The attorneys at Thomas Tangney Esq LLC understand the emotional difficulties involved in drafting a Last Will & Testament, skilled nursing facility placement and assisting with the administration of an estate when a loved one has passed away. We provide experienced and compassionate attorneys to assist you every step of the way. We treat every client like a member of our family. For your convenience, we also provide free at-home consultations.
Power of Attorney, Health Care Proxy and Living Will
An ordinary power of attorney is an agreement between certain parties where one party, called the principal, agrees to allow another party, called the agent, to act on behalf of the principal. In the estate planning context, the acts are usually regarding financial transactions. A “durable” power of attorney is designed to remain in force after the principal’s disability. A properly drafted and executed durable power of attorney can ensure that the court will not have to appoint a guardian or conservator to make financial decisions or execute financial transactions upon one’s mental or physical incapacity. It also allows for gift giving authority in the agent if specifically authorized. This document should be part of every estate plan. Powers of attorney terminate upon the death of the principal.
Although a durable power of attorney is good for allowing another to make financial decisions it does not address personal decisions such as medical procedures or medical treatments upon incapacity. A health care proxy appoints an agent to make such decisions if you cannot. For example, if you are comatose or otherwise unable to make an informed decision on your own as to a certain medical procedure or whether you need to be institutionalized in a hospital or nursing home, the person you appoint will make that decision consistent with your specific instructions that you included in your health care proxy. If you do not have a health care proxy, state law will govern such health care decisions.
A living will is an estate planning necessity. This legal document addresses the situation where you are terminally ill or in a permanent vegetative state and there is no likelihood of recovery. In most instances, it directs physicians not to artificially prolong your life under these circumstances. If you choose, the living will can alternatively state that you want your life prolonged by artificial means. In either event, a living will allows your family, friends and doctors to know your wishes and relieves loved ones from having to make difficult decisions during difficult times. Drafting a living will is a kind gesture that helps alleviate some of the emotional trauma that is involved at a time when a family member’s condition becomes terminal.
Last Will & Testament
A Last Will & Testament is a legally binding declaration of who will receive your property upon your death. If you die without a Will, New York State Intestacy laws will determine how and to whom your assets will be distributed which may be contrary to your wishes. A well drafted Will gives you the security that your family heirlooms and property will be distributed according to your wishes to family, friends or even charitable organizations.
Certain types of Wills can also include tax language to help reduce estate taxes and for families with minor or disabled beneficiaries you can create testamentary trusts and appoint a guardian for your minor children.
Trusts can be very effective tools in your estate plan. A properly drafted and funded trust can avoid probate, assist in Medicaid eligibility, provide creditor protection and create tax advantages.
A trust is a legal agreement whereby a person appointed as the “Trustee” holds legal title to property for the benefit of the beneficiaries. There are two types of trusts: testamentary (created by a Will) and inter-vivos (created during the lifetime of the creator/grantor). The following descriptions of some commonly used inter-vivos trusts:
Revocable Living Trust
A revocable trust is a device where the person creating and funding the trust, known as the “Grantor”, can maintain control over the Trust assets during their lifetime, retain the right to revoke or amend the trust, provide for automatic management of assets in the event of physical or mental incapacity and potentially avoid probate at death. A revocable trust does not provide any tax saving benefit upon your death since you retain control over the trust assets during your lifetime but by avoiding probate you can eliminate the possibility of a disinherited heir “contesting” your estate which would incur substantial legal costs to defend and delay distribution to your intended beneficiaries.
Irrevocable Living Trusts
There are various types of irrevocable trusts or trusts that cannot be altered or amended. Specifically, one type of trust can be created to qualify for Medicaid benefits at a later time while others are created to remove assets from your estate for IRS purposes thereby reducing or completely eliminating estate taxes upon your death. The following is a list of Irrevocable Trusts commonly used for estate planning purposes:
- Qualified Personal Residence Trust (QPRT)
- Irrevocable Life Insurance Trust (ILIT)
- Charitable Remainder Trust
- Intentionally Defective Grantor Trust
- Income Only Trust
- Supplemental Needs Trust
- Credit Shelter Trust
- Grantor Retained Annuity Trust (GRAT)
ELDER LAW AND MEDICAID PLANNING
Medicaid planning is the practice of preserving assets by securing government benefits to cover the expenses of home care or long term care (skilled nursing facility) which can cost as much as $16,000.00 a month. We can help you secure the best available health care for you (or your loved one) while preserving your hard-earned assets so that you can leave a legacy to your children, grandchildren or other beneficiaries. Early planning is essential to preserving your assets which allows you to make lifetime gifts outright to family members or to a Trust assuring that your assets will not be depleted by being spent on your health care.
Due to the complexities of the Social Services Law, County guidelines on Medicaid eligibility and the different transfer rules for Community based Home Care (stay at home) services and Chronic Care (nursing home), competent counsel well versed in this specialized area is crucial to assuring that your application is approved and your assets preserved.
PROBATE AND ESTATE ADMINISTRATION
Probate is the legal process by which a deceased person's property is distributed to legatees or heirs by virtue of the terms of a Last Will & Testament. Probate is a Latin word which means “to prove”. The Will is submitted to the Surrogate’s Court of the county in which the decedent was a domiciliary and the Judge (Surrogate of the County) determines if the Will is valid. If you are named the Executor of a Will, the responsibilities may seem overwhelming. We can help you each step of the way with marshaling and protecting assets, paying bills of and claims against the estate, making distributions to beneficiaries, preparing accountings and filing any necessary tax returns.
An Administration proceeding is commenced when a person passes away without a Last Will & Testament. The process is similar to a probate proceeding except that the New York Estates Powers & Trust Law statute (EPTL § 4-1.1) provides the order in which a family member can be appointed the fiduciary of the Estate to marshal and distribute all of the assets and pay any debt. In addition, New York State Law determines who will receive your property at death.