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PROCESS OF ADULT GUARDIANSHIP APPOINTMENT IN NEW YORK

Davidov Law Group

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If you have an incapacitated adult relative who is unable to provide for his or her own needs, you might be able to have a court appoint you as a guardian in New York. This is often necessary if an elder relative does not have an effective General Durable Power of Attorney. You will need to go to court to be appointed as a guardian of an adult relative, so consider the services of a New York attorney to assist you.

The process of getting guardianship over an adult relative begins by filing a petition with the court requesting that a guardian be appointed. The court then appoints someone to be act as an evaluator. The evaluator investigates the situation to make an independent report to the court whether a guardianship is necessary and whether the person requesting guardianship is an appropriate person to have it.

When the evaluator has compiled his or her report, the court will hold a hearing. At the hearing, the person requesting guardianship must prove by clear and convincing evidence that the guardianship is necessary and that he is an appropriate guardian. The evaluator will present his or her report to the court and other interested parties will have a chance to testify. After hearing the evidence, the court will reach a final decision granting or denying the guardianship request.

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Many people fear that a spouse from a second marriage will not leave assets to the children of a previous marriage. If you leave all of your assets to your spouse in a simple will, this is a real concern. The second spouse is under no obligation to leave assets to your children from a previous marriage in his or her own will. Even if you and your spouse create joint wills that leave assets to all of your children, nothing prevents your spouse from changing his or her mind after you pass away.

With proper estate planning, however, you can avoid this problem and leave assets to your children from a previous marriage. In New York, an attorney can assess your situation and find the best option for you. For example, if your spouse lives in a home that you individually own and would eventually like to see pass to the children of your first marriage, you might want to give your spouse a life estate in the property and have it automatically pass to your children when your spouse passes away. In other situations, setting up a trust or leaving your children assets in your will might be better options. A qualified estate planning attorney can determine the best options for your family situation.

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Sometimes, you might be expecting to receive an inheritance and you know what to do with it before it comes. However, if you receive an unexpected inheritance, you might not know what all of your options are and what to do with the inheritance. An estate planning attorney can assist you in making sure that you do everything you need to do with the inheritance.

In some cases, you might not want the inheritance. For example, if you have to pay taxes on inherited real estate, owning the property might not be a good option in some financial circumstances. In this case, you can disclaim the inheritance. However, you have a limited time to do so and you must make your disclaimer properly. An attorney can help you disclaim an inheritance properly.

In other cases, you might need to pay taxes on an inheritance. Experienced estate planning attorneys are used to explaining what taxes need to be paid and when. The attorney can make sure that you do not get in trouble with the taxing authorities.

An estate planning attorney can help you with an unexpected inheritance in other ways. In most cases, your conversation with the attorney will be relatively short. The important thing is to have the conversation and make sure that you do everything right.

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In most situations, you can disinherit your heirs by simply leaving them out of your will. However, you generally cannot disinherit your spouse by will. According to most state’s probate laws, although you can disinherit any of your other relatives by written will, you cannot disinherit your spouse. Absent a valid prenuptial agreement created before you and your spouse married, you cannot use your will to disinherit your spouse.

Known as elective or forced shares statutes, surviving spouses have legal rights to minimum bequests. For example, your state most likely has a probate law allowing your surviving spouse to “elect” a minimum statutory share of her deceased spouse’s estate, instead of taking her testamentary bequest. This means that if you decided to leave your spouse a share of property below your state’s minimum elective statutory share, your spouse can reject the share under your will in favor of the minimum statutory share. In other words, your spouse most likely has a legal right to claim a third or other fraction of your estate.

Can you disinherit your other relatives, even though you may not be able to disinherit your spouse? Generally, you can in most states. This means that you can specifically omit your children as your legal heirs by stating such or not mentioning them. However, your state’s law may limit the disinheritance to existing children and not to children born after you created your will. Its important to consult with a qualified estate planning attorney to make sure that your intentions are properly carried out.

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In most situations, a stepchild will not inherit property from a step-parent after the step-parent dies. The step-child does stand to inherit from his or her biological parents, but all inheritances are dependent on the laws of the state in which you live. Talk to a your estate planning attorney for more detailed information.

  • Intestacy: When you die without will, your stepchildren are very unlikely to inherit anything at all. In some states, step-children have no intestacy rights, while in others, a step-child is the last person who stands to inherit from a step-parent before the state does. This essentially means that if there is no spouse or biological relatives of the step-parent that survives him or her, the step-child inherits. If there is no step-child, or offspring of that child, the property goes to the state.
  • Wills and Trusts: If you create a Will you can choose to leave as much property to your stepchildren as you like. Similarly, if you create a trust you can choose to name your stepchildren as beneficiaries so they can receive the benefit of the property you transfer to that trust. A person creating a Will can also choose not to leave anything to his or her children, including step-children.
  • Adoption: While a step-child’s rights to inherit from a step-parent are much more limited than the parent’s children, a step-child that a step-parent adopts has the same right to inherit as any other child. State inheritance laws do not differentiate between children and adopted children, even if the adopted children are former step children.

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State Requirements: Each state has its own set of rules about how a living will must be written. They also have different rules about how they are used and who can create them. While some living wills made in one state will be enforceable in another, this isn’t always true. It’s important that if you move, you talk to a lawyer in your area and create a new living will that complies with the laws of your new state.

State Restrictions: Even though the vast majority of states allow for living wills, there are a small number that do not recognize them at all. If you move to one of these states you’ll have to enact other advance directives that will enable you to ensure your health care decisions are honored. States may also place different limits on when you can use a living will that other states may not have.

Other Directives: A living will is not a substitute for other types of health care directives, so even if you move and create a living will, you may also have to create a health care proxy. Living wills are great for putting your choices in writing, but in your health care proxy you designate an agent who will stand in for you and make the decisions you cannot, communicate directly with your doctors, ask questions, review your medical records and take other actions that your living will cannot.

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Few phrases that include the word “fatal” ever promise a positive outcome, and “fatal errors in execution” is no different. When you’re developing an estate plan, a fatal error in execution can throw significant problems in your estate’s way when it comes time to distributing estate property. Let’s take a look at the term in more detail.

  • Execution: The execution of a Will is the formal signing of the document. This signing must comply with state laws and includes various elements in order to be successful. For example, all states require that both the testator and two competent witnesses sign the document. But does the testator sign first? What if the witnesses sign first? Do the witnesses have to sign in each other’s presence or in the presence of the testator? All of these questions can impact the validity of the execution and, if not properly accounted for, can lead to a fatal execution error.
  • Fatal Error: A fatal execution error is an error during the execution process that invalidates the will. This means that even if you’ve created a Will and stated in detail all of your preferences, if a court later finds a fatal execution error it will determine the Will is invalid. It will then disregard your Will and your choices will have no impact on how your estate is distributed.

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As discussed in the last two blogs, the New York Estates, Powers and Trusts Law sets forth the statutory procedures for personal representatives and executors when suing other parties for wrongfully causing a decedent’s death. If your estate’s personal representative files a wrongful death lawsuit on your behalf, the EPTL sets forth specific defenses that a defendant charged with wrongfully causing your death may use.

Pursuant to the EPTL, a defendant can use a contributory negligence defense as a legal defense to a wrongful death lawsuit alleging negligence. Contributory negligence is a legal claim asserting you were also negligent in causing your own death. However, contributory negligence is an absolute defense only for suits that arose before Sept. 1, 1975. For cases arising on or after Sept. 1, 1975, contributory negligence is no longer an absolute defense.

If your personal representative refuses to bring a wrongful death action on a decedent’s behalf, the EPTL allows the beneficiaries or distributes of a decedent’s estate to request an appointment of a substitute administrator or personal representative who will maintain the action. To further understand your legal rights to sue for wrongful death on an estate’s behalf, contact us today.

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As discussed in the previous blog entry, the New York Estates, Powers and Trust Law (EPTL) establishes the statutory procedures that personal representatives, administrators and executors must follow when filing wrongful death lawsuits.

The EPTL provides mandatory statutes of limitations or time limits in which a personal representative can sue someone on a decedent’s behalf for wrongfully causing his death. Section 5-4.1 of the EPTL sets the statute of limitations at two years. Your personal representative or executor of your estate must file a wrongful death lawsuit within two years of death. However, the EPTL contains an exception to the two-year statute of limitations for the Sept. 11, 2001, terrorist stacks. In this case, a lawsuit alleging a wrongful death caused by the Sept. 11, 2001, terrorist attacks are subject to limitations period of two years and six months from the date of the decedent’s death.

If the decedent’s death was caused by a criminal action and not just a wrongful or negligent act or failure to act, the EPTL allows the personal representative or executor of the decedent’s estate to maintain a wrongful death lawsuit within one-year from the date the criminal action terminates or ends. Thus, if the state maintains a criminal action against an individual or company for your death, your personal representative, administrator or executor has another year from the date the criminal action terminates to commence a wrongful death proceeding.

Check out our blog tomorrow to read Part 3 of How Can an Estate Maintain a Wrongful Death Lawsuit on a Decedent’s Behalf?