Frequently Asked Questions
Get clear, straightforward answers to common questions about elder law, estate planning, and asset protection. This section is designed to help you better understand your options so you can make informed decisions for yourself and your family. If you need guidance tailored to your situation, our team is here to help.
Elder Law Basics
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Elder Law encompasses many different fields of law. Including:
1. Preservation through transfer of assets seeking to avoid depleting assets when a spouse enters a nursing home
2. Medicaid Planning
3. Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity
4. Guardianships
5. Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents; accomplishing your personal and family goals and easing the management of your financial and legal affairs, as well as minimizing taxes if your estate is large enough for taxes to be of concern
6. Probate Administration and management of trusts and estates
7. Long-term care placements in nursing home and life care communities
8. Retirement, including public and private retirement benefits, survivor benefits and pension benefits -
Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring to their practice compassion and knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a system of social workers, psychologists and other elder care professionals who may be of assistance to you.
Power of Attorney
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A power of attorney is a document authorizing someone else (an agent) to act on your behalf. The purpose of giving someone such a power in connection with your estate planning is to enable the agent to act on your behalf when you are unable to act for yourself
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A general power of attorney authorizes your agent to do almost everything on your behalf, which you could do for yourself. A limited or special power of attorney authorizes your agent to perform only certain acts specifically listed in the document.
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Requirements vary from state to state, but in New York signing the power in the presence of a notary is necessary.
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This depends upon what the power says. It can be made effective at the time of signing or it can become effective at the time of your incapacity.
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All powers of attorney done in connection with estate planning are “durable.” A durable power of attorney is simply a power of attorney that remains effective even if you become incapacitated. A non-durable power of attorney would, of course, be useless in connection with estate planning or disability planning.
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Yes. Everyone doing estate planning should execute a durable general power of attorney for financial, property, and legal affairs.
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Yes, it is equally important to have a health care power of attorney, to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so. This document includes the type of provisions that used to be called a “Living Will,” allowing you to indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life artificially in the event of a terminal illness or injury. You will also use this document to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements.
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Death revokes a power of attorney. You may also cancel your power of attorney by signing a revocation.
Trusts and Asset Protection
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Irrevocable Living Trusts are designed to provide asset protection
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A Living trust is often recommended to clients as the key document in their estate plan. One reason for this is that the living trust is normally the best method for managing assets during incapacity. A major advantage of the living trust over the power of attorney is that a trustee has actual title to the assets and therefore third parties must deal with the trustee as the owner. An agent does not have title and hence third parties may refuse to deal with the agent. This is a particular problem if the power of attorney was not signed in the last year, because some financial institutions refuse to honor powers of attorney that are more than a year old.
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A Revocable Trust only protects your assets from probate. An Irrevocable Trust is an asset protection mechanism that protects your assets from the cost of probate AND from creditor, particularly from the most likely creditor that we all face, which is the nursing home.
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Not only does a Living Trust provide for the disposition of your property (like a Will), but it also offers many other benefits, such as:
1. Avoiding Probate During Life
2. Avoiding Probate Upon Death
3. Avoid Probate for Multiple Generations
4. Holding Assets for Beneficiaries Indefinitely
5. Avoiding Ongoing Probate
6. Avoiding Estate Tax (if married)
7. Eliminating Probate Tax
8. Reducing Legal and Administrative Fees
9. Providing Oversight by Family, not Court
10. Privacy of assets -
For married couples, either one or both spouses may act as trustee or co trustees. The successor trustee is an individual whom you designate to be in charge of your trust in the event of disability or upon death.
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The Moskowitz Legal Group is available to serve as Trustee or Successor Trustee of a Living Trust, and/or Executor of a Will and/or Agent under a Power of Attorney. You should consider and investigate all of the alternatives available to you before deciding whom to select as Trustee and/or Executor and/or Agent under a General Power of Attorney.
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Funding a trust entails transferring assets you own as an individual into the name of your trust. For some assets, our law firm makes the transfers and prepares the documents for you to sign, for example, real estate. For other assets that our law firm is unable to change for you, we will give you instructions as to how title is changed, and will provide you with the necessary paperwork. For example, to fund your trust with bank accounts, you will have to go to the bank in person to sign a new signature card as trustee of your trust.
Estate Planning
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Estate planning is the preservation and the distribution of your assets, both during your life and upon your death. It is accomplishing your personal and family goals and easing the management of your financial and legal affairs, as well as minimizing taxes if your estate is large enough for taxes to be of concern. An “estate plan,” generally, refers to the means by which your estate is passed on to your loved ones on your death. Estate planning can be accomplished through a variety of methods, including:
• Trusts
• Last Will and Testament / Probate
• Lifetime Gifting
• Joint Ownership
• Beneficiary Designations
• Life Estates
Problems often arise when people don’t coordinate all of these methods of passing on their estate. To take just one example, a father’s will may say that everything should be equally divided among his children, but if the father creates a joint account with only one of the children “for the sake of convenience,” there could be a fight about whether that account should be put back in the pool with the rest of the property. -
Trusts
Last Will and Testament / Probate
Lifetime gifting
Joint ownership
Beneficiary designations
Life estates
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If these methods are not aligned, it can lead to disputes or unintended outcomes.
Wills, Probate, and Intestacy
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If you die without a will or trust, the state determines who will be your ultimate heirs. This distribution plan can be found in the intestacy statute of each state. The applicable state can be either the location of your legal residence (for personal property), or the state in which your assets are located (for real estate).
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If you die intestate (without a will), the transfer of your property is accomplished through a court supervised proceeding called probate that can take a year, and sometimes longer. These proceedings generally are expensive and time consuming and tie up your property. Probate can be avoided with proper estate planning.
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Probate is the court-supervised public proceeding used to change title to assets from the name of an individual who has passed away into the name of the living beneficiaries. It is also the process by which creditors of a decedent file claims to collect their debts and where interested parties who have a complaint regarding the deceased can file a complaint (a will contest).
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Probate can be avoided with proper planning. There are a number of different techniques for doing so which can be used alone or in combination.
Additional Services
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Yes. We offer seminars regularly. Please contact our office for scheduling information.
Still Have Questions? We’re Here to Help
Estate planning and elder law decisions can feel overwhelming, especially when every situation is unique. If you did not find the answer you are looking for, our team is ready to provide clear guidance tailored to your needs.