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Power Of Attorney Kew Gardens Ny: Difference Between A General And A Limited Poa

Davidov Law Group

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The process of estate planning should ideally be a broad and comprehensive one. Recording your wishes regarding the distribution of your assets is only part of what you should take into consideration. You should also address the postmortem aspect.

On the other side of the coin, you should address the period of time that would logically precede your death. This can include the execution of a power of attorney to appoint someone to act on your behalf in the event of your incapacitation.

Power of Attorney Kew Gardens NY

Different Types Of Powers Of Attorney

There are different types of powers of attorney. These legal devices are used in all different areas of the law. One type of power of attorney is a general power of attorney.

With a general power of attorney you are giving the agent or attorney-in-fact that you choose the power to act in a sweeping, comprehensive manner. There are no particular limitations. The agent could do anything that you can do for yourself.

Another type of power of attorney is a limited power of attorney. With this type of power of attorney you give someone the ability to act on your behalf under limited circumstances.

For example, let’s say that you own a real estate investment company. You could empower your assistant to sign certain types of business documents on your behalf. His or her ability to act on your behalf would be limited by the precise terms of the document.

Durable Power Of Attorney

Whether it is limited or general, a standard power of attorney that is not designated as durable would no longer be in effect if the grantor was to become incapacitated. If you want to appoint someone to act on your behalf in the event of your incapacity, you should execute a durable power of attorney.

If you don’t execute a durable power of attorney naming your own hand-picked decision-maker, a guardian could be appointed by the state to act on your behalf if you become incapacitated.

A guardianship proceeding can be lengthy, and the need for immediate decision-making may exist. In addition, the guardian that is chosen by the court may not be someone that you would have chosen. And, members of your family may not agree with regard to the optimal course of action. They could clash in court, delaying things even further as hard feelings start to develop.

You can prevent all of these negative consequences if you take the time to execute a durable power of attorney naming your own hand-picked decision-maker. Hopefully you will never become incapacitated, but if you do find it difficult to handle your own affairs late in your life you will have an effective plan in place.

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Everyone should have an estate plan in place. If you die without leaving behind any instructions with regard to the transfer of your property you will die intestate. Under these circumstances, the state will be forced to step in and sort things out.

Intestate Succession Laws

The state of New York will make an effort to find your next of kin if you die intestate. In many cases blood relatives will come forward, so there will be no particular need to conduct an exhaustive search.

There are clear-cut rules of succession, but they vary slightly from state to state. Generally speaking, your closest living blood relative or relatives inherit the intestate property that you leave behind.

In the state of New York, if you have children but no living spouse, your children would inherit all of your intestate property. Conversely, if you leave behind a surviving spouse but no children, your surviving spouse would be your sole heir.

Your parents would inherit all of your intestate property if you had no children and no surviving spouse. State law would allow for your siblings to inherit everything if you had no surviving parents, children, or spouse.

No Will, No Living Relatives

If you die without a will or any other estate planning document expressing your final wishes and you have no relatives still alive, the state can capture your resources under escheat laws.

There would be a three-year period of time during which a relative can come forward. If there are sufficient resources to finance such an effort, the court may allow a court-appointed personal representative to conduct a search.

If this period of time elapses without anyone materializing to claim an inheritance, the coffers of the state of New York would absorb the intestate estate.

Avoiding Intestacy

Intestacy succession laws would come into play if you die without a will or any other estate planning documents. There is no reason to submit to these specific parameters. You could be certain that your assets are distributed according to your preferences by executing an estate plan.

Many people go through life without making any plans for something that is absolutely inevitable because they think that they will always have time to handle the matter later on. In fact, no one has a crystal ball, and people pass away unexpectedly every day.

Another thing to take into consideration if you are procrastinating is the fact that incapacity is common among elders. You may not be in a position to execute a valid estate plan if you put it off until you are no longer capable of sound decision-making.

Intestacy is really not an option for responsible adults. If you are currently going through life without an estate plan, feel free to contact our firm to schedule your assessment.

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Estate planning is essential for adults of all ages. This is especially true for married people who have children.

When you hear about tragic circumstances that befall others because of estate planning error you understand why everyone should have a good estate plan. We are all day to day as they say in the sports world. This is simply the human condition, and there is nothing anyone can do about it.

Ordinary people should certainly take steps to make sure that their spouses and children are provided for, but wealthy people have yet another layer of concerns.

The estate tax can absorb a significant percentage of the wealth that you are leaving behind if you have assets that exceed the exclusion amount. At the current time the maximum rate of the federal estate tax is 40 percent, and here in New York we have a state-level estate tax as well.

THE STEVE MCNAIR ESTATE

With the Super Bowl behind us, here’s the story of a football player who did not take his estate planning game seriously. The onetime football star Steve McNair was killed in 2009, and he was paid extraordinarily well as a top rate NFL quarterback for years. He had not taken the time to execute a last will or any other type of an estate plan.

His assets were subject to estate taxes. This is one of the reasons why his resources were frozen in probate after he passed away. Because he didn’t have an estate plan he hadn’t positioned his assets with tax efficiency in mind.

When you draw up a last will you should consider the matter of estate administration. Somebody has to actually do all the legwork as it were to make your wishes a reality.

This individual is called the executor or executrix. An executor is a male who serves this role, and a female estate administrator is called an executrix.

In cases when someone dies without having executed a last will the Surrogate’s Court is forced to name a personal representative to handle the estate administration tasks. In the case of Steve McNair his widow was named the personal representative.

McNair had a home built for his mother in Mississippi years before his death, a ranch that sits on 45 acres. She was under the impression that this ranch was a permanent gift to her.

McNair’s surviving spouse didn’t see it this way at all because the house was in her deceased husband’s name. As the personal representative of the estate she had the right to demand rental payments from Steve McNair’s mother. She asked $3000 a month in rent.

Unfortunately, Lucille McNair could not produce this type of money on a monthly basis to remain in the home. She moved out, and she took her belongings with her.

McNair’s widow took things a step further and demanded that Lucille pay over $50,000 to account for the things that she took, though the late quarterback’s mother says that these items were her personal property.

It is unlikely that Steve McNair wanted his mother treated this way, and he could have prevented it with the proper estate planning.

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There are many different ways to arrange for the transfer of property to your children. The optimal course of action will vary depending on your objectives and the unique nature of your circumstances.

Joint tenancy is one option. A joint tenant is a co-owner of property. You could potentially add your child to your home deed or the title of some other type of property. He or she would become a joint tenant.

Under right of survivorship, he or she would inherit the entirety of the property after you die. This transfer would take place outside of the process of probate.

Probate is a legal process that comes into play when you maintain direct, sole possession of property until your death. It is not inherently negative, but it can be time-consuming. You can eliminate this step by arranging for asset transfers that take place outside of the process of probate.

Joint Tenancy & Medicaid Planning

In addition to the probate avoidance angle, joint tenancy can be useful for those who are engaged in Medicaid planning. Medicaid pays for most of the long-term care that is received by seniors in the United States. This is because Medicare doesn’t pay for long-term care.

To qualify you must have very limited financial resources, but you can maintain ownership of your home. However, the Medicaid program can seek recovery of monies spent after you die through the attachment of your property.

If you were to name your child as a joint tenant of your home, he or she may be able to assume ownership of the entirety of the home without facing the prospect of attachment by the Medicaid recovery unit.

Drawbacks of Joint Tenancy

The question of whether or not you should create a joint tenancy with your child is a complicated one. We have briefly outlined some of the positives, but there are drawbacks as well.

When it comes to Medicaid, there is a five year look back. You can’t find out that you need long-term care today, make your daughter the joint tenant of your home tomorrow, and qualify for Medicaid the next day. If you give away assets within five years of applying for Medicaid, a penalty is imposed. This penalty delays your eligibility.

Therefore, to use joint tenancy as a Medicaid planning strategy you have to act well in advance of applying for the program. You would be divesting yourself of full ownership of your property before there is any actual need to do so.

As a result, the property would be subject to attachment if your joint tenant was to experience financial difficulties. He or she would also have to sign off on the sale if you decided that you wanted to sell the home, and this is another drawback.

Learn More About Joint Tenancy

If you would like to learn more about joint tenancy, download our free special report on the subject. To access your copy of the report click this link and follow the simple instructions: The Trouble With Joint Tenancy.

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Most people have heard about last will challenges, but can you challenge a trust? If you look for the answer to this question on the Internet you may get some confusing answers.

Popular Misconception

Before we talk about trusts, let’s talk about last wills first. A will must be admitted to probate before the heirs to the estate receive their inheritances. It is up to the probate court to examine the will to determine its validity.

Because of this inherent court involvement it is relatively easy to challenge a last will. The will is in the hands of the court already. The court is charged with the responsibility of determining whether or not it is valid. Therefore, the entire process is set up to allow for challenges to the validity of the will.

Now, back to trusts. When you hear the above, you may immediately think that you could use a trust rather than a will to avoid challenges. There are those who contend that a trust will prevent a challenge.

When you arrange for asset transfers through the utilization of a trust rather than a last will, the transfers take place in a direct manner outside of probate. The trust is not admitted to the probate court like a will would be, so there is no built-in forum within which a challenge could be presented.

This does not mean that it is impossible to challenge a trust. You could challenge the terms of a trust by initiating a lawsuit.

No-Contest Clauses

There are those who will contend that you can eliminate this possibility by including a no-contest clause within your trust. A no-contest clause would stipulate the total disinheritance of anyone who challenges the terms of the trust.

Let’s say that your father creates a trust late in his life and makes you a beneficiary. He got remarried when he was in his eighties, and you are not receiving as much as some of the newer people in his life. You feel as though he was not of sound mind when he created the trust agreement. You have reason to believe that he was unduly coerced by his wife. The trust includes a no-contest clause.

If you initiate a lawsuit to challenge the terms of the trust and you lose, you will in fact be disinherited entirely. Therefore, a no-contest clause can certainly serve as a powerful disincentive, because you would be taking a big risk.

However, such a clause does not make it impossible for you to challenge a trust. You could win the lawsuit and you would not be disinherited, but others who thought they were protected by the no-contest clause may fact be left out in the cold.

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You may get the impression that a trust of any kind will provide asset protection. The idea is that you are divesting yourself of personal ownership of property that you convey into a trust.

This is not entirely true. Let’s look at some of the details.

Revocable Living Trusts

Revocable living trusts are very popular, and part of the appeal lies in the fact that you can retain control of assets that you convey into this type of trust.

A trust involves the grantor, who is the person who creates the trust; the trustee, the individual or entity that administers the trust; and the beneficiary, who is the person that receives distributions out of the trust.

When you create a revocable living trust you are the grantor. Even though you are the grantor, you may also act as both the trustee and the beneficiary while you are alive and of sound mind. Because of this, you have full control of the assets that you have conveyed into the trust.

Beyond this, remember, this is a revocable living trust. Aside from the control that you retain while the trust is active, you can actually revoke it at any time. It would no longer exist, and the assets that you have conveyed into it would become your personal property once again.

Because you are retaining incidents of ownership, the assets that have been conveyed into the trust are not going to be protected from tax collectors, creditors or litigants seeking redress.

You may be wondering why anyone would want to create a revocable living trust given the fact that they do not provide asset protection. Even though you retain a great deal of control, revocable living trusts facilitate the transfer of assets outside of the process of probate. They are useful as a probate avoidance tool.

Other Types of Trusts

There are other types of trusts that could be useful for those who are seeking asset protection. When you create an irrevocable trust you are surrendering incidents of ownership. Therefore, certain types of irrevocable trusts are used by people who want to protect assets.

Asset Protection Planning: Explore Your Options

When you have been successful throughout your life you should certainly do everything possible to protect the assets that you have been able to accumulate. On the one hand you should protect them for your own purposes, and on the other you should make sure that assets that you are passing along to your loved ones are protected.

You have various different options available to you. If you would like to discuss asset protection planning with a licensed estate planning attorney, we invite you to contact our firm to request a free consultation.

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Many estate planning attorneys also focus on elder law issues. When you hear the term “elder law” you may wonder exactly where the focus lies.

In a general sense, elder law attorney assist people who are concerned about legal issues that are of interest to senior citizens. Some elder law attorneys focus on legislation that impacts seniors. They may advocate certain positions.

Most elder law attorneys are involved in personal interactions with clients who want to prepare for the eventualities of aging.

The most pressing issue that an elder law attorney in Kew Gardens NY is facing at the present time is the matter of long-term care. The United States Department of Health and Human Services tells us that the majority of senior citizens will need assistance with their activities of daily living eventually.

Fortunately, a lot of this care is provided by family members, friends, and neighbors. In many cases seniors who need help with their day-to-day needs can remain in their homes.

However, this is not always the case. A significant percentage of seniors ultimately reside in assisted-living communities and nursing homes.

These facilities are expensive, and they are totally out of reach for some people. Others could possibly afford it, but it would wipe out the assets that they always intended to leave behind to their loved ones.

Medicaid Planning

Elder law attorneys focus in large part on Medicaid planning. Medicaid actually pays for most of the long-term care expenses that are incurred by elder Americans. This is because of the fact that Medicare will not pay for an extended stay in an assisted living community or a nursing home.

Medicaid rules are complex. Because it is a need-based program, technically you must be in possession of assets that do not exceed $14,550 (2014) if you want to qualify.

The good news is that some of your assets, such as your home up to $814,000 of equity in 2014, don’t count initially. This can be comforting, but Medicaid recovery is a factor. The Medicaid program could seek reimbursement from your estate after you pass away.

If you retained personal ownership of your home at the time of your death, it could potentially be lost to Medicaid recovery.

Elder law attorneys assist clients who are interested in qualifying for Medicaid without losing everything that they own in the process. If you plan ahead effectively well in advance of applying for the program, you may be able to keep a significant store of assets within your family.

Because of the fact that the population is rapidly aging the field of elder law is becoming more and more important. Seniors are looking for answers, and if you are among them you can become fully informed if you discuss everything with a licensed elder law attorney in Kew Gardens NY.

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If you use a last will to arrange for the distribution of your assets after you die, who is actually going to put the plan into action? Is the document going to act on its own?

Clearly, there is a human element to take into consideration. When you are drawing up your last will you must include the nomination of an executor.

This is the person who will be charged with the responsibility of administering the estate. If you did not choose your own executor, the court would be forced to appoint a personal representative to act as the estate administrator.

What Does an Executor of a Will in Kew Gardens New York Do?

Imagine the situation that would exist after you pass away. You were in possession of all different types of property. There is a last will that contains your final wishes regarding the distribution of this property.

This is well and good, but the executor must make these wishes come to fruition in reality. This can be a very challenging task.

First off, the executor must secure the physical assets that comprise the estate. Why must this be done? Imagine Uncle Harry rummaging through the house grabbing this and that, contending that the decedent wanted him to have these items. Then Cousin Jane arrives doing the same thing, and an old college buddy, and so on.

The executor must make sure that all of the property stays secure so that it can be properly distributed in accordance with the wishes of the decedent.

The last will must be admitted to the Surrogate’s Court so that the process of probate can be initiated. This is another responsibility that is probably going to fall to the executor.

During probate the executor is in charge of administering the estate. This can include paying final debts including taxes. The assets that comprise the estate must be prepared for distribution to the heirs. This can involve arranging for appraisals and liquidation.

The executor is the point of contact for anyone who has an interest in the estate. He or she must be prepared to answer questions along the way.

Choosing an Executor of a Will in Kew Gardens New York

When you consider the length and breadth of the estate administration tasks, you can see that the executor has a great deal of responsibility. It is not an honorary or ceremonial role.

When you nominate an executor of a will in Kew Gardens NY you should make sure that the person can handle these business oriented tasks. In addition, the executor must have the time that it will take to administer the estate.

This may sound like an instance in overstating the obvious, but you should also make sure that the person that you would like to nominate to act as executor is actually willing to take on the responsibility.

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When you evaluate the surveys that are done periodically, you find that far too many people procrastinate when it comes to estate planning. One of the reasons for this is a lack of information. Invariably, once you understand the facts you recognize why estate planning is important. With this in mind, let’s look at the process of probate in Kew Gardens NY.

A Last Will

Someone who is procrastinating may justify it, thinking that immediate action could be taken if necessary. If there are any indications that you should take precautions, you draw up a quick last will and you are covered.

This is an assumption. Assumptions can get you into trouble. However, when it comes to estate planning assumptions, you won’t be around to pay the price. If you make mistakes, your family will be left behind to deal with the outcome.

Let’s say that you draw up a last will without considering any alternatives. You pass away. Your family is not going to receive their inheritances until the estate has been probated.

There could be immediate financial need, and this could present a problem. Short of this, the sooner you get your inheritance the better, even if it is not absolutely needed.

Probate in Kew Gardens NY – How Long Does It Take?

The process of probate in Kew Gardens NY can sometimes be quite time-consuming. It is not just a mere formality. The Surrogate’s Court will be charged with the responsibility of determining the validity of the will. If interested parties wanted to contest the will, they could do so.

If the will was hurriedly constructed without professional guidance, there could be problems.

The extent of the assets, and the form that they are in, will impact the time frame. The family dynamic will also be a factor.

Under complicated circumstances probate can take multiple years. Even simple, routine cases will take months.

Informed Decisions

While it is true that probate will not run its course overnight, it is not necessarily a bad thing. Probate provides protections. What if a challenge to the will was valid? What if you signed it while you were woozy from medication? What if you did not really understand what it contained?

This is just one type of scenario.

Over the years the state of New York as made an effort to streamline the process, so it is not something that is all bad.

On the other hand, there is nothing wrong with arranging for the transfer of your assets outside of probate if this is your choice.

The key is to make informed decisions. Consult with a licensed Kew Gardens NY estate planning attorney before making any assumptions. Ultimately, you can construct an estate plan that works for you, whether it involves probate or not.