The Elliot Schlissel New York Law Blog

Who needs estate planning?  Probably you do!  Estate planning does not relate to an individual’s net worth.  The purpose of an estate plan is to see to it that your financial goals and the financial goals of your family can be met even after you die.

There are several elements of an estate plan.  A will, a power or attorney, a living will and a health care proxy.  These basic documents comprise an estate plan.

Why You Need A Will

A will is a very basic document in which an individual lays out what he or she wants to happen to his or her assets upon death.  It can also name guardians to the decedent’s minor children.  A major reason for having a will is that if you die without a will you are considered to have died “intestate”.  Individuals who die intestate will expose their heirs and loved ones to additional expenses in dealing with the complications involved with estate administration.

Are Trusts Only For The Rich?

Trusts are documents that allow you to control your assets and its distribution after you die.  Trusts can also be utilized to reduce estate and gift taxes.  Trusts are no longer for the rich.  They’re a valuable estate planning device many middle class families utilize.

Annual Gift Giving

Each individual may give up to $13,000 a year or $26,000 if you are married and giving the gift in conjunction with your spouse.  In addition you can pay an unlimited amount in medical and educational expenses for an individual if these funds are paid directly to the institutions that provided the medical or educational services.

Estate Planning Lawyers

Estate planning is a sophisticated undertaking.  You should utilize experienced well thought of estate planning attorneys to handle these sophisticated transactions.  The law offices of Elliot Schlissel have been drafting estate plans for their clients for over thirty years.  The firm probates wills.  They litigate contested wills.  The firm’s attorneys have extensive experience in bringing guardianship proceedings, drafting revocable living trusts and irrevocable living trusts.  Elliot S. Schlissel, Esq. is a member of the National Academy of Elder Care Attorneys.  He provides all types of elder care counseling to his clients including issues involving nursing home abuse, Medicaid, Medicaid planning techniques, specials needs trusts for special needs children which are also referred to as supplementary needs trusts.  Feel free to call our office for a consultation.

The Garden of Eden Nursing Home is located in Bensonhurst, Brooklyn, New York. The residents of this adult facility have been forced to live in a poorly maintained residence and under unsanitary living conditions. Multiple lawsuits have been brought related to complaints of mistreatment from the residents.  The State Health Department has sited the facility for numerous violations during the course of 2011.

Pay Your Rent Or We’ll Put You On The Street

Linda Benjamin, age 58, who has been living at the facility for the past nine years, has said “they have black hearts – all of them.”  She claims to have been bullied and threatened by administrators during the entire 9 year period she has been living at the facility.  Benjamin recently asked the administrators of the facility to reduce her rent so she could purchase a new set of dentures.  She was told that if she didn’t pay her rent she would be out on the street.

Residents of the facility claim the administrator Martin Amsel bullied patients into attending optional treatment meetings.  They would be threatened with eviction or unnecessary hospital stays if they didn’t do as requested.

The State Health Department documents indicate that residents complained they were being served stale and moldy food.

Administrators Defense

Jeff Sherrin stated “Garden of Eden and its Administrator were wrongfully accused by the Department of Health inspector of overzealousness in trying to encourage residents to attend programs and take medications that their doctors had order for them”.  He further stated that the facility has one of the best inspection records of any adult facility in the State of New York.

Numerous residents of the facility disagree with Jeff Sherrin’s analysis.  They claim they are bullied, harassed and tormented by the management of the facility

Elder Care Lawyers

The Elder Care Lawyers at the Law Offices of Elliot S. Schlissel have been helping seniors with numerous issues for over two decades.  The law firm had extensive experience with Medicaid, Medicaid planning techniques, drafting special needs trusts for special needs children, representing executors in the probating of wills, contesting wills and drafting wills and trusts.  The firm also prepares guardianship documents for submissions under Article 81 under the New York Mental Hygiene Law.  In addition the firm drafts revocable living trust and irrevocable trusts for their clients.  Call us for a free consultation regarding all elder care and wills and trusts issues.

The investigators have accused Bronx Surrogate Judge Lee Holtzman of letting his attorney friends overcharge Bronx residents who died without wills for the handling of their estates. Judge Holtzman has been accused of letting lawyers, including his chief campaign fundraiser, responsible for client’s estates to remain with him for more than ten years without the appropriate legal action being taken.

The commission investigating Judge Holtzman has made recommendations that disciplinary action be taken against him. The disciplinary actions can result in the Judge’s removal and/or other penalties.

Cronyism in the Bronx

Judge Holtzman’s top fundraiser lawyer friend is Michael Lippman. Mr. Lippman raised $125,000 for Judge Holtzman’s 2001 judicial campaign. He was appointed as the attorney for the Public Administrator of Bronx County. His job was to oversee the estates of individuals who died without wills and closely related next of kin. The complaint by the Judicial Commission states that between the years 1995 and 2009, Judge Holtzman approved legal fees for Michael Lippman without appropriate documentation that Attorney Lippman had completed the necessary legal work to earn these legal fees. Mr. Lippman was allowed to collect advances on his legal fees at a time when he was in financial difficulty. His financial difficulties included over a $1,000,000 in gambling debts and owing more than $400,000 on a mortgage.

Michael Lippman, Esq. Arrested

Michael Lippman was arrested in 2010. He was charged with billing $300,000 for legal work he didn’t perform. He pled not guilty and the case is still pending in the courts.

The complaint against Surrogate Judge Holtzman stated that he had “allowed a social political… relationship to influence his judicial conduct.” The commission, in its investigation, found Judge Holtzman ignored the fact Michael Lippman was inappropriately billing estates for legal services. Judge Holtzman, through his attorney, David Godosky, claimed the commission’s allegations were untrue, and Judge Holtzman was deceived by Michael Lippman.

Wills, Trusts and Estates Law Firm

Elliot Schlissel, Esq. has used his expertise, experience and knowledge of the courts to handle probate and will contest matters before the Surrogate’s Court for more than three decades. In addition, he handles estate planning, elder care matters, Medicaid planning issues, special needs trusts and all other issues involving executors and the beneficiaries of estates. Feel free to call our office for a free consultation at 516-561-6645, 1-800-344- 6431 or 718-350-2802.

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.

There are many very important uses for wills.  However, there are things for which wills were not designed and cannot accomplish.  The following are a list of things that can NOT be dealt with in a will:

1.  If you own assets in a “joint tenancy” with another individual, or a “tenancy by the entirety” (a marital estate), you cannot dispose of the assets in a will since there are two owners of the assets.  If one party dies, the surviving party inherits all of the remaining assets.

2.  If you have a life insurance policy with a named beneficiary, you cannot change the beneficiary designation in a will.  To change a beneficiary designation, you must contact the life insurance company and fill out a “change of beneficiary” form.

3.  Stocks and bonds that have a beneficiary designation, such as transfer upon death (TOD) cannot be bequeathed in a will.  To change the beneficiary designation on these types of stocks or bonds, you must contact the security company that holds the security and fill out the appropriate paperwork.

4.  Pension plans, 401K plans, 403B plans, IRA’s, SEP’s and other retirement plans that have a named beneficiary cannot be impacted by a will.  To change the beneficiary designations, you must contact the administrator of the plan and complete a “change of beneficiary” form.  However, if the beneficiaries predecease you or there are no beneficiaries named, you can name a beneficiary for this asset in a will.  This also applies to life insurance policies and annuities.

5.  Bank accounts that have a “payable on death” feature or a beneficiary designation cannot be devised under a will.  For example, if you have a bank account and it says “pay to my daughter Sue”, and you write a will indicating proceeds in that account are to be paid to your son John, the designation in the bank account will control.

6.  You cannot leave contingent gifts in a will.  An example would be a gift that is contingent upon a person becoming married, divorced or changing his or her religion.  However, you can put a clause in a will leaving money to a son to pay for his college education.  In the event the son does not go to college, those funds could be used for another purpose.

7.  You cannot have a clause in a will that goes against public policy or is illegal.  An example of this would be an attempt to leave money in a will for the purpose of buying illegal drugs.

8.  You can’t make appropriate arrangements for a child or family member with special needs in a will.  A special needs trust is required for this purpose.

9.  Wills may not contain clauses that leave assets to pets.  For example, you cannot leave $10,000 to your dog Rover.  However, you are allowed to leave money to an individual taking care of your dog, or a trust can be set up and funded through your will to pay for such care.

Should you have any questions regarding wills, trusts and estates, feel free to contact the attorneys at the law office of Elliot Schlissel, by email or at 1-800-344-6431.

Americans today are living longer than prior generations.  As individuals grow older, their needs may increase.  Long-term care often involves children caring for their elderly parents.  Children who have careers and/or families of their own may find it difficult to help care for their parents as they grow older and infirm.

Healthcare Aids and “Live-ins”:

The best way to handle these matters is to encourage your family member to become involved in his or her own long term planning.  Individuals want to maintain their independence.  There are times when a senior family member will reject your help.  If your family member needs day-to-day assistance, a live-in companion may be a good route to take.  Paying for healthcare can be expensive.  A Medicaid application may need to be submitted to see if your family member qualifies for Medicaid benefits.

End-of-Life Issues:

You should discuss a variety of end-of-life issues with your elderly family members.  You should ask them whether they have a will, and if they don’t, suggest that they write a will.  Discuss the need for a power of attorney should they become unable to handle their financial affairs.

A healthcare proxy or a living will may also be helpful to determine medical treatment issues should a loved one become mentally incapacitated.

Asset Issues:

You should discuss where your family member maintains his or her important information and documents.  If password protected software is used, you should have access to those passwords if needed.  Should your family member have bank accounts, safe deposit boxes, retirement accounts, stocks, bonds or life insurance, you should discuss where these assets are located.

Helping the elderly may be difficult, but it can also be very rewarding.  Your parents brought you into this world and helped you to grow and develop.  Children should help their parents and other family members.

Should you have any questions regarding helping a senior citizen or senior issues, feel free to call the elder law attorneys at the law office of Elliot Schlissel, at 1-800-344-6431 or by email.

Individuals with significant assets can reduce their tax liability upon their death by using sophisticated wills and trusts. In 2010, the wills, trust and estate area is facing a unique situation. For the 2010 calendar year there is no federal estate tax.  After 2010, the federal estate tax exemption will go back to one million dollars.

Well drafted wills and trusts can create schemes that minimize the estate tax faced by individuals.  Should you have an estate of over a million dollars, it is important that you meet with an estate planning attorney.  Appropriate action must be taken to see to it that your heirs receive the assets you have accumulated during the course of your lifetime without paying 50% of these assets in federal estate taxes.

Should you have any questions and wish to discuss estate planning, contact the estate planning attorneys at the law office of Elliot Schlissel at 1-800-344-6431 or by email.

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.

Contesting a will involves a formal challenge to the validity of the will. The challenge to the will can be based on the failure of the execution ceremony to meet the appropriate statutory requirements. Another avenue for challenging a will involves allegations of the testator – the party making the will – not having the mental capacity to understand what he or she was doing at the time the will was executed. Wills also can be challenged for fraud, duress or undue influences in the State of New York.

Who Can Contest A Will?

The issue of who can contest a will deals with the concept of standing. Individuals who receive assets from a will are called beneficiaries. Beneficiaries have the standing to challenge a will if they feel their are not being treated appropriately. Individuals who would have inherited under intestacy (if there was no will) can also challenge wills.

In the event an individual dies without a will he or she is considered to have died intestate. Intestacy is a statutory scheme of inheritance for individuals who do not have wills. The intestacy scheme is based on blood lines. For example, children inherit from their mothers and fathers, and if there are no children, then the brothers and sisters of the individuals who died inherit and so forth down the line.

Duress is another ground for challenging a will. This happens when the individual is threatened into writing a will.

Lack of mental capacity is also a basis for challenging a will in New York. This involves situations where the individual either due to mental illness, infirmity, or taking drugs that alter his or her ability to make informed decisions, executes a will. Another ground for challenging a will is called undue influence. This is usually a case were a trusted individual, friend, relative or caretaker engages in a scheme for the purpose of having a will created for that individual’s own benefit.

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

Governor David Patterson, in the State of New York has recently signed into law the Family Health Care Decisions Act. This statute authorizes health care decisions to be made for a person who is incapacitated and has not prepared a healthcare proxy specifically indicating his or her wishes. This statute authorizes family members without a written advanced directive to make decisions to withhold or withdraw life support systems for their family members.

The best means for dealing with making of medical decisions, if you should become disabled or incapable of making your own medical decisions, is to execute a health care proxy appointing someone you trust to make these decisions for you. Unfortunately more than 75,000 incapacitated individuals die each year in the State of New York with out having a health care proxy. Court decisions have ruled that life sustaining treatment cannot be withheld or withdrawn without clear and convincing evidence that the person would decline if they could. This has resulted in people being subject to fruitless treatments that actually violates their personal wishes or religious beliefs.

The new statue sets up a hierarchy to determine those individuals who can make the choices. The list of individuals capable of making these choices range from a guardian, to spouse, to a domestic partner, an adult son or daughter, parent, adult brother or sister, and/or some other relative or close friend. The purpose of the statue is to prevent needless medical treatment for those who, if they were competent, would not want it.

- Elliot Schlissel, Esq.

Image courtesy of Sun Sentinel