Buffalo Elder Law & Estate Planning Attorney
Usually when I introduce myself at social events as a Buffalo, New York Estate and Elder Law attorney, people ask me “What is Elder Law?”
I usually explain that Elder Law is a relatively new, specialized field of law that focuses on the legal, financial, medical, social and family issues affecting the fastest growing segment of the our population – Seniors. It also focuses on people with disabilities and their families.
And I also tell them that I belong to the National Academy of Elder Law Attorneys which is a national, non-profit association of attorneys who deal with these issues.
Actually, Elder Law is not that new because the main elements of Elder Law such as Estate Planning, Wills, Trusts, Probate, Health Care Planning, Elder Rights, Medicare and Medicaid Planning, have been handled by attorneys for many years. It’s only recently that these areas have been assigned the term “Elder Law”.
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Our law firm is not new to this area of law because we’ve been helping Buffalo-area residents with their “Elder Law” issues for more than five decades.
However, today’s seniors are much more active and independent and live so much longer than previous generations that they are encountering legal issues that even their parents did not have to deal with.
For years, it’s been a common practice for seniors to have a Will and do some Estate Planning so their assets could be passed on to their spouses and other beneficiaries.
But with the life expectancy in the U.S. at 78 years of age, seniors have so many more issues regarding their future-care that have to be considered with Estate Planning. A few examples of areas that seniors need to plan for now before disaster strikes are:
- Will I outlive my money?
- How do I avoid or minimize income and estate taxes?
- How can I leave the most to my children and grandchildren without losing control of my finances?
- Can I afford a nursing home or assisted living facility?
- How can I qualify for Medicaid?
- Do I need long term care insurance?
- What sort of legal strategies can protect my assets?
- Who will make financial and medical decisions for me if I become disabled?
Obviously many seniors don’t look forward to planning for their future demise. But the alternative, letting the State and Uncle Sam decide for you….is so much more unpleasant.
So take a few minutes and review the areas of “Elder Law” that we can help you with. And when you’re ready to discuss your future, call me at 716 542 5444 or 800 729 4571….or even send me an e-mail using the form below.
- Administering estates and trusts
- Advanced Directives
- Article 81 Guardianships
- Assisted Living
- Contested Accountings
- Contesting a Will
- Court Representation for Executors, Trustees, Creditors or Beneficiaries
- Elder Abuse
- Estate & Trust accountings
- Estate Administration & Settlement
- Estate Litigation – Contested Estates & Trusts
- Estate Tax Issues
- Estate Sales of Real Estate
- Estate Tax Returns and Audits
- Family Partnerships, LLCs and Business Succession Planning
- Government Benefits
- Guardianships for Disabled Children
- Health Care Proxies
- Intestacy (dying without a will)
- Invalidating trusts
- Kinship proceedings (Establishing Heirs)
- Life Estates
- Life Insurance Trusts
- Living Trusts
- Living Wills
- Long Term Care Insurance
- Medicaid Planning
- Nursing Home Care
- Power of Attorney
- Probating wills – simple to complex
- Representation of executors & trustees
- Representation of Out-of-State Beneficiaries
- Retirement Planning
- Reverse Mortgages
- Revocable Living Trusts
- Social Security Disability
- Special Needs Trusts
- Supplemental Needs Trusts
- Spousal inheritance disputes
- Surrogate’s Court Litigation
- VA Aid and Attendance
- Wrongful Death Proceedings
We also will represent Estates in the following manner:
- Legal Guidance for Administrators
- Legal Guidance for Executors
- Legal Guidance for Guardians
- Legal Guidance for Trustees
- Serve as Executor for your Estate
- Serve as Trustee for your Estate
As you can see, Elder Law and Estate Planning is vast and complicated area. If you need an Estate Attorney in Buffalo NY, don’t hesitate to contact me.
Also, Over the years, I’ve authored numerous articles on Estate Planning and Elder Law. They are available just below. Take a look and see if the topics apply to your situation.
ESTATE PLANNING AND ELDER LAW FAQ
- Articles on this subject and others
- Trustee’s Duties Checklist
- What’s New in Estate Planning?
- Executor’s Legal Survival® Guide
- Where There’s a Will, There May NOT Be a Way
- Will Questions Answered
- Will Information Worksheet
- Health Proxy Form
- Estate Planning Checklist
What’s New in Estate Planning?
Estate, financial and medical planning have significantly changed over the past few years. The various options available today are often overwhelming. Not only have the laws changed significantly, but there have also been revolutionary changes in medical technology, family relationships and public awareness. With proper planning, you can preserve your home and retain control of your medical and financial decision-making.
The advances in medical technology over the past two decades have allowed many people to live longer, healthier lives on their own. But these advances have also raised ethical issues as to when does life actually end. Medical technology over the next decade will facilitate treatment for diseases before they occur and sophisticated drug delivery systems which target specific parts of the body.
The “traditional family” is becoming a thing of the past. Divorces, remarriages, unmarried couples and blended families are becoming the norm. Wives are no longer at home to care for elderly relatives. Traditional types of estate planning do not work for nontraditional families. Prenuptial agreements, living trusts, testamentary trusts and property ownership agreements are necessary.
Public awareness of estate planning through seminars, magazines, books, newspaper articles, television, radio and personal acquaintances is greater than ever.
There are many significant recent changes in estate planning that you should be aware of: Medicaid, Supplemental Needs/Pay Back Trusts, Prudent Investor Rule, Living Wills, Health Care Proxies, Do-Not-Resuscitate Orders, Reverse Mortgages, Elective Share, Intestacy, Guardianship, The Limited Liability Company and Powers of Attorney.
- New Medicaid Law (Article)
- Supplemental Needs/Pay Back Trusts – permit a parent to provide for a developmentally disabled or mentally ill child without jeopardizing his or her eligibility for medicaid. An inheritance or a court award will usually render a child ineligible for medicaid. However, these trust assets are not considered a resource and he need not use up his inheritance before re-qualifying. The trust must indicate the creator’s intent to supplement, not supplant or diminish government benefits. Nothing can be paid directly to the beneficiary.
- Prudent Investor Rule – Trustees must formulate an overall investment strategy that takes into account general economic conditions, inflation, the beneficiary’s needs, the duration of the trust and the tax impact. They usually must diversify their investments and can delegate their duties to outside experts.
- Living Wills – are written declarations instructing a patient’s family and doctor about life-prolonging medical procedures when his condition is terminal and there is no chance of medical recovery. Under constitutional and common law, patients have the right to refuse medical treatment.
A living will gives a person the opportunity to express his wishes in advance, since he may not be able to make them known when it becomes necessary to do so.
Life-prolonging procedures include the use of machines for those who cannot breathe on their own, performing operations or prescribing antibiotics that cannot realistically increase the chances for recovery, starting the heart mechanically when it has stopped beating or feeding by tube. It can be directed that the only treatment rendered be the relief of pain.
In a recent court case, a nursing home which ignored a living will and refused to remove a feeding tube until it was ordered to do so by the court, could not collect $14,000 in medical bills which accrued during the court battle.
- Health Care Proxies – recognize a person’s right to appoint a health care agent that he trusts to decide about medical treatment in the event that he becomes unable to decide personally.
Unless specified otherwise, the agent will have the same authority that the patient would have in deciding about treatment. The authority encompasses the right to forego treatment or to consent for needed treatment.
The agent’s authority begins only when a physician determines that the patient has lost the capacity to decide about treatment.
- Do-Not-Resuscitate Orders – are a direction not to revive a patient if his breathing or heartbeat stops, e.g. mouth-to-mouth resuscitation, chest compression, electric shock, open heart massage or injecting a heart with medication. In a recent court case, a patient’s estate was allowed to sue a hospital that saved his life, in spite of a Do-Not-Resuscitate Order, for negligence and battery. The patient suffered a stroke after resuscitation, but lived for two more years. His estate sued for his medical bills and the pain and suffering resulting from the stroke.
- Reverse Mortgages – allow homeowners to tap into the equity of their homes through either a lump sum payment, monthly installment payments or a line of credit. The life of the mortgage can be for a specific term (e.g. 10 years) or for life.
The New York Social Services Law exempts the proceeds of the reverse mortgage from being considered for Medicaid, public assistance, food stamps, SSI, HEAP and VA benefits.
- Elective Share – You can disinherit your children, but you cannot disinherit your spouse, unless he or she signs a prenuptial or antenuptial agreement. The elective share of a spouse has been increased to $50,000 or one-third of the net estate, whichever is greater.
- Intestacy – If you die without a Will, your spouse will receive $50,000 and one-half of the balance. The remainder of the estate will go to your children.
- Guardianship – replaces the conservatorship and committee. A guardian will be given only such authority as is necessary to satisfy the specific personal and financial needs of the individual. The court must determine that the individual is incapacitated and that he cannot understand and appreciate the nature and consequences of his inabilities and, therefore, is likely to suffer harm.
- The Limited Liability Company (LLC) – is a hybrid business entity which combines the best features of partnerships and corporations. LLCs will be commonly used for real estate ventures and family partnerships because of their tax advantages. LLCs can also be used for Medicaid planning and the ownership of life insurance policies.
Family partnerships have been safe harbor for purposes of shifting income and allocating wealth among family members. Transfers can be made to family members without adverse estate, gift and income tax consequences and loss of control.
- Power of Attorney – A revised form is required for immediate powers of attorney and powers of attorney to take effect in the future. Each delegated power must be affirmatively granted by initialing it on the form. The principal may now permit the attorney-in-fact to delegate his powers. The principal may specifically authorize the agent to make gifts. The power of attorney continues to be effective until third parties receive actual knowledge of its revocation.
To qualify as a residence, the property must contain facilities for cooking, sleeping and sanitation. A residence may be a house trailer, mobile home, houseboat, condominium unit, single family house or stock owned by a tenant-stockholder in a cooperative housing corporation.
The deduction is not allowed if the marital or charitable deduction is claimed. If only part of the property was used as a principal residence, the estate may deduct only the value of the property attributable to the principal residence. For example, if a part of the residence was used for income producing purposes, such as rental of a room or use as a home office, the value attributable to that part of the property would not qualify for the deduction.
In light of this significant change in estate tax law, homeowners should review their wills and estate plans with their attorneys.
This has been a brief overview of the significant changes in estate planning. The law is constantly changing and is subject to various interpretations. You should act only on the advice of an attorney who has reviewed your particular situation.
Executor’s Legal Survival® Guide
Where There’s a Will, There May NOT Be a Way
A: A common mistake in estate planning is the failure to realize that a will does not control the disposition of real estate under the following circumstances:
- Right of Election. Regardless of what your father’s will stated, your step-mother has the right to file a “right of election” as surviving spouse. She is entitled to the greater of $50,000.00 or one-third of your father’s estate and any transfers he made within one year prior to death. However, she would have waived her right-of-election only if she had signed a valid prenuptial or antenuptial agreement; she had abandoned your father or failed to support him.
- Life Estate. If your father deeded the house to your step-mother and retained life use, the home automatically went to her upon his death.
- Tenants-by-the-Entirety. If the home was owned by your father and step-mother as tenants-by-the-entirety, it automatically passed to her upon his death. However, if the home was owned as tenants in common, his share of the house would go through the estate in accordance with his will or if he had no will, to his surviving heirs.
- Living Trust. If the real estate was owned in the name of a living trust, it would be disposed of pursuant to the trust agreement.
Contact an attorney to review the facts and advise you of your rights.
Will Questions Answered
A: No. If you and your spouse bought your home together, she automatically gets ownership of it upon your death. But what if you both died together: The home that you worked so hard for might be sold and the proceeds controlled by a stranger until your children reach the age of 18, at which time they could spend it as they wish. A person’s major asset is usually his home. With inflation rapidly driving up home values and mortgage insurance covering the mortgage, many homeowners have a much larger estate than they may think.
Q: What happens if I die without a will?
A: Dying without a will may result in your estate going to someone you didn’t intend to receive it, unnecessary estate taxes, delays in settling the estate, added estate expenses and leaving your estate assets without proper management and protection. If you die without a will, New York State law makes the decision as to the distribution of your property. If you die leaving a spouse and one child, your spouse receives $50,000.00 in money or personal property and one-half of the estate and your child receives the remaining one-half. If your spouse and two or more children survive, your spouse receives $50,000.00 and one-third of the estate.
Q: What does a will do?
A: A properly drawn will is the only way to be sure that your property at your death goes where you want it to go. By executing a will you may dispose of real and personal property at your death in the proportions and to the persons you wish; appoint competent and trustworthy executors, trustees and children’s guardians; and create trusts. If you will be leaving large sums of money to your minor children, the will should provide for a trust with a trustee, such as a bank, which can provide proper money management until your child reaches the age of 18 or older. Making a will is a privilege and if it is not executed in strict compliance with state law, it may be declared to be invalid and your property will pass as if you had no will.
Q: Can I disinherit my children?
A: Yes, you can disinherit your children but you cannot disinherit your spouse. Your spouse has a right to the greater of $50,000.00 or one-third of your estate.
Q: When should I update my will?
A: You should review your will with your attorney every few years or when there is: a birth or adoption; a change of residence; the executor, guardian or trustee named in your will becomes unavailable; you or your beneficiaries’ financial worth increases dramatically; a change in your marital status or that of a family member; a change in the status of your business, a change in the tax laws; or the death or the disability of anyone named in the will.
Will Information Worksheet
Health Proxy Form
Estate Planning Checklist
Click here for the Estate Planning Checklist.