The Elliot Schlissel New York Law Blog

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When we were born, our parents cared for us.  Are we up to the task of taking care of our parents when  they grow old? This is especially difficult when you don’t live near your parents.

Siblings Nearby

Some people are lucky, in that a brother or sister lives near their parents.  While the sibling becomes the primary caretaker, it is still important that you contribute to the taking care of elderly parents.  You should contact the sibling that lives nearby and find out what you can do to help him or her.  You may be able to deal with medical issues involving your parents’ principal medical providers.  You also may be able to visit periodically and relieve your siblings.

Making Your Parents’ Home Safe

When you visit your parents, you should take a good look at their home.  If your parents are unsteady on their feet or use a walker, you may want to go room by room and see what modifications to your parents’ home are necessary.  For example, do the bathrooms have safety bars? Are there places in your parents’ home where they may slip and fall?

You should also look into the accessibility of various parts of your parents’ home.  Are there problems with doors, cabinets or wall switches?

Are arrangements for Your Parents Acceptable?

Can your parents take care of themselves? Do they need help during the day? Do they need help with their bathroom and toilet needs? Do your parents need help going to the doctor’s office? Think about these issues and if your parents need help.  Devise a plan to deal with each of these problems.

Can Your Parents Take Care of Themselves?

Can your parents deal with their own medical needs? Are they taking the right medications? Do they need help filling their medication prescriptions? Can they read the right dosage necessary on their prescriptions? Is their home clean? Do they need cleaning help or a health care aid?

Are they paying their bills? You should check to see that their credit card, electric, oil, mortgage or other bills are paid.  You don’t want to end up having your parents in a situation where they are sitting in the dark because they forgot to pay their electric bill.

Can your parents deal with their food needs? Can they go to the grocery store and shop for themselves? Can they still cook? If they cannot meet these needs, you should look into hiring someone to assist them with the purchase of groceries and the preparation of meals.

At what point and time should your parents stop driving? Is their eyesight adequate to see what’s happening on the road? Are their hands shaking to the point that they can’t handle the steering wheel? Are they a menace to themselves and other drivers on the road?

Your parents’ mental state is also important.  Do they have friends? Do they have social interaction with their peers? Is there a support system where your parents live? Growing old in America is difficult. It is your duty as a child, niece, nephew or friend of a loved one to help them.

Elder Law Attorneys

The Law Office of Elliot S. Schlissel have been handling Elder Law matters for their clients for more than thirty-three years. The firm represents its clients with regard to issues involving nursing homes.  We help clients do estate planning and Medicaid planning, so in the event they need to go into a nursing home, their home won’t be taken to pay the nursing home bill.  We prepare special needs trusts for children and irrevocable trusts to protect homes.  We draft wills and trusts for clients. In the event clients die, we help probate the wills and trusts.  Feel free to call the Elder Care Attorneys at The Law Office of Elliot S. Schlissel for a consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Many seniors no longer have sufficient assets to maintain their lifestyles.  There is a tendency in these situations to go into debt.  Seniors use credit cards to finance routine purchases with the hope that they will be able to pay their credit cards back at some point in the future.

The credit card debt that seniors are maintaining has been growing.  Seniors also require more medical treatment than younger Americans.  In situations where the medical treatment is not covered by insurance, seniors find themselves in debt.

The primary reason for seniors filing bankruptcy has to do with their inability to pay credit card debt.  The medium credit card debt for seniors filing bankruptcy is over $27,000.  Medical expenses are the second largest cause for seniors to file bankruptcy.

In addition to problems involving credit card debt and medical expenses, more and more seniors in their late-fifties and sixties are still carrying mortgages on their principle place of residence.  Today, 63% of all Americans in their late-fifties and sixties are still making mortgage payments.  This is up significantly from the 49% of individuals in this category that were carrying mortgages in 1989.  These figures were obtained from the Joint Center for Housing Studies at Harvard University.

About Our Law Firm

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys and has been assisting New York seniors in dealing with all types of legal problems for over 20 years.  Our phones are answered 24 hours-per-day, 7 days-per-week.  Our phone numbers are 1-800-344-6431, 516-561-6645 or 718-350-2802.  You may also contact us by email.

Ms. Huguettem Clark owns a 52-acre estate in New Canaan, Connecticut.  The estate has been unoccupied for more than twenty years.  During this entire period, Ms. Clark has been residing in a hospital.  She has been active in the society pages of various newspapers and has made many charitable contributions.

Ms. Clark in now 104 years of age.  Investigators have undertaken an investigation with regard to the handling of her multi-million dollar homes and her other assets over the past two decades.

Ms. Clark is the daughter of a United States Senator who built a huge fortune related to his owning copper mines.  The Manhattan District Attorney is looking into the circumstances involving Ms. Clark’s assets.  It is estimated that Ms. Clark’s fortune is worth $500 million dollars.

Guardianship proceedings were undertaken on behalf of Ms. Clark.  At the present time, these proceedings have not been successful.

It is unknown whether Ms. Clark has a will and, if so, who would be the beneficiary.  It is also unknown whether she has created a trust for the family to shield her assets from the huge tax implications they would have at the time of her death.  In the event that Ms. Clark has a will, it is anticipated that the will is likely to be contested and there will be probate proceedings involving her estate.

Should you have problems regarding guardianship, probate, contested wills and estates, elder care or medicaid, contact the law office of Elliot Schlissel at1-800-344-6431, or by email.

If you die without a will, your assets are distributed to your loved ones under the laws of intestancy.  The intestancy laws determine who will receive your property.  A judge may make a decision as to who will raise your children.  How can you control the future for your children and your assets? Simply stated, write a will.  A will allows you to deal with your legal affairs in the event of your death.  Is a simple will enough? Yes, if you do not have significant assets then a simple will is all that you need.

In the basic family structure a simple will involves a husband leaving his assets to his wife.  If his wife should predecease him, he most often would leave his assets to his children.  If his children should predecease him, he would typically leave his assets to his grandchildren.

If you write a will, it must be probated.  Probate proceedings involve proving the validity of the will.  In New York, probate is not a complicated or long process.

Writing A Will:

If you decide to have a simple will, it is necessary to go to the office of an attorney to have the document prepared.  Attorneys usually charge a modest fee to prepare a will.  Do not try to write your own will using a software program, a will drafting book, etc.  In our experience, these wills often do not meet basic statutory requirements and are rejected when they are submitted to a court for probate.  Do yourself a favor and hire a lawyer to write your will.

Should you have any questions about will drafting, contact the lawyers at the law office of Elliot Schlissel for a consultation, by email or at 1-800-344-6431.

Wills do not have to be fair. An individual has the absolute right to dispose of his or her property at the time of his or her death the way he or she sees fit. This means a mother or father can disinherit his or her children. Husbands can disinherit their wives and vice versa.

However, it should be noted in the State of New York a spouse has a right of election against the estate of his or her spouse. This right of election allows the disinherited spouse to obtain one third of the estate of the predeceased spouse. There are very specific rules concerning the exercising the of right of election. An attorney should be consulted when a spouse feels he or she is receiving less than their fair share of an estate.

In will contests judges usually find wills to be valid unless the challenger successfully proves to the court the will was not properly executed or there was fraud, duress, undue influence or that the individual lacked mental capacity to write a will.

What Happens When a Will is Invalidated?

If the entire will is held to be invalid and there is a prior will, the prior will controls the inheritance scheme. The prior will would then need to be probated. In the event there is no prior will and the will is held to be invalid all assets would pass under the statutory frame work of intestacy (dying without a will).

Should you have questions regarding a will contact the wills attorneys at the law office of Elliot Schlissel by email or at 1-800-344-6431.

Pursuant to EPTL § 3-2.1, a Will can only be probated if it conforms to the following requirements, among others:

• Will must be signed at the end and initialed on every page in front of the witnesses.
• The Will must be signed in the presence of at least 2 witnesses (Some states require 3)
• The witnesses must also sign an attestation clause.
• The “Testator” must “Publish” the Will by saying something like “This is my Will.”

A Probate judge in the Surrogate’s Court may invalidate a will based on several types of objections. If there is proof of undue influence, lack of testamentary capacity, duress, or undue influence, the Will will be invalid.

“Lack of testamentary capacity” means that the Will signer does not understand that what he’s signing is a Will, that he does not understand the nature and value of his property,  does not understand who the natural objects of his bounty are (meaning that normally one’s spouse and children are the natural recipients of his or her property after death), or that he does not understand the nature of the disposition he is making (i.e., to whom he is giving his property in his Will).

A decision came out on Monday which is a great example of someone who successfully used the “lack of testamentary capacity” objection to the probate of a Will. In that case, several siblings of a deceased man successfully blocked the probate of their brother’s Will because he lacked “testamentary capacity.”

As he lay dying in the hospital of liver disease, the man’s x-wife and her lawyer got the him to sign a Will that gave her all of his assets. He died of the disease just three days later. In Matter of Stachiew, 96211/2007/D, a Dutchess County Surrogate’s Court judge denied probate in this case,  holding that the proponent of the Will, the x-wife, had failed to prove that the decedent was sufficiently aware of the nature and extent of his property, what he was signing, and how he was changing his testamentary distribution plan through the Will. The judge found that the attorney had induced the decedent to sign the Will without regard for his ability to understand what was going on, and was not convinced by the attorney’s “self-serving” testimony to the contrary.

Cases like this illustrate how important it is that individuals hire a competent and ethical attorney who will take all reasonable measures to ensure that every requirement of New York’s Estates, Powers, and Trusts law is complied with.

Our office can assist you if you need help with:

• the drafting and execution of Wills or Trusts,
• Probating a Will or Administering an estate (where the decedent died without a will), whether or not a challenge is expected, or
• challenging the probate of a Will or Administration where there was some irregularity.

Please call our office at 800-344-6431 or e-mail us for assistance.

Picture courtesy of worlddub.blogspot.com

The latest in a series of law review articles has been released that relate to the tort of “Tortious Interference With Expectation of Inheritance.”  In those states that recognize this tort, it gives someone the right to sue a decedent’s beneficiary or distributee for money that is allegedly wrongly received in an inheritance when the following elements proved by preponderance of the evidence (i.e., 50.1% proof for each element):

1. the existence of the expectancy;
2. that the defendant intentionally interfered with the expectancy;
3. that the interference involved tortious conduct such as fraud, duress, or undue influence;
4. that there was a reasonable certainty that the plaintiff would have received the expectancy but for the defendant’s interference; and
5. damages.

Irene D. Johnson,  Tortious Interference With Expectation of Inheritance or Gift – Suggestions for Resort to the Tort, 39 U. Tol. L. Rev. 769, 771 (2008) (citing Sonja Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229, § 2 (1983)).

In New York, however, this tort is not recognized. But aggrieved beneficiaries may resort to the remedy of “imposition of a constructive trust” in many, although not all, situations in which that person would have sued for tortious interference with expectation of an inheritance in other states, and with similar benefits. Diane J. Klein, A Dissappointed Yankee in Connecticut (or Nearby) Probate Court: Tortious Interference With Expectation of Inheritance – A Survey With Analysis of State Approaches in the First, Second, and Third Circuits, 66 U. Pitt. L. Rev. 235, 282-86 (2004).

The leading case for the imposition of constructive trusts in New York surrogate’s court, as a remedy for the same kinds of fraudulent actions that the tort of interference with expectancy of inheritance is meant to address, is the New York Court of Appeals decision in Latham v. Father Divine from 1949.

In that case, Lucy Latham bequeathed Father Divine, a charismatic preacher, and several of his associates, the bulk of her assets in her Will. Several cousins of the deceased testatrix brought significant evidence that Ms. Latham intended to draft a new Will for their benefit, but that associates of Father Divine physically stopped her from executing it and the cousins allege that the preacher’s associates ultimately killed her to prevent her from executing another Will. After a settlement in Surrogate’s Court, these cousins sued Father Divine and his associates in order to have the court impose a constructive trust on the assets Father Divine received.  This would effectively force him to turn over the money and property that he received to the plaintiffs.

The Court, in that case, explained  (page 30) that:

The answer is in Ahrens v. Jones (169 N. Y. 555, 561[]): “‘The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing, but it acts upon the gift itself as it reaches the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has full effect by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee, as a trustee ex maleficio, to turn over the gift to them.’” (emphasis added)

As noted by Prof. Johnson (supra at 239), constructive trusts may not have all of the advantages of the tort remedy. For instance, an aggrieved expected beneficiary cannot use this remedy against an innocent third party to whom estate property was sold after receipt of the assets by the fraudmeister. Also, a constructive trust will not allow a plaintiff to get actual damages, compensatory damages, punitive damages, or a jury trial. 

But for those of us in New York, the constructive trust is all we’ve got!  As readers of this blog know, our office has a very busy estate litigation practice so if you think that you, or someone you know, has been cheated out of an inheritance by some wrongdoing by another, you can call us to discuss your case.

Picture of Father Divine courtesy of tailorstreetstudio.