When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If the assets of the deceased were owned through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. The probate process for each estate is unique, but usually involves the following steps:
Filing of a Petition with the Proper Probate Court.
Notice To Heirs under the Will or To Statutory Heirs (If No Will Exists).
Petition To Appoint Executor (In the Case of a Will) or Administrator for the Estate.
Inventory and Appraisal of Estate Assets by Executor/administrator.
Payment of Estate Debt To Rightful Creditors.
Sale of Estate Assets.
Payment of Estate Taxes, If Applicable.
Final Distribution of Assets To Heirs.
Frequently Asked Questions
What Happens If Someone Objects To the Will?
An objection to a will, also known as a "will contest" is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate. In order to contest a will, one has to have legal "standing" to raise objections. This usually occurs when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Executor.
Do I Get Paid for Serving as an Executor?
Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased's estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.
How Much Does Probate Cost? How Long Does It Take?
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors' fees, attorneys' fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.
Does Probate Administer All Property of the Deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. Certain types of assets are "non-probate assets" and do not go through probate. These include:
Property In Which You Own Title as "Joint Tenants with Right of Survivorship". Such Property Passes To the Co-Owners by Operation of Law and Do Not Go through Probate.
Retirement Accounts Such as Ira and 401 (K) Accounts Where There Are Designated Beneficiaries.
Life Insurance Policies.
Bank Accounts with "Pay on Death" (Pod) Designations or "In Trust For" Designations.
Property Owned by a Living Trust. Legal Title To Such Property Passes To Successor Trustees without Having To Go through Probate.
A properly drafted will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the Testator. Unfortunately, estate planning documents, whether wills or trusts, do not always clearly reflect the intentions of the testator. Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a will. When someone with standing objects to a will or a trust, the estate might have to be litigated. This is sometimes referred to as a "will contest." These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of probate court rules and procedures.
Typically, if a will is involved, a probate court will determine whether or not it is valid and should be executed. If the will is found to be valid, the court will oversee the allocation of assets and will ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner. The court also oversees the distribution of assets if the testator, or deceased person, died intestate, without a valid will.
When There Is No Will
In instances where no valid will exists then intestacy laws which indicate what assets each family member is to receive go into effect. Typically, inheritance is granted to family members according to a specific order. Once the decedent's debts have been paid from the estate, the remaining assets are distributed among the testator's spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren. Family members who are half-blood relatives are generally considered as if they were full-blood. Without the guidance of an estate litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one's rights. Whether you are an executor, trustee, beneficiary or someone improperly left out of a will, contact our estate litigation attorneys to discuss your options.
Who Can Contest a Will?
A protesting party may only contest a will if he or she falls within one of two categories. First, those mentioned in the will, known as the will's beneficiaries, may formally challenge it. Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the will, or is expressly disinherited, he or she may seek to contest. If one is not named as a beneficiary in the will and is not a family member eligible for inheritance, known as a distributee, he or she may not pursue a formal challenge. In order to successfully contest a will, the protesting party must prove that the will is invalid. There are several scenarios under which a will may not be admitted, including but not limited to:
If the testator altered his or her will under the threat of force or other persuasion, it is said that he or she was under undue influence.
Similarly, if the testator is shown to have been in an incapacitated or otherwise impaired mental state at the time the will was executed, it may be considered void.
Will Does Not Follow Procedure
A will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.
The Will Was Revoked
If the will was revoked after it was signed, it will also be considered void. A subsequent will, marriage, or legal action may also revoke a will.
Lastly, the protesting party can contest if he or she has proof that the testator was deliberately misled by a third party.
While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones. Proper estate planning not only puts you in charge of your finances, it can also spare your loved ones of the expense, delay and frustration associated with managing your affairs when you pass away or become disabled.
Providing for Incapacity
If you become incapacitated, you won't be able to manage your own financial affairs. Many are under the mistaken impression that one's spouse or adult children can automatically take over for them if they become incapacitated. The truth is that in order for others to be able to manage your finances, they must petition a court to declare you legally incompetent. This process can be lengthy, costly and stressful. Even if the court appoints the person you would have chosen, the individual may have to come back to the court every year and show how he or she is spending and investing each and every penny. If you want your family to be able to immediately take over for you, it's essential that you work with an attorney to create the proper legal documents to designate a person, or persons, that you trust so they will have the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home. Many people mistakenly think that a simple will can effectively protect you in the event that you become incapacitated, but the truth is that a will does not take effect until you die. In addition to planning for the financial aspect of your affairs during incapacity, it's critical that you establish a plan for your medical care. The law allows you to appoint someone you trust - for example, a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself. You can do this by using a durable power of attorney for health care where you designate the person to make such decisions on your behalf. In addition to a power of attorney for health care, you should also have a living will which informs others of your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.
If you leave your estate to your loved ones using a will, everything you own will pass through probate. The process is expensive, time-consuming and open to the public. The probate court is in control of the process until the estate has been settled and distributed. During this process, it is not unusual for the probate courts to freeze assets for weeks or even months while trying to determine the proper disposition of the estate, making it difficult for your family to pay for living expenses. If you are married and have children, you want to make certain that your surviving family has immediate access to cash to pay for living expenses while your estate is being settled. With proper planning, your assets can pass on to your loved ones without undergoing probate, in a manner that is quick, inexpensive and private.
Providing for Minor Children
It is important that your estate plan address issues regarding the upbringing of your children. If your children are young, you may want to consider implementing a plan that will allow your surviving spouse to devote more attention to your children, without the burden of work obligations. You may also want to provide for special counseling and resources for your spouse, if you believe they lack the experience or ability to handle financial and legal matters. You should also discuss with your attorney the possibility of both you and your spouse dying simultaneously, or within a short duration of time. A contingency plan should include a list of persons you'd like to manage your assets and name a guardian you'd like to nominate to raise your children in your absence. The person, or trustee, in charge of the finances need not be the same person as the guardian. In fact, in many situations, you may want to purposely designate different persons to maintain a system of checks and balances. You should give careful thought to your choice of guardian, ensuring that he or she shares the values you want instilled in your children. You will also want to give consideration to the age and financial condition of a potential guardian. Some guardians may lack child-rearing skills you feel are necessary. If you fail to plan, the decision as to who will manage your finances and raise your children will be left to a court of law. Another issue to consider during the planning process is whether you'd like your beneficiaries to receive your assets directly, or to have the assets placed in trust and distributed subject to conditions and circumstances such as age, need and even incentives based on behavior and education. All too often, children receive substantial assets before they are mature enough to handle them in a prudent manner.
Planning for Death Taxes
The IRS will want to review your estate at death to ensure you don't owe them that one final tax: the federal estate tax. Whether there will be any tax owed depends on the size of your estate and how your estate plan is structured. Many states have their own separate estate and inheritance taxes that you need to be aware of. There are many effective strategies that can be implemented to reduce or eliminate death taxes, but you must start the planning process early in order to properly implement many of these strategies.
Charitable Bequests – Planned Giving
Do you want to benefit a charitable organization or cause? Your estate plan can provide support for such organizations in a variety of ways, either during your lifetime or at your death. Depending on how your planned giving is set up, it may also allow you to receive a stream of income for life, earn higher investment yield, or reduce your capital gains or estate taxes. A well-crafted estate plan should provide for your loved ones in an effective and efficient manner by avoiding guardianship during your lifetime, probate at death, estate taxes and unnecessary delays. You should consult a qualified estate planning attorney to review your family and financial situation, your goals and explain the various options available to you. Once your estate plan is in place, you will have peace of mind knowing that you have provided for yourself and your family.
Advanced Estate Planning
Estate Planning for High Net Worth Individuals
You've worked hard your whole life to provide for your family and make your loved ones more secure. Without advanced estate planning strategies, many of your hard earned assets may end up with the IRS and state taxing authorities. Our firm regularly assists affluent families with such sophisticated planning strategies as Family Limited Partnerships or Limited Liability Companies, Personal Residence Trusts, Irrevocable Life Insurance Trusts and a wide range of charitable gifting techniques to reduce federal estate taxes, gift taxes and generation skipping transfer taxes.
Family Limited Partnerships
A Family Limited Partnership (FLP) is a limited partnership among members of a family. The main advantages of forming and funding an FLP involve estate and gift tax savings and asset protection. An FLP also allows you to retain control over the transferred assets while enjoying these advantages. Once the FLP is established and your assets are transferred to it, you can make gifts of limited partnership interests to your children or other beneficiaries. This accomplishes several different estate planning objectives simultaneously. First, the value of each limited partnership interest which you give away decreases the value of your taxable estate and, consequently, any tax which your heirs would have to pay upon your death. The gifts are made using the annual gift tax exclusion, so depending on its value, you may not have to pay any gift tax on the transfer. Second, the value of the partnership interests transferred to your beneficiaries is far less than the corresponding value of the assets in the partnership. Since limited partners do not have the ability to direct or control the day-to-day operation of the partnership, a minority discount can be applied to reduce the value of the limited partnership interests which you are gifting. Furthermore, because the partnership is a closely-held entity and not publicly-traded, a discount can be applied based upon the lack of marketability of the limited partnership interest. This allows you to leverage the FLP as a vehicle to transfer more wealth to your beneficiaries, while retaining control of the underlying assets. Lastly, a properly-structured FLP can have creditor protection characteristics since the general partners are not obligated to distribute earnings of the partnership.
Qualified Personal Residence Trusts
Our homes are often our most valuable assets and hence one of the largest components of our taxable estates. A Qualified Personal Residence Trust or a QPRT (pronounced "cue-pert") allows you to give away your house or vacation home at a great discount, freeze its value for estate tax purposes, and still continue to live in it. Here is how it works: You transfer the title to your house to the QPRT (usually for the benefit of your family members), reserving the right to live in the house for a specified number of years. If you live to the end of the specified period, the house (as well as any appreciation in its value since the transfer) passes to your children or other beneficiaries free of any additional estate or gift taxes. After the end of the specified period, you may continue to live in the home but you must pay rent to your family or designated beneficiary in order to avoid inclusion of the residence in your estate. This may be an added benefit as it serves to further reduce the value of your taxable estate, though the rent income does have income tax consequences for your family. If you die before the end of the period, the full value of the house will be included in your estate for estate tax purposes, though in most cases you are no worse off than you would have been had you not established a QPRT. An added benefit of the QPRT is that it also serves as an excellent asset/creditor protection vehicle since you no longer technically own the property once the trust is established and your residence is transferred to the QPRT.
Irrevocable Life Insurance Trusts
There is a common misconception that life insurance proceeds are not subject to Federal Estate Taxes. While the proceeds are received by your loved ones free of any income taxes, they are countable as part of your taxable estate and therefore your loved ones can lose as much as half of the policy's value to estate taxes. An Irrevocable Life Insurance Trust (ILIT) is created specifically for the purpose of owning your life insurance policy. A properly established and administered trust holds the policy outside of your estate and keeps the proceeds from being taxable to your estate. The proceeds from the insurance policy can then be used to provide your estate with the liquidity to pay estate taxes, pay off debts, pay final expenses and provide income to a surviving spouse or children. The ILIT will be the policy owner and beneficiary. Once your trust is established, you can use your annual gift tax exclusion to make cash gifts to your trust. Your beneficiaries forgo the present gift (in lieu of the future proceeds) and the trustee uses the remaining gift to pay the premium on the life insurance policy. There are many options available when setting up an ILIT. For example, ILITs can be structured to provide income to a surviving spouse with the remainder going to your children from a previous marriage. You can also provide for distribution of a limited amount of the insurance proceeds over a period of time to a financially irresponsible child. Our firm is dedicated to helping clients make educated, informed decisions about their assets and will work with you and your team of financial advisors and CPAs to implement a highly sophisticated and effective estate plan that allows for the maximum transfer of assets to your loved ones.
People are increasingly using the legal system to unjustly deprive others of their life's work. Millions of new lawsuits are filed in the United States every year, many of which are frivolous or settled for sums greater than the actual liability. Business owners, professionals such as doctors, dentists, lawyers, accountants, and property owners in particular should be aware of the risks associated with conducting their business, practicing in their respective fields, and taking responsibility for others. Our law firm assists professionals, small business owners, property owners, and other clients in establishing proven, legally sound asset protection strategies to safeguard assets against potential litigation, judgments, liens, and fraud. Insurance alone does not always adequately protect against all of these threats. We help clients protect their wealth using a variety of strategies including the use of special trusts, business entities and other legal arrangements. Without a massive overhaul of our legal system, the risk and potential liability is not going to decline. In fact, it has steadily increased over the past few decades. Assets can be at risk due to a number of vulnerabilities, including:
Professional malpractice liability
Personal liability of corporate officers and directors
Lawsuits by former business partners
Personal injury suffered on your premises
Personal injury resulting from a motor vehicle accident
Liability as guarantor for the debts of another
Liability arising from misconduct
Shielding Assets from Creditors
People are increasingly using the legal system to unjustly deprive others of their life's work. Millions of new lawsuits are filed in the United States every year, many of which are frivolous or settled for sums greater than the actual liability. Business owners, professionals such as doctors, dentists, lawyers, accountants, and property owners in particular should be aware of the risks associated with conducting their business, practicing in their respective fields, and taking responsibility for others. Without a massive overhaul of our legal system, the risk and potential liability is not going to decline. In fact, it has steadily increased over the past few decades. Assets can be at risk due to a number of vulnerabilities, including: Professional malpractice liability Personal liability of corporate officers and directors Lawsuits by former business partners Personal injury suffered on your premises Personal injury resulting from a motor vehicle accident Liability as guarantor for the debts of another Liability arising from misconduct Our law firm assists professionals, small business owners, property owners, and other clients in establishing proven, legally sound asset protection strategies to safeguard assets against potential litigation, judgments, liens, and fraud. Insurance alone does not always adequately protect against all of these threats. We help clients protect their wealth using a variety of strategies including the use of special trusts, business entities and other legal arrangements. Shielding Assets from Creditors Our firm has expertise in assisting clients with the arrangement of their finances, real property and other assets in a manner that minimizes their exposure to potential creditors. We are well versed in establishing trusts, determining insurance needs, creating estate plans and organizing investments and business entities so that our clients are able to enjoy the highest level of confidence in terms of the security of their accumulated assets. A creditor who initiates litigation against a person who has placed his or her assets into a trust, a foundation, or other entity may find that there are very few collectible assets actually owned by the person they wish to sue. Assets owned by a properly structured trust, foundation, or other entity are generally not subject to claims against their beneficiaries. In addition, placing assets into an asset protection entity may have the additional benefit of removing those assets from a person's taxable estate. We know how to evaluate current client holdings and work with our clients to identify the best ways to legally protect those holdings from a variety of creditors, whether through civil suits involving negligence or malpractice. The exact strategies employed by our firm may vary depending on the client, the nature of the assets, the country of origin, and the tax regulations that apply to those assets. The ultimate goal is to effectively protect assets in a manner that is effective, legal and ethical. Our firm has a solid working knowledge of:
Domestic and offshore trusts
Domestic and offshore and domestic business entity formation
Exempt asset protections under state law
Negotiation and preparation of pre and post-marital agreements
Family Limited Partnerships
Utilizing Family Limited Partnerships as Part of Your Estate Plan
A Family Limited Partnership (FLP) is a special legal vehicle that can preserve a family business for future generations while helping to shelter assets and reduce overall gift and estate taxes.
FLPs are commonly used as part of business succession planning, business continuity plans, and often serve as an integral component of an estate plan for high net worth individuals.
A Family Limited Partnership is typically established by married couples who place assets in the FLP and serve as its general partners.
They may then grant limited-partnership interests to the children, of up to 99% of the value of the FLP's assets. When this occurs, the assets are removed from the general partners' estates, thus saving on future estate taxes. The general partners keep control of the FLP and its assets, even though they may own as little as just 1% of the asset's value.
Limited partners may receive distributions from the FLP, and enjoy certain tax benefits.
Asset protection is another attractive feature of the FLP. The partnership's assets are shielded from the limited partners' creditors. The interests in a FLP can be easily divided among family members, who may each own different amounts. The FLP enables ownership of a business to transfer to the younger generation, while allowing the senior generation to continue conducting operations and mentoring and grooming the young owners.
One of the significant benefits of a properly established and maintained FLP is that it can reduce the value of gifts to your children and grandchildren.
The value of each limited partnership interest which you give away decreases the value of your taxable estate and, consequently, any tax which your heirs would have to pay upon your death. The gifts are made using the annual gift tax exclusion, so you may not have to pay any gift tax on the transfer.
Since limited partners do not have the ability to direct or control the day-to-day operation of the partnership
A minority discount can be applied to reduce the value of the limited partnership interests which you are gifting. Therefore, the value of the partnership interests transferred to your beneficiaries may be far less than the corresponding value of the assets in the partnership. Furthermore, because the partnership is a closely-held entity and not publicly-traded, a discount can be applied based upon the lack of marketability of the limited partnership interest. This allows you to leverage the FLP as a vehicle to transfer more wealth to your beneficiaries, while retaining control of the underlying assets.
Viability of the FLP
With these significant tax benefits, it's no surprise that many FLPs have attracted scrutiny from the IRS. Many have run into various problems due to mistakes or outright abuse. Care must be taken to ensure your FLP is properly established and operated. Specifically, the IRS may look at the following issues when assessing the viability of the FLP:
It's not all about taxes.
You stand a better chance of avoiding or surviving a challenge from the IRS if you can show a significant, legitimate non-tax-related reason the FLP was created. Tax savings are an important consideration, but you must be able to demonstrate that there are other reasons, as well.
Keep your personal assets out of the FLP.
You can reasonably expect to transfer closely held stock or interests in commercial real estate into a Family Limited Partnership. However, personal property such as cars or residences will not fare well against an IRS challenge. Similarly, the FLP's assets should not be used to pay for any personal expenses. The FLP must be a legitimate business entity operated to fulfill a business purpose.
Have your FLP's assets professionally appraised.
Partners or family members should not determine the valuations or discounts for any assets transferred into the FLP. A qualified appraiser has a much better chance of withstanding IRS scrutiny.
Don't push it.
Many are tempted to put as many assets into the FLP as possible, to maximize the asset protection and tax savings benefits. Unfortunately, if the FLP is successfully challenged, a significant portion of a partner's net worth could be vulnerable to taxes or lawsuits.
Trusts & Estate Planning
Many people have preconceived notions about trusts and believe that they are only for multi-millionaires who wish to leave large trust funds to their children. However, this is far from the truth; trusts can be invaluable tools in the estate plans of millions of individuals. Trusts are simply an arrangement where one party holds property on behalf of another party. In an estate planning context, trusts are created by the person doing the estate planning (the settlor), who authorizes another person (the trustee) to manage the assets for the benefit of a third party (the beneficiaries). There are many reasons for establishing trusts including tax minimization or providing for the needs of underage beneficiaries. As you can see, there are many different types of trusts, each of which can be customized to serve a valuable purpose in accomplishing the wishes of those making gifts or planning an estate. An experienced estate planning attorney can help you assess your finances and goals to determine the best vehicles to preserve your wealth and your legacy. Some types of trusts that may be useful in estate planning are:
Trusts for minors
Many people leave money to their children or their grandchildren in a trust as part of a comprehensive estate plan. This is typically done to ensure the money is there for the children's benefit while they are younger-for support, education, medical expenses, etc. Once the children reach a certain age or achievement level (such as obtaining a bachelor's degree), they may receive money from the trust to do with as they please.
Special needs trusts
Special needs trusts are tools that enable a person to leave property to an individual with special needs. Many individuals with special needs receive government benefits. If they were to suddenly inherit money, they would be disqualified in most cases from those benefits until the inheritance was spent. Special needs trusts protect those individuals' government benefits while allowing them to have money for any extras they may need.
Married couples sometimes include trusts in their wills, or separately, for the benefit of their spouse, typically for two reasons: (1) taxes, and (2) property protection. In previous years, marital trusts were needed for some couples to take advantage of estate tax exemptions, and they may be needed in the future as the laws are expected to change. Marital trusts can also protect property from a spouse to ensure that it ultimately goes where it needs to go. For example, a husband with grown children from a previous marriage may decide to let his wife use his property after he passes, but puts it into a trust so that after she passes away it goes to his children.
Revocable living trusts
Revocable living trusts are documents completely separate from wills although they often work hand in hand with wills to carry out the decedent's wishes. Revocable living trusts are primarily used to avoid probate in states where probate is particularly cumbersome, or in a few other instances, such as when a person owns real estate in multiple states.
Irrevocable life insurance trusts
Irrevocable life insurance trusts (or ILIT's) can be used in order to move a person's life insurance proceeds outside his or her estate for estate tax purposes.
Spendthrift trusts are generally established to protect the beneficiaries' assets from both themselves and creditors. These trusts usually have an independent trustee which has complete discretion over the distribution of assets of the trust.
Estate Planning with Wills
While wills can serve as powerful estate planning tools, they are only effective if they are properly drafted to suit the needs of each individual. An estate planning attorney can review all your options with you and establish a will in a manner that ensures your wishes will be honored. Most people know about wills and their basic purpose – to ensure that one's hard earned assets go to the right beneficiaries when an individual passes away. However, wills can be used for a lot more than simply dictating who gets a person's antique lamp collection. Here's a list of some of the very valuable things a will can do:
List who gets what
The most common purpose for a will is to name which individual, or group of individuals, will receive particular property belonging to a person when he or she passes away.
Name guardians for children
Typically, a will is the document that states who should raise a person's children if something happens to the parent. The will also usually contains at least one alternate in the event the first choice cannot serve.
In many cases, a person may not want a child or loved one to receive all of the property that they are inheriting at once. Or a person may want the beneficiary to be able to use the property for a while, and then for it to pass on to someone else. In that situation, an individual may choose to use a trust. A trust holds property on someone else's behalf. In wills, trusts are commonly established for minor children, so that someone else can manage the children's money until they reach a certain age when their parents believe they will be able to manage it. Trusts are also commonly used in second marriage situations – a person may want to allow a spouse to have access to certain property while the spouse is living, but for that property to ultimately pass to the decedent's children. Trusts can help accomplish that goal.
List funeral wishes
Although this is also done in other documents too, a will commonly states whether an individual wants to be buried or cremated, and where the body should be buried or the ashes should be spread. Sometimes, wills contain other information about funeral wishes too like where it should take place and even what readings might be recited.
Wills can be great tools for tax planning in order to avoid federal or state estate or inheritance taxes. This can sometimes be accomplished by setting up various trusts.
Naming executors and trustees.
A will usually states who will be the executor of an estate, which is the person who will carry out a deceased individual's wishes listed in the will. Wills can also name the trustee of any trusts established in a will, which is the person who will be in charge of carrying out the instructions of the trusts.
While the golden years are supposed to be filled with the joys of retirement, grandchildren and travel, they are seldomly enjoyed without various other complexities that individuals encounter as they age including deteriorating health, financial concerns and family disputes. To meet these challenges, a unique area of law - elder law has taken on greater value to millions of aging Americans and their caregivers. This area encompasses many different legal disciplines, including estate planning, business succession planning, asset protection, Medicaid planning and veterans benefits. While we communicate with caregivers, including spouses, children, doctors, social works and home aides, our central focus remains our elderly clients. We work diligently to make sure the seniors we represent are protected and continue to enjoy a high quality of life as they age. Our attorneys are knowledgeable on the wide array of issues that impact the elderly and can assist you or your loved ones with the following matters:
Healthcare Planning Including Powers of Attorneys and Living Wills
Long-Term Care Planning
Selecting the Right Long-Term Care Facility
Qualifying for Public Benefits Such as Social Security, Medicaid and Veterans Benefits
Conservatorships and Guardianships
Prevention of Financial Exploitation and Elder Abuse
The high cost of long-term care has made planning a critically important issue for most middle class seniors and their families. In fact, most seniors will likely require some form of long-term care. Sadly, many of them are unprepared for the significant financial burdens it places on their family's hard earned savings. Financial devastation looms large for a family facing ongoing care at a rate of $10,000 or more per month. Our elder law firm routinely works with individuals, and their caregivers, to guide them through the challenging financial and legal decisions which occur as they grow older and require ongoing care. While there are significant federal and state benefit programs which were designed to assist the elderly, far too many people fail to understand how these programs function and what is required for eligibility. We work closely with our clients to ensure they have an understanding of the many legal options to protect assets and qualify for benefits that will help pay for long-term care.
Long-Term Care Insurance
While some seniors are able to afford private care, the cost of long-term care can easily wipe out savings of all but the wealthiest families in a matter of years. Those who have planned ahead by purchasing long-term care insurance have a degree of certainty and peace of mind, knowing that they have a lesser need to rely on other sources in the future. Unfortunately, many can't afford the high cost of long term care insurance or worse, because of age or medical conditions, cannot qualify for long term care insurance. If you do have long-term care insurance, you should be aware of what your policy covers. Many policies have high deductibles or provide for only a short period of care in a medical facility. In fact, many who have long-term care insurance still have to resort to Medicaid to pay for their care.
The other option to pay for care is Medicaid. A joint federal-state program, Medicaid provides medical assistance to low-income individuals, including those who are 65 or older, disabled or blind. Medicaid is the single largest payer of nursing home bills in America and serves as the option of last resort for people who have no other way to finance their long-term care. Although Medicaid eligibility rules vary from state to state, federal minimum standards and guidelines must be observed. While Medicaid eligibility with respect to long-term care was not overly restrictive in the past, there has been a steady drift towards more complex and limiting rules, the latest being the Deficit Reduction Act of 2005 which went into effect in 2006. These changes have resulted in complex eligibility requirements for those in need of Medicaid benefits. It's no longer as easy as reviewing one's bank statements. There are a myriad of regulations involving look-back periods, income caps, transfer penalties and waiting periods to plan around.
Far too often, seniors wait until they fall ill and require care to seek the assistance of an attorney. Unfortunately, in waiting for a crisis, seniors and their caregivers often encounter more hurdles for qualification and exorbitant levels of stress during an already difficult time. Our attorneys routinely assist clients with pre-Medicaid planning, developing a long-term plan which seeks to protect assets through traditional estate planning functions (asset protection tools such as trusts, life estates and annuities) while coordinating private insurance, veterans benefits and other resources which may be available to pay for future care, without draining all of the family's assets.
Helping You Qualify for Medicaid
Even if you haven't taken time to plan for Medicaid eligibility, there are a number of tools at your disposal to obtain eligibility. Our firm routinely assists clients who are just starting the process and need to qualify immediately. In these situations, we work directly with seniors, caregivers, social workers, care facilities and healthcare providers to identify the best environment for your ongoing care. We work with you to complete the Medicaid application and when necessary, "spend down to qualify" in a meaningful way which won't waste your hard earned assets but instead benefit your loved ones for years to come. Our law firm has the experience and knowledge to help you avoid the financial ruin associated with the high cost of long-term care. Contact us today to learn more about the issues surrounding Medicaid eligibility and to begin the planning and application process.
Commercial Real Estate
We represent clients in a wide range of commercial real estate matters from the purchase of raw land, to the sale of developed property and everything in between. We work closely with each client in order to ensure protection of all financial and legal interests. If you are considering buying, selling, leasing, or investing in commercial real estate property, consult our firm to ensure that your transaction is structured in the most optimal manner possible. Our firm assists client with the following commercial real estate issues:
Purchase and Sale of Real Property
Construction (New Construction and Renovation Projects)
Zoning and Variance Approvals
Drafting and Negotiation of Leases
Foreclosure and Eminent Domain Matters
Residential Real Estate
Buying or selling a home is the most significant financial transaction that many individuals undertake in their lifetime. While this can be an exciting time, without the proper legal guidance, the process can be frustrating, overwhelming and more expensive than necessary. Even if there are no obvious disagreements between the Buyer and Seller, it is advisable for each party to enter into real estate transactions with one's own attorney who can help steer them away from common pitfalls and facilitate a smooth transfer of property. We represent buyers, sellers and financial institutions in various real estate matters ranging from drafting a purchase and sale contract to obtaining the final title insurance policy.
We Offer Our Clients Broad-Based Legal Real Estate Advice
We offer our clients broad-based legal real estate advice and representation in the following transactions:
Real Estate Sales Transactions
Mortgage-Based Financing Transactions
In Addition To Real Estate Transactions
we assist with the following residential and commercial real estate issues:
Property Tax Protests (Tax Certiorari)
Breach of Contract
disclaimer:pricing and availability subject to change.
The Law Offices of Steven Bracco has locations in Long Island and Brooklyn, NY and works closely with clients to assist them in their probate, estate planning, elder care and real estate law matters. With over 20 years of experience in the aforementioned areas, Attorney Steven Bracco provides personal attention and responsiveness to every client.