as meaning a Last Will and Testament. And yes, while a Will is usually the cornerstone of an estate plan, the fact is that "estate planning" means a great deal more than just having a Last Will and Testament. In fact, estate planning is not an event, but a process of carefully structuring your legal and financial affairs in order to grow and protect yourself, your family and your hard earned wealth. There are many, many different elements to a well designed estate plan: both legal and financial. Estate planning also means protecting your property during your lifetime in an organized and efficient manner, and then passing your … Read more
Medicaid Planning generally refers to using various legal techniques and strategies to arrange a person’s personal and financial affairs so that assets can be sheltered from confiscation by the government while at the same time the state picks up nursing home costs, or the cost of home health aides. Almost all clients who come in for Medicaid Planning advice are asking for help because mom or dad needs to go into a nursing home or assisted living facility (or is already there), and the family is looking to protect their parents’ assets from being depleted due to the high costs of these facilities. It’s never ‘too late’ to engage in Medicaid Planning, however common-sense dictates that early planning is more effective than planning when the need for nursing home care arises.
Probate comes from the latin verb which means "to prove." Essentially, "probate" is the process where a person's Last Will and Testament is 'proven' to be what the document claims to be: the legally valid expression of a person's desires with respect to the disposition of their person and property at death. If someone dies without a Will, the process is known as "administration" instead of "probate," but the procedures are essentially the same. The word "probate" is often used casually when "administration" would be more precise, but sometimes it's easier to use the word "probate" to refer to both. The person who is 'in charge' of a decedent's estate is know as the "executor" or "executrix" in a probate proceeding, while in an … Read More