3 Estate Planning Steps for New Parents

May 14, 2017

Family Estate PlanningFew joys in life match that of being a new parent. The moment your child is born, a tectonic shift takes place which makes even the most easygoing person lose sleep over their child’s future. The sense of optimism and hope parents feel when holding a newborn is counterbalanced with the heavy weight of responsibility. As an estate planning attorney and a relatively new parent, I wanted to share my thoughts on three estate planning steps parents should consider to prudently care for the miraculous little souls entrusted to us by G-d.

Step 1: Make sure your beneficiary designations are current

Do you have a checking account? What about a savings account? A retirement account such as an IRA, TSP, 403(b), or 401k from work? Life insurance? A brokerage account perhaps? Most of us have at least one of the aforementioned accounts and possibly other types of financial accounts which allow us to list a beneficiary to inherit the account when we pass away. As we discussed in a previous article, listing beneficiaries is one way to quickly and easily avoid probate and get money to your loved ones as efficiently as possible. For most new parents, it makes sense to list their spouse as their primary beneficiary so that the surviving parent can inherit and manage the money. In situations where a parent passes away with minor children without leaving a beneficiary, the surviving parent has to go through the probate process (if there is a will) or estate administration (if there is no will) just to get access to the funds. Both processes take time and money. Even worse, if there is no will (called dying intestate), the minor children become entitled to approximately 50% of the funds in the account and the surviving parent has to be appointed their guardian of the property just to be able to access the money and hold it for them until they turn 18. Unfortunately, many people have outdated or missing beneficiary designations, making this an important first financial step as a new parent.

Step 2: Make a Last Will/Appoint guardians for your minor children

This one is tough. One of my biggest fears is not being alive one day to watch my daughter grow up, so it isn’t easy for me to personally grapple with who should be in charge of her if my wife and I aren’t around. Nevertheless, without putting their wishes in writing, parents aren’t doing their child (or the judge who appoints their guardian) any favors. In order to act in the child’s best interest, courts want to know who the parents prefer to care for the child (both personally and financially). Without having guidance from the parents, courts are missing vital information to help them make a decision, hence why it is imperative that each parent with minor children appoint a guardian for their care in the event that both parents pass away.

I put making a will and appointing guardians for minor children in the same category since a last will and testament is where most people appoint guardians for their children. However, another important reason for having a will is to distribute assets in your name which did not allow for beneficiary designations, or were missing them, to the surviving parent, similar to what was discussed in Step 1 above.

Step 3: Buy life insurance

Even though I don’t sell life insurance and am in no way an expert, I strongly urge all young parents to purchase life insurance. The reason is simple: kids are expensive and your surviving spouse may not have the ability to afford tuition, a mortgage, health insurance, food, and the myriad other expenses if your income was lost. Of course there is always charity, but the last place I want to see young parents is on a GoFundMe page to help pay their bills. That is what life insurance is for. Every working spouse owes it to their partner to protect them from poverty if they suddenly pass away. Every parent owes it to their children to make sure that their basic needs are met without shame or embarrassment.

With great joy comes great responsibility, and I believe these three steps are foundational on the journey of a lifetime.

 

Roman Aminov, Esq. is a estate planning and probate lawyer. Call 347-766-2685 for a free phone consultation.

Removing 805 Bond Restrictions in Brooklyn Surrogate’s Court

June 17, 2016

As an Estate Lawyer, I often get phone calls from clients who have successfully obtained letters of administration for the estate of a loved one, but can’t sell the real property or even transfer it to themselves. The reason is that when a decedent dies owning real estate, the Kings County Surrogate’s Court in Brooklyn often places 805 or 805(3) limitations which may read as follows: “THE SAID ADMINISTRATOR IS HEREBY RESTRAINED FROM SELLING, TRANSFERRING, MORTGAGING
OR IN ANY MANNER ENCUMBERING THE REAL PROPERTY FOR THE DECEASED EXCEPT UPON FURTHER ORDER FROM THIS COURT AND FILING OF A BOND PURSUANT TO SCPA 805(3)”. The reason for this limitation is that Surrogate’s Courts have the authority to require the administrator to post a bond in order to protect the heirs of the estate if the administrator mishandles the real estate. Often, the heirs need to re-title the property to their own names for insurance or tax purposes or need sell it to a third party. Before the property can be transferred or sold, however, either a bond needs to be purchased or the limitations need to be removed. Purchasing a bond can be costly, and not all administrators can qualify for a bond, which requires the administrator to have good credit and a solid financial situation.

Our office regularly helps clients remove these limitations without the filing of a bond if all of the distributees agree to do so. We help clients regardless of whether we obtained letters of administration, another law firm did so, or the client themselves obtained them. It is important to remember that the court has final discretion as to whether to waive the requirement to post a bond or not. We first get a list of the assets of the estate and use that to prepare a form ET-30 or ET-85 and file it with New York State, which should then issue an ET-117 Release of Lien of Estate Tax. We attach the ET-117 to a petition which we prepare asking for the removal of the bond requirement. We also obtain waivers and consents to lift restrictions from all distributees. Upon filing the required petition and ancillary documents, we await the court’s decision. When time is of the essence, such as when there is an imminent closing date and a delay would cause irreparable harm to the estate, we submit the petition with an affidavit of urgency in the hopes that the court would expedite the issuance of letters of administration without the SCPA 805 limitations.

If you have been appointed administrator of an estate in New York City and have questions about removing the 805 restrictions on the letters of administration, our office can help.
Call today for a free phone consultation: Law Offices of Roman Aminov 147-17 Union Turnpike Flushing, NY 11367 (347) 766-2685

Medicaid Planning for Parents in New York

May 2, 2016

Medicaid Planning for ParentsAs parents get older, children begin to take on the role of caretaker and assist their parents in making various medical and financial decisions. In fact, I receive more phone calls from children of seniors looking for Medicaid planning for their parents than from the parents themselves. They are looking to understand what they can do to help their parents get Medicaid long term care benefits without jeopardizing everything their parents have worked to earn. This article will highlight a few important points children of seniors should be aware of as they go about helping their parents qualify for Medicaid.

Plan for the Unplanned: Power of Attorney
I always recommend that all clients, but especially seniors considering Medicaid planning, have a valid, updated power of attorney. Too often, a parent who needs Medicaid long term care is unable to quickly and easily transfer their assets to an irrevocable Medicaid Trust or sign up for a pooled trust in order to qualify. In some cases, the parent begins the process and loses the necessary mental capacity to complete it. A valid power of attorney prepared by an elder care attorney can give children the tools they need to help their parent pay their bills, deal with their finances, and get them the care they need while protecting their assets, even if a parent loses the mental or physical ability to do it themselves.

Eligibility: Knowledge is Key
When I ask potential clients if they have considered Medicaid as part of their long term care strategy, I often hear the concern that they have too much income or too many resources to qualify. Instead, they opt to private pay until they can’t afford to do so anymore. Many are surprised to learn that they can qualify for home care Medicaid without a look-back period and can preserve their assets for their children. Therefore, I encourage children of seniors to learn about New York’s Medicaid rules in order to be able to have informed conversations with their parents about their long term care options.

Post-Eligibility Planning
Qualifying for Medicaid is not enough. Families must also plan ahead in order to avoid Medicaid recoveries and liens. Eligibility and protection are two distinct issues that need to be dealt with as part of Medicaid planning. I often encounter children who assume that just because their parent is receiving Medicaid, that Medicaid can’t touch their assets. In fact, the opposite is true. Precisely because the parent is on Medicaid, their assets can be collected upon, sometimes during life and other times after they pass away. Proper Medicaid planning includes both the eligibility portion which puts the care in place and the post-eligibility portion which protects assets to the maximum degree allowed by law.

An effective long term care Medicaid strategy for parents consists of carefully analyzing each family’s unique situation with an eye towards planning for incapacity, evaluation eligibility, and protection of assets. With these three foundational principles, families can be well on their way to getting the care they need while protecting the assets they worked so hard for.

Roman Aminov, Esq. is an estate planning and elder law attorney. Contact us today for a free consultation at: Law Offices Of Roman Aminov 147-17 Union Turnpike, Flushing, NY 11367 (347) 766-2685

Ethical Wills: A Legacy With Love

January 18, 2016

Ethical WillsMy dream to build an estate planning practice was born early in my law school career. My first trusts and estates class introduced me to a legal world where the most important and sensitive parts of our lives, our mortality, were front and center. I was excited about the prospect of working with families and individuals to help them reflect on their achievements and plan for their futures. In the real world, I found estate work to be more focused on the practical and procedural and less on the personal. For example, my practice revolves around three main areas; (1) planning the distribution of assets, (2) protecting those assets from costly long term care bills, and (3) obtaining access to and administering assets after death. All three are extremely rewarding experiences, and the ability to help families navigate the legal minefields is a privilege. However, in the background, the issue of our mortality and purpose in life still remains untouched by conventional estate planning tools. An implicit question is constantly being posed to both the benefactor and the beneficiaries: “To What End?” What is the intended purpose of the money that the decedent has left behind? How should it be spent? What values should guide the beneficiaries in spending their inheritance? This article is a step towards offering one answer to that question.

To be sure, most of the concerns I encounter are practical. Money is needed to pay off debts, mortgages, student loans, or to secure necessities. I make sure to address those issues, as they are of paramount importance. But beyond that, how should the heirs treat the money that is left over after bills and other necessities are covered? Akin to Maslow’s theory of hierarchy of needs, there are more refined concerns. Surely, it is of no less importance to pass along our values and morals as it is our money. So how does an estate planning attorney factor in helping clients convey values to their children along with their IRA, life insurance, and real estate to them? Part of the answer may be in helping clients craft an Ethical Will.

Ethical Wills can be found as early as the times of the Bible and have been used by the Jewish community for millennia. They have recently become more commonplace, with President Obama having penned such a letter to his daughters in 2009. Their role is to leave behind the stories, history, struggles, values, and lessons of the writer to future generations. Such a document can be used to summarize the ideals and maxims which comprise a life well lived and serve as a treasured road-map to heirs. An Ethical Will, also known as a Legacy Letter, need not follow any particular structure or form and is not a legal document per se. It therefore allows for greater freedom of expression than a Last Will and Testament. The Ethical Will can be used to offer guidance as to what the inheritance should be used for, thereby giving the author greater satisfaction when making their bequests. Clients are often eager to have the opportunity to express their heartfelt memories of what life has given them and what they have attempted to give back.

It is of no surprise that the greatest beneficiaries of Ethical Wills are the loved ones of the decedent. They are afforded the brief opportunity to imagine their own future and look back on their own lives in hindsight. What will they value when thinking about their life? What will have been their impact on the world, and what should they prioritize today to live a life without regret. What will be their own legacy, their raison d’etre? Such a bequest is not only timeless and priceless, it is also unique in that it can only be given by one person in the world: You.

Law Offices Of Roman Aminov 147-17 Union Turnpike, Flushing, NY 11367 (347) 766-2685 Aminovlaw.com

Where Should I Keep My Will

December 17, 2015

So you’ve done the responsible thing. You’ve prepared a last will to protect your family when you die. Great – now where do you keep it? For starters, somewhere your loved ones can find it. But which place is most safe yet accessible, convenient yet confidential? This article will discuss a few options clients have in safeguarding their wills until the time comes to probate them.

The lawyer’s office
I offer my clients the ability to leave their will in a fireproof/waterproof safe in my office as a courtesy for a few reasons. First, its free. Second, your family will know where to find it when you pass away. Third, its better than taking the will home, “misplacing” it, passing away and having the court assume that you revoked your will. New York law presumes that if the original will was in the possession of the decedent and can’t be found, that it was revoked. I have seen copies of wills not accepted to probate because the original will was held by the decedent and unable to be located after their death. If the original was with the attorney and can’t be located, a copy may be acceptable. Other than the client, the only other party who can retrieve the will is the named executor after death. Before we give them the will, the named executor would have to show us a death certificate along with their ID.

The Surrogate’s Court
Another good option is filing the last will for safekeeping in the Surrogate’s Court of the county in which you reside, normally for a fee of $45. This way, even if no one can locate your original will and attempts to claim that you died without a will, the court will have the original on file and available to probate. I recommend this option to people who don’t completely trust their executor to locate their will after death because the executor would get more under intestacy (when there is no will). By depositing the will for safekeeping with the court, the executor can’t destroy or avoid looking for the will since any administration petition will require a search to see if the will is on file with the court. The major drawbacks of this approach are the filing fee as well as the need to re-file the will every time you change it.

A safe in the client’s home
A waterproof/fireproof safe in the home is a common place people keep important documents, including wills. Though not my favorite option, if the client insists, I advise them to make sure that the executor has the keys or code to the safe, as well as to the home in which it is located. If the client decides to take the will home, I warn them that any person who has an interest in not  probating the will may destroy it or that it may get lost. I have spoken to countless clients who swear that their parents had a will, but are unable to locate it after their deaths.

You may have noticed that I didn’t suggest keeping the will in a safe deposit box at the bank. The reason is that, as we discussed in a prior article, your executor will need a court order to access the box, which adds unnecessary time, cost, and complexity. No matter where you keep your will, you should let your loved ones know how they can find it when you pass away. Being responsible doesn’t just mean preparing an estate plan, it also means making sure it can be executed efficiently.

Roman Aminov, Esq. is an estate planning and elder law attorney: Contact Roman at: Law Offices of Roman Aminov 147-17 Union Turnpike Flushing, NY 11367 (347) 766-2685

Seven Questions to Ask an Estate and Probate Attorney

October 27, 2015

Nobody wants to call a probate lawyer. People only call us when they are dealing with the loss of a family member and need help through the process. Over the surrogates courtyears, I have been privileged to speak with hundreds of clients and helped address their questions about the probate process in general and my services in particular. From the thousands of questions I received, I believe that seven are essential to ask an attorney before hiring them to represent you:

1. What other areas of law do you practice?
Some attorneys know immigration very well, others are proficient with criminal law, yet others primarily focus on real estate closings. When hiring a probate attorney, ask them (or look at their website) about other areas of law they practice. My experience confirms that attorneys who don’t focus on probate/estates are less likely to properly represent their clients in estate matters. Unfortunately, I have seen the results of attorneys with little experience in estate law try to take on cases which end up on my desk after unreasonable delays.

2. Do you regularly practice before the court to which my case will be assigned?
Every county has its unique way of doing things. Every judge has their own rules. It makes the process smoother and quicker if the attorney has experience in a particular Surrogate’s Court when taking on a case.

3. Have you had similar cases in the past and what was your experience?
This is probably the most important question. This question allows you to understand whether you are speaking with an attorney experienced in estates. It also allows you to hear the attorney’s experience in similar matters. While each case is different and past performance is no guarantee of future results, it is very helpful to have an overview of a similar case so you are more prepared for what may come.

4. What is the approximate time frame for completion?
This is the most frequently asked question I hear with regards to the probate process. I think the reason is that there is much confusion and misunderstanding surrounding the probate process and some clients fear that it will take years (it rarely does). Knowing an approximate time frame is important to know how to plan (and budget) your resources, so feel free to ask your attorney, while keeping in mind that wrinkles and associated delays can sometimes come up in estate work.

5. What potential issues may arise in my case, if any?
An experienced attorney should be able to tell you which nuances of your case may cause delays and how to plan for them. Knowing this information in advance can help you obtain any necessary paperwork in advance, saving time.

6. How easily can I reach an attorney or paralegal if I need to speak with someone?
Clients need to be able to reach the attorney or his or her staff to discuss important developments or to get a status update. Not all law offices are created equally in this regard. Will you speak with an answering machine or a with paralegal who knows your case when you call? Is the office easily reached by email? How quick is their response time? Will you be kept up to date with status updates? Communication is vital to good representation – make sure to ask how the attorney and his staff will treat your calls if you hire their office.

7.What are the estimated legal fees and are there any other fees?
Legal fees can be confusing. Will the attorney be charging a flat fee, hourly fee, or contingency fee? If hourly, how many hours have similar cases taken? If flat fee, what if the matter is more complicated than anticipated? How much will court fees be in my case? Speak to the attorney to find out how they charge and approximately how much you should expect to pay.

Dealing with the loss of a loved one is a painful process with much uncertainty. Before hiring an attorney to navigate you through the process, make sure you are in control of the process by starting with these seven questions.

 

Law Offices Of Roman Aminov 147-17 Union Turnpike, Flushing, NY 11367 (347) 766-2685 Aminovlaw.com