Estate Overview

WILLS VS. TRUSTS

Wills are basis of every estate plan but are sometimes not enough in every situation. If you have a large estate and are concerned about minimizing the tax consequences of inheritance, it may be more advantageous to create a trust now. You may also want to sprinkle your estate to different heirs in different amounts at different times. Another reason that some people choose to use trusts for their estate planning needs is that a will is subject to the requirement of passing through probate. During probate, heirs can contest the legal validity of the will and engage in adversarial litigation. Creditors can also file claims against the estate.

However, even if you create a trust, it is still in your best interests to execute a will to provide for the disposition of any assets that you did not place in the trust. It is also possible to include provisions in your will to transfer your assets into the trust upon your passing, which is known as a testamentary trust. You may also want to include in your will your wishes concerning a guardian for your children.

Medicaid Trusts- Medicaid Asset Protection Trust

Special Needs Trusts

PROTECTING PUBLIC BENEFITS THROUGH SPECIAL NEEDS TRUSTS

Without experienced legal counsel, the process of creating an estate plan can feel overwhelming – even more so for those who have concerns regarding the impacts that their will or trust may have on a child’s eligibility for public assistance benefits.

If you have a child who is physically or mentally impaired and who therefore cannot earn an income to be self-sufficient, he or she may become eligible for Supplemental Security Income (SSI), and other support programs when you pass away and are no longer there to provide care and support.

However, because these are means-tested programs, if you leave your child more than a certain amount in a will or in benefits through a trust, you may inadvertently disqualify him or her from being able to receive these public benefits.

Unless you have a substantial estate and will be leaving your child enough to live comfortably while also paying for any necessary medical treatment, this could place your child in a difficult situation. In some circumstances, even a relatively small inheritance could bar your child from being able to receive benefits.

PROTECT YOUR CHILDREN OR GRANDCHILDREN WITH A SPECIAL NEEDS TRUST

Richard Bartel, Esq. is experienced in the field of estate planning and has extensive knowledge and understanding of the provisions of the New York Estates Powers and Trust laws. When we take on a case involving the issues arising from the complications between inheritances and public assistance programs, we often advise for the creation of a special needs trust.

Simply put, a special needs trust is a unique trust that meets particular legal requirements so that your child can receive an inheritance while still preserving his or her eligibility for means-tested public benefits programs. By establishing a special needs trust, you can ensure that your child will enjoy a comfortable quality of life while also being able to receive the public benefits necessary to pay for basic living expenses and medical care.

Creating a special needs trust can be a daunting task, especially considering that it needs to be established in such a way as to ensure its success throughout the years following your passing. This is not a task for a person with no legal background to handle. Consequently, a knowledgeable estate planning lawyer can work closely with you to draft the necessary documents tailored to fit your unique circumstances, ensuring that all necessary provisions are included in the trust so that your child can maintain eligibility for public benefits.

Along with establishing the trust, it is also important to choose the right person to act as the trustee after your passing. Your selected trustee should be someone you can rely on to properly tend to the financial aspects of the trust and who will avoid any errors that could possibly disqualify your child from receiving benefits or do anything to misappropriate funds from the trust.

COMPASSIONATE AND DEDICATED ESTATE PLANNING

In addition to drafting the documents for special needs trusts, we also provide knowledgeable legal counsel to individuals who have been appointed as trustees to administer special needs trusts. If you are a trustee, we can guide you in carrying out your duties and help you avoid errors that could lead to allegations of breach of fiduciary duty or the disqualification of benefits.

Overview Of The Probate Process

EXPERIENCED LEGAL COUNSEL FOR ADMINISTERING PROBATE

Losing a loved one can be an emotionally difficult time. This situation is made even more overwhelming when the surviving family member must go through the often-arduous process of settling his or her estate. If you are appointed as the executor of a decedent’s will that requires probate, you will be subject to a lengthy court process that requires significant documentation and possible fees.

Richard Bartel, Esq. understands that the probate process can be complicated. We can help you prepare the necessary filings and notices during the probate process and want to help ensure that you can get through it easily and swiftly.

Richard Bartel, Esq. has experience with New York probate and estate law so you can trust that we can guide you through the probate process with the efficiency you need.

STEPS OF THE PROBATE PROCESS

The first step in the probate process is to file a request with the Surrogate Court and submit the original will and the death certificate. You must then notify all known creditors, beneficiaries, and heirs and file proof that you did so.

The next step is to prove the validity of the will through statements from witnesses, known as a self-proving affidavit. Once all of the documents are filed, you may begin the administration of the estate.

You will also have the following responsibilities as the executor of the estate:

This process can be entirely overwhelming, especially since an executor of a decedent’s will would typically have to face conflicts and disputes among beneficiaries and creditors. Facing the death of a loved one is difficult enough without having to deal with his or her financial and legal matters as well.

Richard Bartel, Esq. is dedicated to helping executors through the probate process as efficiently as possible.

Probate

EXPEDITE THE PROCESS WITH THE HELP OF AN EXPERIENCED PROBATE ATTORNEY

When a person passes away and leaves a will in New York, his or her estate will be divided up according to the terms of the will. However, this can’t be done until the estate has passed through the probate process. During probate, the will is examined to determine whether or not it is valid.

Creditors are then notified that the estate is in probate, and they are given up to seven months to pursue claims for outstanding debts. Beneficiaries and other potential heirs are also notified, giving them the opportunity to contest the will or take any other actions. Richard Bartel, Esq. can guide you through the process in order to mitigate any unnecessary stress.

REASONS TO AVOID PROBATE IN NEW YORK

Many of the clients who come to Richard Bartel, Esq. for assistance with estate planning are concerned with ensuring that their estates will avoid probate.

Some of the disadvantages associated with the probate process include:

Time-consuming nature – Probate can be an incredibly lengthy process, often taking several months or even years to complete. Beneficiaries cannot receive their inheritance until all other steps of the probate process have been fulfilled.

Court costs and legal fees – The probate process is expensive. All of the court costs and legal fees can decrease the aggregate value of the estate that is available to beneficiaries. Lack of privacy – Probate is a matter of public record, meaning that information about the financial affairs of the estate and the provisions of the will are not kept private. Personal information contained in the will may be public fodder, such as why an adult child has been disinherited.

Potential disputes – Notification of the probate process may provide an opportunity for an heir to
contest the will or challenge its validity.

WAYS TO AVOID PROBATE

If you want to ensure that you avoid the probate process, Richard Bartel, Esq. may be able to help you implement strategies to achieve this goal. We will carefully review your personal circumstances and determine appropriate ways to avoid the probate process.

For example, we might advise you to establish a trust, which involves transferring funds and assets into the trust so that they will no longer be part of your estate. Assets in a trust will never be subject to probate, given that it has been transferred out of your name.

We may also be able to draft your will in a way that minimizes the impact of probate and to simplify and expedite the process. Additionally, if the value of the estate is below a certain amount, your heirs may be able to avoid probate by filing for a simplified procedure.

BENEFITS OF PROBATE IN NEW YORK

When we meet with you to review your situation, we will carefully discuss your priorities and the nature of your case to determine whether or not it should be a priority for you to avoid probate of your estate. While many people want to avoid the probate process, it does offer certain advantages, including the following:

• You may be able to settle all of your debts.
• The probate process starts a time clock. If creditors take more than seven months to submit their claims after they receive notice of probate, they forfeit the right to pursue any claims.
• The court supervises the process and ensures that it is properly carried out
• Heirs have access to the court system to resolve any dispute.

WHY SHOULD YOU CHOOSE A PROBATE LAWYER?

Whether you are seeking probate avoidance strategies, probate litigation counsel, or any other probate guidance, Richard Bartel, Esq. has the knowledge and dedication you need on your side.

Powers Of Attorney

DRAFTING A COMPREHENSIVE ESTATE PLAN

Richard Bartel, Esq. provides clients with a full spectrum of estate planning solutions, including wills and trusts that direct the distribution of assets upon the death of the individual. We also prepare estate planning documents that are relevant during the life of the client, such as a power of attorney. Richard Bartel, Esq. can help you understand your options for ensuring that your wishes are carried out, should any future circumstances render you unable to communicate this information.

WHAT IS A POWER OF ATTORNEY?

A power of attorney is a legal instrument in which you, as the principal, appoint another person to serve as your attorney-in-fact. By granting this appointment, you give the other party the authority to act on your behalf in financial matters, such as the following:

Powers of attorney are highly flexible in terms of how they can be drafted. As the principal, you have the power to determine all of the provisions included in it. You can choose to grant the attorney-in-fact nearly unlimited powers, or you may list only a few, specific powers your appointee can enact on your behalf. You can also choose to define the duration and scope of a power of attorney. You can make the power of attorney effective immediately, effective for a shorter amount of time such as while you are out of the country, or only effective upon your incapacity. In the context of estate planning, it is most common to use a durable power of attorney, which will come into effect in the event that you become incapacitated due to a serious illness or injury.

By drafting a power of attorney, you can relieve your loved ones of the potential for the strife and stress that may come with trying to figure out who should assume control of your estate. You can avoid a conservatorship or guardianship proceeding that may cause uncertainty and further drain the assets of your estate and, furthermore, you can ensure that the person who is in charge during your incapacity is someone you trust, rather than leaving it up to the decision of the court.

Many of our clients also request that we create a health care proxy, which is a document that you can use to appoint an agent who will make decisions concerning the scope and nature of medical treatment that you will receive in the event of incapacity.

LITIGATION INVOLVING POWERS OF ATTORNEY

In the event that the personal estate of a friend or family member is being managed by an attorney-in-fact, and you have reason to believe that something is amiss, we may be able to help you. If upon investigation, it appears that the attorney-in-fact is indeed violating the terms of the power of attorney or is guilty of some type of misconduct, it may be necessary to bring a petition to the probate court. The judge may take action to correct the situation, including possibly removing the attorney-in-fact from his or her fiduciary position.

Similarly, the attorney-in-fact may bring a petition to court if he or she is met with resistance in having the power of attorney recognized by those with whom he or she needs to do business.

Whether you are interested in drafting a power of attorney or if you need to resolve any legal issues related to a power of attorney, our estate planning attorneys can help.

Estate Planning Options

LEARN ABOUT ESTATE PLAN OPTIONS THAT CAN PROTECT YOU AND YOUR FAMILY

An effective estate plan can provide precise instructions about your final arrangements in case of incapacity or an untimely death. If you choose Richard Bartel, Esq. , you’ll get an estate planning attorney with experience who can draft and implement a comprehensive estate plan for you.

Having a solid estate plan in place can give you peace of mind knowing that your last wishes are in writing and that your loved ones will be cared for after you pass away. Your estate plan can also include provisions in the event that you are unable to speak for yourself due to injury or illness. By appointing someone you can trust to oversee your affairs, you will know you have taken the steps necessary to protect you and your family.

Some of the most common estate planning options that we recommend for our clients include:

Wills

A cornerstone of most estate plans is a last will and testament. A will allows you to state specifically how you want your estate to be distributed upon your passing, rather than leaving it up to the arbitrary dictates of New York State law. Additionally, a will can name a guardian for your children or a disabled adult that you care for.

Wills are normally required to pass through the process of probate. This process involves paying creditors and then distributing the remainder of your assets as dictated in your will. In some cases, the estate is small enough to avoid probate.

Trusts- Revocable

If you are concerned with helping your loved ones avoid the stress, expense and delays associated with probate and would like to keep your personal affairs private, you may benefit from creating a trust.

With a living trust, also known as an inter vivos trust, you can maintain control over the items that you place in the trust by naming yourself or another person whom you designate as the trustee. You can then name a successor trustee to assume control upon your passing or incapacitation. Anything that you place in the trust will no longer be legally part of your estate, meaning that it will not be subject to probate or estate taxes.

Advance Health Care Directives

An Advance Health Care Directive, also known as a Living Will, is an estate planning instrument that you can use to clearly state your preferences concerning the nature, scope and extent of medical treatment that you would or would not want to receive in the event of an incapacitating illness or injury. An Advance Health Care Directive is used only for answering questions concerning your medical treatment. You can, for example, voice your wishes regarding whether or not you would want to be placed on life-support equipment, whether or not you would like to donate your organs, what your burial or cremation preferences are, and other health care and death-related issues. The Advance Health Care Directive also allows you to choose someone to make health care decisions for you if you cannot make the decisions for yourself.

Hiring an experienced attorney can help you accomplish your desires regarding your health care decisions and advise you on the current laws.

Richard Bartel, Esq. can help you create a comprehensive Advance Health Care Directive and ensure your medical treatment goes as smoothly as possible.

Powers of Attorney

A power of attorney is a legal document that allows you to name another person to make financial decisions on your behalf. You can make the powers you give your agent as broad or as narrow as you want. Your agent may be able to conduct financial transactions on your behalf, sell your home, write checks, and pay your bills. You can specify when these powers are acquired, such as immediately after signing the document or only in the event that you become incapacitated.

Similarly, you can use a healthcare proxy to appoint an agent to make decisions about your medical treatment, such as a medical situation that is not addressed in your living will.

CONTACT RICHARD BARTEL, ESQ. TODAY

It is never too early to start planning for your future and protecting your family.

Estate & Probate Litigation

CHALLENGING AND DEFENDING CASES INVOLVING TRUST AND ESTATE ADMINISTRATION

Losing a loved one is difficult enough without the added stress of estate disputes. But sometimes, death has a way of bringing even more unpleasant things to light, and disgruntled family members may contest a will right after someone passes away.

Richard Bartel, Esq. has experience in the field of estate planning and probate.

If you are facing a legal dispute involving probate or the administration of a trust, we can provide the legal assistance you need during this challenging time.

Our goal is to protect you and your family, and we will work diligently to find the fastest and most cost-effective solution for such disputes.

Typically, we will attempt to reach a settlement out of court, but in cases where this is not possible, you can count on us to engage in adversarial litigation to protect your estate plan.

PROTECTING YOUR LOVED ONES’ INHERITANCE IN PROBATE LITIGATION

Probate litigation may arise when a beneficiary of a will or an heir contests the will. In some situations, the dispute centers on the belief that the decedent executed the will while not of sound mind due to illness, mental incapacity, or because someone exerted undue influence upon him or her.

Other common causes of probate disputes include:

Richard Bartel, Esq. represents parties on either side of the issue, whether you need to contest a will or if you have been appointed as estate administrator and need to defend against the claims of heirs or creditors. We are prepared to fight for your interests and present evidence to support your side of the claim.

PROTECTING YOUR INTERESTS IN TRUST LITIGATION

We also help clients who are in dispute regarding the administration of a trust. Trustees owe a fiduciary duty to the beneficiaries of a trust. If you are the beneficiary of a trust and are concerned that the trustee may not be acting properly or fulfilling his or her fiduciary duties, we can review the situation in order to determine whether you have grounds for legal action.

Common examples of situations that lead to trust litigation include:

Richard Bartel, Esq. is committed to helping families involved in often complex and emotionally taxing trust disputes to reach an agreeable solution and mitigate any unnecessary stress.

Due to recent medical advances, Americans are living longer now than ever before. For this reason, it is no longer uncommon for people to reach an age where they become both physically and mentally incapable of managing their affairs. Appointing a third party into a conservatorship role can help alleviate any concerns related to such circumstances.

A conservator is a person appointed by a judge to protect the interests of another person, usually an elderly adult or disabled individual. The conservator may manage only either or all of the living arrangements, financial, medical, and daily affairs of the individual, according to the provisions of the conservatorship.

WHY IS LITIGATION NECESSARY TO PURSUE CONSERVATORSHIP?

In the state of New York, the conservator relationship is determined by a judge. A person cannot step in and take over someone else’s financial affairs without a court order. There are three different types of conservatorships recognized by New York law:

• Conservatorship of the person
• Conservatorship of the estate
• Conservatorship of the person and estate

Although a spouse or other family member is often the person appointed as a conservator, this relationship is not a prerequisite in New York. A concerned individual can petition the court for conservatorship in which he or she sets out the reasons why a conservatorship is necessary. After the petition is filed, the court schedules a hearing. Notice of the proceedings must be given to certain individuals by law, and the conservatee (the elderly or incapacitated adult) or conservatee’s family may object to the appointment.

It is not uncommon for conservatees to be taken advantage of or fall victim to unscrupulous activities by their conservators. For these reasons, a conservatorship may be contested and require litigation.

The conservatorship may be contested if other family members strongly disagree that a certain person should be appointed as a conservator, or if they wish to remove an already existing conservator, especially if they suspect the elderly adult is being taken advantage of.

CONTACT A TRUST AND ESTATE LITIGATOR BEFORE IT IS TOO LATE

You only have a limited amount of time to file a claim. If the deadline passes, you will not have any recourse in the courts to settle your dispute. Failing to take action now can deprive you of your fair share of the estate. If you are being accused of mismanagement of probate or a trust, it is important that you seek legal help to help you avoid serious legal penalties.

Change Of Beneficiary

ESTABLISHING AMENDMENTS TO YOUR TRUST

Prudent clients will establish an estate plan as early as possible to protect their families and their wealth. However, unanticipated changes may arise years after establishing a will or trust. When such major life changes occur and you want to modify the terms of your trust Richard Bartel, Esq. can help.

It’s important to note that you should not make these changes to your trust yourself, because doing so could potentially invalidate the trust and make your property subject to intestate succession rules upon your death. Instead, let our lawyers make these changes for you to ensure all amendments are structured properly. We have comprehensive knowledge of estate planning and probate law, and we can help you navigate this legal process efficiently.

WHEN CAN I MAKE BENEFICIARY CHANGES?

Exactly when you can make beneficiary changes depends on the type of trust you have. For example, you can make changes to your beneficiaries if you have a revocable or inter vivos trust.

Revocable Trusts

New York Law allows you to make changes to a revocable trust at any time, following the trust’s procedure for revocation. Beneficiary changes may include the addition or removal of beneficiaries like family members, friends or charities.

Often, a major life change may trigger a removal, addition, or substitution of a beneficiary.

Some of the most common reasons for making changes of beneficiaries include:

• Marriage
• Divorce
• Birth of a child
• Death of a loved one
• Relationship with a beneficiary has become estranged
• Changes in the financial circumstances of the intended beneficiary

Whatever the reason you may want to amend your trust, Richard Bartel, Esq. is here to help.

Avoiding Probate

PROTECTING YOUR ASSETS FROM THE PROBATE PROCESS

Richard Bartel, Esq. understands that many people would like to mitigate the excessive time and costs that probate can cause their loved ones. Richard Bartel, Esq. has extensive experience and a comprehensive understanding of the steps that you can take to avoid probate. We work closely with our clients and may suggest avoiding probate through the following means.

AVOID PROBATE BY DESIGNATING DEATH BENEFICIARIES

There are options for transferring your assets upon death without subjecting them to probate, including designating death beneficiaries for some of your financial accounts. Through this method, you name a person who will receive the remaining funds in your account immediately upon your death.

This designation transfers ownership of the fund when you pass which means the asset is no longer part of your estate and is thus ineligible for probate. Through retirement accounts, you are also free to name whomever you want to inherit your account. However, if you are married, your spouse may have the inherent right to some or all of the funds in the account.

AVOID PROBATE BY ESTABLISHING A TRUST

A powerful way to remove much of your property from the probate estate is to put it in a trust. When property is in a trust, it is no longer part of your estate because the trust – not you – legally owns the property and therefore, the property is no longer subject to hefty estate tax. A trust also allows you to provide clear guidelines to your designated trustee about how you want your property managed.

AVOID PROBATE THROUGH JOINT OWNERSHIP

When you share ownership of your property, the right of survivorship outweighs probate law. When a joint owner of an asset passes away, the remaining owners automatically inherit his or her share. It is not possible for the joint owner to designate in a will that someone else receives his or her share of the property.

This typically requires a written document that establishes the joint ownership and the right to survivorship, which our probate lawyers can help you complete.

Joint ownership can be established through the following methods:

• Joint Tenancy with the Right of Survivorship – Upon the joint owner’s death, his or her portion is divided among the surviving owners.
• Joint Tenancy in Entirety – This form of ownership is only available to spouses. When a joint owner passes away, his or her interest is transferred to the survivor.