Trusts, Estates, & Elder Law

While it is always advisable to seek legal advice from an attorney with experience in estate planning, here are the key steps to create a valid will in New York:

Age and Capacity: You must be at least 18 years old and of sound mind to create a valid will in New York. This means you must have the mental capacity to understand the nature of your assets, who would naturally inherit if you did not have a will, and the consequences of creating a will.

Written Document: Your will must be in writing. While New York does not require a specific format, it is recommended to type or print the will for clarity. Handwritten wills (holographic wills) are generally acceptable if they meet certain conditions, such as being entirely in your handwriting and properly executed.

Declaration of Testamentary Intent: Clearly state at the beginning of the document that it is your last will and testament. This declaration shows your intention to create a legally binding will.

Appointment of Executor: Name an executor who will carry out your wishes and administer your probate estate after your passing. The executor should be a trusted individual who is willing and capable of fulfilling this role.

Distribution of Assets: Clearly state how you want your assets to be distributed after your death. Specify which individuals or organizations will receive your property, including any specific bequests or instructions.

Witnesses and Signature: In New York, your will must be signed by you (the testator) in the presence of at least two witnesses who are not beneficiaries named in the will. The witnesses must see you sign the will, and then they must sign the will themselves.  You also must declare the will to be your last will and testament, to the witnesses.

Self-Proving Affidavit: Although not required, it is recommended to include a self-proving affidavit with your will. This affidavit, signed your witnesses, can help simplify the probate process by providing sworn statements regarding the validity of the will.

It is essential to keep the original signed will in a safe and accessible place. Inform your loved ones or executor of its location and any relevant instructions. Coughlin & Gerhart maintains original wills for our clients to ensure they are available when needed.

Here’s what typically happens:

Appointment of an Administrator: Instead of an executor, the court will appoint an administrator to manage the estate. The administrator is usually a close family member or another interested party. The court follows a specific order of priority, pursuant to statute, when selecting the administrator.

Distribution of Assets: The assets of the deceased person will be distributed according to the New York laws of intestacy. These laws dictate how the estate is divided among surviving relatives, typically prioritizing spouses, children, parents, and more distant relatives. The distribution is determined by the degree of familial relationship and the number of surviving relatives.

No Designation of Guardianship: If there are minor children left behind and no guardian is designated in a will, the court will determine who will have custody and responsibility for their upbringing and medical care.

Probate Process: While the administration of an estate without a will is similar to probate, it is referred to as administration proceedings. The court oversees the process, including collecting and valuing assets, paying debts and taxes, and distributing the remaining estate to the lawful heirs pursuant to statute.

It is important to note that the laws of intestacy may not align with an individual’s specific wishes for asset distribution. Without a will, the individual loses control over how their estate is divided, which can lead to unintended consequences. To ensure your assets are distributed according to your preferences, it is advisable to consult with an estate planning attorney and create a valid will or other estate planning documents. At Coughlin & Gerhart, we can assist you in estate planning to ensure that you are able to make these critically important decisions for yourself and your loved ones.

Probate Avoidance: One of the primary advantages of a trust is the ability to avoid or minimize the probate process. Assets held in a trust are not subject to probate, which can be time-consuming, costly, and subject to public scrutiny. By transferring assets into a trust, they can be distributed to beneficiaries more efficiently and privately.

Privacy and Confidentiality: Unlike a will, which becomes a matter of public record during probate, a trust provides privacy and confidentiality. Trusts allow for the confidential transfer of assets to beneficiaries without public disclosure of personal financial details or family arrangements.

Incapacity Planning: Trusts can be effective tools for incapacity planning. A revocable living trust, for example, allows you to appoint a successor trustee who can manage your assets and make financial decisions on your behalf if you become incapacitated. This helps avoid the need for court-appointed guardian.

Control and Flexibility: Trusts offer significant control and flexibility over the management and distribution of assets. You can specify how and when assets should be distributed to beneficiaries, including any conditions or restrictions. This can be particularly useful in cases where beneficiaries are minors, have special needs, or lack financial maturity.

Asset Protection: Certain types of trusts, such as irrevocable trusts, can provide asset protection benefits. Assets held within these trusts may be shielded from creditors, lawsuits, or other potential risks. This can help preserve family wealth for future generations.

Tax Planning: Trusts can be used for effective estate tax planning, particularly for individuals with larger estates. Through various trust structures, such as a bypass trust or generation-skipping trust, you can potentially minimize estate taxes and maximize the preservation of assets for your intended beneficiaries.

The experienced attorneys at Coughlin & Gerhart can help tailor a trust-based estate plan that aligns with your objectives, provides asset protection, and maximizes the benefits available under New York state laws.

While the specific grounds for contesting a trust may vary depending on the circumstances, some common grounds for contesting a trust in New York include:

Lack of Capacity: A trust may be contested if the person who created the trust (the grantor) was not of sound mind or did not have the legal capacity to understand the nature and consequences of their actions.

Undue Influence: If there is evidence that the grantor was coerced, manipulated, or unduly influenced by another person to create or modify the trust in a way that goes against their true intentions, the trust may be contested on the grounds of undue influence.

Fraud or Misrepresentation: If it can be shown that the creation or modification of the trust involved fraud, deceit, or misrepresentation, it may be possible to contest the trust based on these grounds.

Mistake or Duress: A trust may be contested if there is evidence that the grantor made a mistake or acted under duress at the time of creating or modifying the trust, thereby invalidating their true intent.

Lack of Formalities: To be valid, certain formalities must be followed when creating or modifying a trust in New York. If these formalities, such as proper execution were not followed, the trust may be subject to contestation actions when establishing the trust.

To create a valid health care proxy in New York, the following legal requirements must generally be met:

Legal Capacity: The person creating the health care proxy (known as the “principal”) must be at least 18 years old and of sound mind when executing the document.

Voluntary and Informed Consent: The appointment of a health care agent (or “proxy”)  must be made voluntarily, without any undue influence or coercion. The principal should have a clear understanding of the purpose and implications of the document.

Written Format: The health care proxy must be in writing and signed by the principal. The principal should have their address and the document should be witnessed by two disinterested witnesses.  All showing their addresses and the date the document was signed.

Designation of Health Care Agent: The health care proxy should clearly identify the appointed health care agent (or “proxy”), including their name, contact information, and any specific instructions or limitations for decision-making.

Alternate Agents: The principal may also designate alternate health care proxies who can step in if the primary agent is unable or unwilling to fulfill their role.  However, only one proxy may act at a time.

Effective Date: The health care proxy becomes effective when the principal is determined by their attending physician, to lack the capacity to make medical decisions.

Hiring a law firm such as Coughlin & Gerhart, with substantial experience in estate planning, offers several benefits:

Expertise and Knowledge: We have in-depth knowledge of New York state laws and regulations concerning wills and trusts. We stay updated on changes in the law and can provide accurate and informed advice tailored to your specific needs and goals.

Customized Planning: Coughlin & Gerhart can help you create a comprehensive estate plan that aligns with your unique circumstances, ensuring your wishes are properly documented. We can provide guidance on complex issues, such as minimizing estate taxes, protecting assets, and planning for incapacity.

Avoiding Mistakes: DIY estate planning can lead to costly mistakes and unintended consequences. We have the experience to identify potential pitfalls, address legal complexities, and draft legally sound documents that accurately reflect your intentions.

Mitigating Family Disputes: Properly drafted wills and trusts can help minimize the likelihood of family conflicts and disputes over estate distribution. We can provide guidance on structuring your estate plan to reduce potential disagreements among beneficiaries.

Administration Assistance: The attorneys at Coughlin & Gerhart can guide your loved ones through the probate or trust administration process, ensuring compliance with legal requirements, resolving complex issues, and minimizing the burden on your family during a difficult time.

Peace of Mind: By hiring an attorney, you gain the assurance that your estate plan is well-crafted, legally valid, and designed to protect your interests and loved ones. This peace of mind comes from knowing your affairs are in order and that your wishes will be carried out effectively.

Here are the key elements to consider when creating a valid power of attorney in New York:

Legal Capacity: The person creating the power of attorney, known as the “principal,” must be at least 18 years old and of sound mind.

Intent: The principal must have the intention to grant authority to another person, known as the “agent” or “attorney-in-fact,” to act on their behalf in specific matters.

Execution: The power of attorney must be in writing and signed by the principal. It must also include the signature of a notary public or be witnessed by two individuals who are not the agent and have no financial interest in the document.

Agent’s Acceptance: The agent must sign an acknowledgment stating their acceptance of the appointment and responsibilities associated with acting as the attorney-in-fact.

It is generally recommended to review your estate plan documents periodically, as life circumstances and laws can change over time. While there is no hard and fast rule for how often you should review your estate plan, here are some guidelines:

Major Life Events: Review your estate plan documents whenever you experience significant life events such as marriage, divorce, birth or adoption of children, or the death of a family member. These events may necessitate updates or changes to your estate plan to reflect your current wishes and circumstances.

Changes in Financial Situation: If your financial situation significantly changes, such as acquiring substantial assets, starting a business, or experiencing a significant change in income, it is advisable to review your estate plan to ensure it aligns with your new financial goals and needs.

Changes in Relationships: If there are changes in your relationships with beneficiaries, trustees, or guardians named in your estate plan, consider reviewing and updating your documents to reflect these changes and your current intentions.

Changes in Laws: Stay informed about changes in relevant laws, including tax laws and estate planning regulations. If there are significant legal changes that may affect your estate plan, it is wise to consult with an attorney to assess any necessary updates.

As a general rule of thumb, reviewing your estate plan every three to five years, even in the absence of major changes, is a good practice to ensure your documents remain up to date and aligned with your current wishes. It is important to consult with an experienced estate planning attorney to help guide you through the review process and provide professional advice tailored to your specific circumstances. At Coughlin & Gerhart, we are available to review and evaluate your estate planning documents, even if they were drafted by a different lawyer.

Some of the key exempt resources in a Medicaid application in New York include:

Primary residence: The primary residence can be preserved for the benefit of a non-institutionalized spouse.

Personal belongings and household goods: Personal items such as clothing, furniture, appliances, and jewelry are typically exempt from consideration.

One vehicle: A single vehicle used for transportation is usually exempt from being counted as an available resource.

Irrevocable burial funds or prepaid burial plans: Funds placed in an irrevocable burial trust may be exempt.

It’s important to remember that these exemptions may have specific requirements and limitations. Please feel free to contact Coughlin & Gerhart as we can assist with understanding the complete list of exemptions and ensuring that your assets are protected while applying for Medicaid.

In New York, the look-back period for Medicaid is currently 60 months (5 years). This means that when applying for Medicaid, the government will review the applicant’s financial transactions and asset transfers made within the preceding 60 months. If any assets were transferred for less than fair market value during this period, it may result in a penalty period of Medicaid ineligibility. The purpose of the look-back period is to prevent individuals from transferring assets solely to qualify for Medicaid benefits and ensure that applicants meet the financial eligibility requirements in a fair and equitable manner.

Yes, Medicaid qualification rules can differ for married and single applicants. In the case of married applicants, both the income and assets of both spouses may be considered in determining eligibility for Medicaid. There are specific rules regarding spousal impoverishment that aim to protect the spouse who is not applying for Medicaid. These rules allow the non-applicant spouse to retain a certain amount of income and assets. Single applicants, on the other hand, generally have their own income and assets assessed individually without considering a spouse’s financial situation.

A spousal refusal is a legal strategy used in New York for Medicaid applications. It allows a non-applicant spouse to refuse to contribute their income and resources towards the cost of the applicant spouse’s long-term care. By invoking spousal refusal, the non-applicant spouse protects their assets from being considered in the Medicaid eligibility determination. However, it’s important to note that while this strategy can safeguard the non-applicant spouse’s assets, it may result in a support petition being brought by the Department of Social Services. Spousal refusal is a complex legal tactic that requires careful consideration and expert advice from an attorney familiar with New York Medicaid laws. We encourage you to contact us at Coughlin and Gerhart to discuss your Medicaid planning needs.

Yes, it is recommended to have an attorney for a Medicaid application in New York. Medicaid rules and regulations can be complex and navigating the application process can be daunting. An experienced attorney who specializes in Medicaid planning and applications can provide invaluable assistance.

At Coughlin & Gerhart, we understand the eligibility requirements, exemptions, and strategies to protect your assets while qualifying for Medicaid. We can guide you through the documentation process, assist with gathering the necessary financial information, and help you navigate any potential challenges or issues that may arise.

A gift/note transaction refers to a specific strategy used in Medicaid planning to protect assets and qualify for Medicaid benefits. In this transaction, an individual transfers assets, typically in the form of a gift, to another person or entity, while simultaneously creating a promissory note as evidence of a loan agreement.

The purpose of this transaction is to reduce the individual’s countable assets, thereby meeting Medicaid’s asset limit requirements. By gifting assets and documenting them as loans through promissory notes, individuals can effectively shield their assets from being considered when determining Medicaid eligibility. The promissory notes serves as a way to pay the nursing home during a planned disqualification period for making the gift.

The use of gift/note transactions must comply with Medicaid’s rules and regulations to avoid penalties or disqualification. These transactions should be conducted with careful planning and professional advice to ensure they meet legal and Medicaid requirements.

In an Article 81 guardianship proceeding in New York, the burden of proof falls on the petitioner, who is seeking the appointment of a guardian for an incapacitated person. The petitioner must provide clear and convincing evidence to establish the need for guardianship.

The burden of proof in an Article 81 proceeding is higher than a simple preponderance of the evidence but lower than the “beyond a reasonable doubt” standard used in criminal cases. “Clear and convincing evidence” means that the evidence presented must be highly and substantially more probable to be true than not.

The petitioner must demonstrate to the court that the alleged incapacitated person lacks the capacity to manage their personal and/or financial affairs, and that the appointment of a guardian is necessary to protect their interests. This requires presenting detailed evidence, witness testimonies, and other relevant documentation.

It’s important to consult with an attorney experienced in Article 81 proceedings to understand the specific requirements and prepare a strong case to meet the burden of proof. The attorneys at Coughlin & Gerhart can guide you through the process and help gather the necessary evidence to support the guardianship petition.

An Article 81 guardian in New York has several important responsibilities to fulfill while acting in the best interests of the incapacitated person:

Personal Needs: The guardian is responsible for ensuring the personal needs of the incapacitated person are met. This includes making decisions related to their healthcare, living arrangements, and overall well-being.

Financial Management: The guardian is tasked with managing the incapacitated person’s finances and assets. This involves paying bills, managing income and expenses, handling investments, and protecting the person’s financial interests.

Decision-making: The guardian has the authority to make decisions on behalf of the incapacitated person, but these decisions should always prioritize the person’s wishes, preferences, and values to the greatest extent possible.

Reporting: The guardian is required to provide regular reports to the court, detailing the person’s condition, the actions taken, and the management of their personal and financial affairs.

Advocacy: The guardian serves as an advocate for the incapacitated person, protecting their rights and ensuring their voice is heard in legal and administrative proceedings.

Regular Monitoring: The guardian must regularly monitor the well-being and needs of the incapacitated person, adjusting their actions and decisions accordingly.

It’s crucial for an Article 81 guardian to act in the best interests of the incapacitated person, maintain transparency, and comply with all legal and fiduciary obligations.

In New York, various parties can apply to be an Article 81 guardian, subject to court approval. The following individuals or entities may seek guardianship:

Family Members: Spouses, adult children, parents, siblings, or other relatives of the incapacitated person can apply to be a guardian. The court generally gives preference to family members when determining suitable guardians.

Friends or Close Associates: Individuals who have a close relationship with the incapacitated person, such as close friends or trusted associates, may apply to become their guardian.

Non-Profit Organizations: Certain non-profit organizations, particularly those specializing in guardianship services or advocacy for individuals with disabilities, may seek appointment as a guardian.

Professional Guardians: In some cases, a professional guardian may be appointed. These are individuals or entities who are specifically trained and licensed to serve as guardians.

The court will evaluate each applicant’s qualifications, suitability, and their ability to act in the best interests of the incapacitated person. Factors such as the applicant’s knowledge, experience, integrity, availability, and willingness to serve will be considered during the selection process.