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Frequently Asked Questions

  • What is Estate Planning?

    Estate planning is the process by which you decide how your estate will be distributed when you die. In addition to determining where your property should go after death, your estate plan will also designate someone to manage your assets and make health care and personal care decisions for you if you ever become unable to do so for yourself. If you die with minor children, your estate plan will also nominate who you would like to be appointed as your child’s guardian. Estate planning typically attempts to eliminate uncertainties over the administration of probate and maximize the value of the estate by reducing taxes and other expenses.
  • What is a Living Trust?

    A Living Trust is a legal tool for financial planning that allows a person (Trustee) to hold another person’s property (Settlor) for the benefit of someone else (Beneficiary). In most cases, the settlor, trustee, and beneficiary are the same person (at least until that person dies or becomes incompetent). In other words, if you set up a Living Trust, you can be the settlor, the trustee and the beneficiary of the trust. You keep full control over the property and have the right to use and spend that property as if it had never been put into the trust. With a living trust, your assets are put into the trust, administered for your benefit during your lifetime and transferred to your beneficiaries when you die—all without the need for court involvement.
  • What is a Will?

    A will is the traditional method to distribute property after death. A will expresses the deceased person’s wishes to both the court and the executor. You can use a will to name beneficiaries to receive your assets, nominate executors, nominate a guardian to take care of your children, and give instructions about your burial or cremation and other memorial observances. In order to be valid, a will needs to be validated by a Court through the Probate process.
  • What is Probate?

    Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in his or her will. Typically, the executor named in your will would start the process after death by filing a petition in court and seeking appointment. Your executor would then take charge of your assets, pay your debts and, after receiving court approval, distribute the rest of your estate to your beneficiaries. If you were to die intestate (that is, without a will), a relative or other interested person could start the process. In such an instance, the court would appoint an administrator or personal representative to handle your estate. Probate is a lengthy process (approximately 9-14 months) and involves a lot of paperwork, time, and money. In addition, the documents filed in a probate proceeding are a matter of public record and some may wish to avoid public scrutiny of their financial situation.
  • What’s the difference between a will and a living trust?

    A will is a legal document that becomes effective only after your death and after it has been validated by a Court. A living trust, on the other hand, is in effect while you’re still living; even though you transfer property into the trust, you will still have control of the trust and can make changes or additions.
  • What are the advantages of a Living Trust?

    The biggest advantages of a Living Trust are:
    Probate Avoidance. A living trust avoids the time and expense of Probate. When you die, your successor trustee can distribute your property according to your wishes without having a court to   authorize the distribution. Lower Estate Taxes. A living trust can lower or eliminate estate taxes. A Living Trust can help avoid or reduce estate taxes, gift taxes and income taxes, too. Protection against Creditors. A trust can give assets to the beneficiaries and protect those assets from the beneficiaries’ creditors. Privacy. A trust is not a public record. The only exception is a new law that says the successor trustee must give all your heirs at law (the relatives who would have the right to inherit from you if you had died without a Will) the right to ask for and get a copy of the trust.
  • Do you need a Will if you have a Living Trust?

    Yes, everyone with a living trust should have a will to back-up any property that is not transferred to the Living Trust. Without a Pourover Will, any property acquired after you set up your Living Trust that inadvertently is listed in your name rather than in the name of your trust would normally pass according to the terms of your Will, not your Living Trust.  If you have young children, you can use your Will to nominate a guardian for your children if both you and the other parent die or are unable to care for your minor children.
  • What does an Executor do?

    Your Executor is appointed to carry out the provisions of your Will. During your lifetime, the Executor has no authority whatsoever over your assets; but after you are gone, the Executor is the person (or it can be a bank or trust company) who will carry out the provisions of your Will, settle all debts and taxes you or your estate may owe and make sure that your intended beneficiaries receive all that they are entitled to. The most important qualities to look for when choosing an Executor are: Will they take the job seriously and act promptly and responsibly? Will they be respectful of my wishes and the persons I have chosen as my beneficiaries? Will they be able to carry out the necessary tasks? Will they make good choices regarding the professional they will hire to assist them?
  • What happens if I do not name a beneficiary on my retirement accounts or life insurance?

    In most cases, in the absence of a beneficiary designation, your life insurance or retirement account will pass to your estate and will be distributed as provided in your Will or according to the laws of your state if you do not have a Will. However, allowing such assets to pass in that manner may cause them to become unnecessarily subject to higher taxes or creditors’ claims or to become embroiled in a Will contest. Also, in some instances, the policy or account will automatically be distributed to your legal next of kin, regardless of the terms of your Will. The important thing is for your beneficiary designations to be consistent with your overall estate plan. Our NY estate planning lawyer can advise you regarding the designation of appropriate beneficiaries and contingent beneficiaries.
  • What is a Power of Attorney and what does “attorney-in-fact” or “agent” mean?

    A Power of Attorney is a document by which you appoint one or more to act on your behalf as your Agent. The term “attorney-in-fact” means the agent you appoint under a Power of Attorney. Despite the name, the person you appoint need not be a lawyer. A Power of Attorney is a powerful and very important document. Although we recommend that everyone execute a Power of Attorney so there is someone who can act on your behalf in a variety of circumstances, it is an important decision which should be discussed carefully with your attorney.
  • What is a Health Care Proxy and who should I select as my Health Care Agent(s)?

    A Health Care Proxy is a document by which you appoint someone to make medical decisions for you in the event you are unable to do so for yourself. The person designated as your Health Care Agent should be someone who is not only close to you, but also someone who you can trust to understand and carry out your wishes regarding medical care and end of life decisions if ever called upon to do so. Designating a Health Care Agent does not limit your autonomy to make your own health care decisions. In fact, it increases that autonomy by providing for someone to express those wishes on your behalf in the event that you cannot express your wishes yourself.

Medi-Cal Planning FAQ

  • What is Medi-Cal Planning?

    Medi-Cal Planning involves the design of a legal plan to reallocate your assets in such a way that Medi-Cal will not take them into consideration when determining your eligibility for coverage. If you need nursing home care, or if you believe that you or your spouse may be in need of such services in the future, you will need to qualify for Medi-Cal. Even families with assets in the million can qualify, and have Medi-Cal pay for the cost of care, rather than depleting your own resources to cover these costs.
  • Is it true that if my spouse is in a nursing home, I have to give away all or most of my assets as the only means to qualify for Medi-Cal cost of care?

    No, with proper planning, our trusts will enable you to maintain full control and access to your asset income while ensuring that those assets are not counted towards your eligibility for Medicaid.
  • Why should I apply for Medi-Cal coverage if I have significant assets?

    The average cost of a nursing home runs anywhere from $5,000-$7,000 a month. All but the wealthiest American would be able to afford the cost of care. Proper Long Term Planning can ensure that the costs of your own long term care does not consume the hard earned wealth of your estate so that it can go to your loved ones.

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