The Elliot Schlissel New York Law Blog

Will

The purpose of a will is to set down the manner and disposition of an individual’s assets and his or her estate, at the time of his or her death. A will has no effect during a person’s lifetime. It only deals with the disposition of the person’s assets at the time of death. The will should be crafted by an experienced estate planning lawyer. It needs to be executed in accordance with specific formalities as prescribed by law.  These formalities vary from state to state.

Living Will

A living will is a document that deals with life prolonging issues. In a living will, an individual specifies which life prolonging measures and medical procedures he or she wants utilized in the event of his or her incapacity. The living will also needs to be executed with specific execution formalities. This document should only be drafted by an attorney experienced with elder law end of life issues.

Revocable Living Trust

A revocable living trust is a testamentary document similar to a will. However, a revocable living trust is sometimes prepared as a substitute for a will. Revocable Living Trusts avoid probate. It is recommended, when the individual drafts a Revocable Living Trust that they also draft a pour over will to go with it. A pour over will is designed to distribute assets which are left out of the Revocable Living Trust.

Power of Attorney

A Power of Attorney is drafted by an individual who is referred to as the principal. The principal appoints someone who deals with financial issues such as paying bills, if he or she becomes incapable of dealing with these financial issues. The Power of Attorney can be drafted in a manner which allows it to stay in effect even in the event the principal becomes  incompetent. Powers of Attorney are specifically designed to deal with financial matters and not with medical or health care issues.

There was a recent case in Long Island, New York concerning issues surrounding “the right to die.” Sungeon Grace Lee, age 28, decided her life was no longer worth living. She advised her doctors she wanted to end her life by cutting off the life support system keeping her alive. Her parents, who are deeply religious, vehemently opposed their daughter’s wishes

Tumor On Her Brain

Ms. Lee had a tumor on her brain stem. She had been suffering from seizures. During one of her seizures she was rushed to North Shore University Hospital in Manhasset, New York. The seizure left her paralyzed from the neck down. At that time, she was hooked up to a life support machine that allowed her to breathe.

Parent’s Sue To Keep Daughter Alive

Ms. Lee’s mother, Jin Ah Lee, and her father, Man Oh Lee, a Pastor of the Antioch Missionary church in Flushing, Queens, were both deeply religious people. They retained an attorney and obtained a restraining order preventing their daughter from ending her life. After protracted litigation, both the trial court and appellate  court set aside the petition of Sungeon Lee’s parents. In their decision, the courts indicated that the daughter was competent to make her own medical decisions. However, in the end, Ms. Lee agreed to withdraw her request to be allowed to die and complied with her parents’ wishes.

Ms. Lee has been moved from North Shore University Hospital to her parents’ home where she is competently taken care of.

About The Author

Elliot S. Schlissel, Esq. is an Elder Law Attorney with more than 35 years of legal experience. He represents individuals concerning Medicaid planning, wills, trusts and estate matters, end of life issues and estate planning matters.

Retirement is supposed to be the “golden years.” Today, the golden years maybe a thing of the past. It is estimated three quarters of Americans facing retirement age have approximately $30,000 in savings. The failure of Americans of retirement age to develop a significant amount of savings may have a long term impact on retirement in United States.

401K Plans Versus Pensions

In the past, Americans of retirement age relied on pensions for monthly income. Extremely few Americans still have pension plans. Pension plans were replaced decades ago by 401 K plans, for most Americans. These 401 K plans presumed Americans would have the foresight and ability to save on a regular basis for their old age.

Teresa Ghilarducci, a Professor of Economics at the New School, in a recent New York Times interview stated individuals were “asked to do what they were not responsible enough to carry out, which was to set up a long term savings plan that anticipated future financial needs.” The savings accumulated by the middle class senior citizens will not be sufficient for the large majority to support their standard of living. It is estimated Americans should save eight times their annual income to maintain their living standards.

Retirement In Poverty

The majority of Americans, when they reach retirement age, will have allocated less than $5.00 a day for food. This will put them at the poverty level. Social Security will not provide a safety net sufficient to meet retired Americans long term needs.  Americans should look at Social Security as a base for their savings not as a safety net. It will not be enough to live on!  This is especially true with the movement among certain political parties to reduce government benefits to senior Americans.

Job Opportunities For Seniors

When a worker who is more than 55 years of age loses his or her job they find it difficult to find new employment. When they find new employment they are often required to work for reduced wages or on a part time basis. The unemployment rates among Americans 55 and older are higher than those of the general population.

About The Author

Elliot S. Schlissel is in elder care attorney helping senior Americans in dealing with medicaid issues, nursing home issues and drafting wills, trusts and healthcare proxies.

A reverse mortgage is a means by which seniors utilize the equity in their homes.  The equity is turned into cash.  It can be used to supplement social security, pension payments, and 401K plan withdrawals. In most situations, the proceeds of a reverse mortgage are taken out in a lump sum.  Arrangements can be made to have periodic payments over the period of your life, too.

The big benefit of a reverse mortgage is you don’t have to repay it during your lifetime.  It gets repaid upon your death.  The drawback of a reverse mortgage is it tends to have a higher interest rate than conventional mortgages.  In addition to interest payments and an annual insurance charge, the Department of Housing and Urban Development’s home equity conversion reverse mortgage program level an initial one time insurance premium from 2% to .01% on your home’s value.  It should be noted as with any mortgage, there will be closing costs regarding reverse mortgages.

New York Estate Planning Lawyers

Whether you take out a reverse mortgage or not is a complicated question.  You should meet with an estate planning attorney.  Discuss your finances and the consequences of a reverse mortgage before proceeding to take one out.

Planning for retirement is difficult.  Today, nest eggs are much smaller than they have been in the past.  Many individuals and families plan for retirement at the last minute.  This can cause problems.

Save And Invest

Americans need to save today, not tomorrow.  It takes a lot of will power to forego today’s pleasures and have money for the long run.

Retirement Is Not A Permanent Vacation

Some TV advertisements present retirement as a permanent vacation.  You see pictures of individuals playing golf in a Shangri-La type atmosphere.  Americans are living longer today.  The Shangri-La atmosphere presented in those pictures can become boring and stale.  Even if you can afford living in a retirement community of that type, life expectancy can stretch retirement for as long as thirty or forty years.

Unanticipated Expenses

A Study by Fidelity Investments indicates a couple who are 65 years of age when they retire will need more than $250,000 to pay for medical expenses throughout their retirement.  These medical expenses do not include nursing home care.  The study found the average medical expenses for a 65 year old couple amounted to more than $530 per month.  It should be noted Medicare is not free and doesn’t cover all medical expenses!

Be Careful With Your 401K Plan

A 401K Plan is retirement plan.  Many people borrow large sums from their 401k plans and are not able to pay these sums back. Depleting your 401K plan can have a significantly negative impact on your ability to retire.

Be Careful Of Your Priorities

Steven Cuhna, a certified financial planner with Bay Street Financial Services, suggests you remember the 5 P’s regarding retirement,  Prior Planning Prevents Poor Performance.  You should have a plan that analyzes your financial goals, retirement needs, investment and estate plan.  You may live a long time but you will not live forever.  Having a will and/or irrevocable trust may be necessary to help you preserve your assets.  Another solution is to never stop working!

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.