Category: Elder Law

Assisted Signatures: How to Execute a Document When the Client Needs Help Holding the Pen

Assume that we have a Client who is mentally sound but physically feeble and the following happens: The Client’s hand is guided as he places his name on the document and the person who guides his hand writes out the Client’s name in a manner that bears no resemblance to his customary “signature” from long ago. There is no issue as to the Client’s mental capacity — based upon the view of the witnesses present, it is his intention to sign. Is the signature valid?

What constitutes a “signature”?

The statutory definition of “signature” is found in New York General Construction[1] Law §46, which states:

The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.

Case law applying this statute make it clear that any mark is an acceptable form of signature[2] and that the key element of a “signature” for New York law is not the appearance or form of the writing or characters written or affixed, but rather the signer’s intent to sign.[3]

Similarly, the legal treatises discussing the subject echo this viewpoint. For example, the discussion in Corpus Juris Secundum emphasizes that the writing of one’s name by one’s self is not necessary for a valid signature and that any character, symbol or figure may be adopted as one’s signature. Of particular significance is Volume 80, Signatures, Section 6, addressing signatures “by the hand of another”:

Generally, a signature may be made by the hand of another, acting in the presence of such person, and at his direction, or request, or with his acquiescence… A signature so made becomes the signature of the person for whom it is made, and has the same validity as though written by him… Where a signature is made in this manner the person writing the name is regarded as a mere instrumentality, by which the person whose signature is written exercises his own discretion and acts for himself, and not through an agent. So a mark made for a person [by another person] at his direction may be regarded as his signature.

The writing of a name or the making of a mark by one other than the person whose signature the name or mark purports to be may constitute a sufficient signature of such person, where he touches the pen or pencil used in the process while the purported signature is being made, but the touching of the pen or pencil is not essential to the validity of the signature.

Applies to all kinds of documents

This analysis holds true for deeds, Wills, and other documents as well. For example, in Koo v. Robert Koo Wine & Liquor, Inc.[4], one brother signed the name of another brother on a deed; a lawsuit followed where the objectant to the deed alleged that the signing of the absent brother’s name was a forgery, particularly in the absence of written authorization to sign as agent. However, the Court held that since the brother had the authorization and consent of his brother, the signing of the absent brother’s name was not a forgery, was the signature of said absent brother, and constituted a valid signature for purposes of making a binding, lawful deed.

The policy that a “signature” includes any mark or symbol is also evident in the statutes governing execution of negotiable instruments, too. Uniform Commercial Code §3-410(2).

New York Estates, Powers and Trusts Law §3-2.1 discusses signatures and provides for guidance of a testator’s hand:

Valid signature may be by personally subscribing his name, or having a third person subscribe it for him at his request, or by having a third person guide his hand on writing. A Testator’s signature is sufficient and complies with law if, being physically unable to sign his name, he calls upon another to assist him even to the extent of holding and guiding his hand so long as it is his wish that his signature be thus made and he acquiesces in or adopts it.

Note that, contrary to common belief, the mere act of writing someone else’s name to a document is not forgery. All the forgery statutes state that a requisite element is the “intent to defraud, deceive, or injure” (emphasis added).[5] The tricky part, of course, is making sure you have enough evidence that the execution of the document was definitely the signer’s intent.

Conclusion

The document in our example was duly signed by the Client in that a mark or signature was affixed to the document in such a manner that it constituted the act of the Client. Specifically, the Client’s affixing an ink mark which, with the aid or assistance of another’s hand, wrote out the Client’s name, while he held or touched the pen or writing instrument and the other person’s hand steadied, guided, or assisted the Client, at the Client’s request and/or with his consent, constituted the signature of the Client and was lawful, valid and binding. Furthermore, the act does not constitute forgery — nor any other wrongdoing — particularly in the absence of a showing of fraudulent or deceptive intent.

Disclaimer: This article is based on NY law. It is for general information and is not legal advice nor the formation of an attorney-client relationship. Every situation is unique and you should not infer from the situations discussed, but must instead consult an attorney to discuss your particular situation.

Endnotes

1. The meaning of the word “Construction” here is how words are to be “construed” or interpreted as they relate to statutes.

2. See, e.g., In re Mark’s Will, 21 A.D.2d 205, 250 N.Y.S.2d 177 (1964).

3. See, e.g., People v. Mercado, 123 Misc. 2d 775, 474 N.Y.S.2d 950 (1984); People v. Lo Pinto, 27 A.D.2d 63, 275. N.Y.S.2d (1966).

4. 170 A.D.2d 360, 566 N.Y.S.2d 63 (1991) (signatory to writing transferring real property can, with requisite intent, adopt any mark or sign as his own signature, without resort to or need for written agency agreement).

5. New York Penal Law Article 170.

The Top 10 Medicaid Planning Mistakes

1. Thinking it’s too Late to Plan.

Even after a loved one has moved into a nursing home, steps can still be taken to protect assets. With nursing home costs as high as $7,000 a month, giving up on protecting your assets can be very costly.

Solution: Schedule a meeting with a qualified elder law attorney to discuss your situation and how to best protect your assets.

2. Giving Away Assets.

Adding a child’s name to the deed for a home or transferring cash or other assets is a far too common mistake. Under the new Medicaid gifting rules that went into effect in 2007, there is now a 5 year look back period for any gifts or asset transfers. Also, the giving away of assets can cause an extended period of ineligibility.

Solution: Before giving away any assets, be sure to discuss your situation with a qualified elder law attorney.

3. Believing the Gift Tax Exemption Applies to Medicaid.

Gifts of up to $12,000.00 are exempt from gift taxes. This gift tax exemption however does not apply to the Medicaid rules. ALL gifts, even birthday or Christmas gifts, or gifts to a church or other charity are subject to the 5 year look back period and will result in a period of ineligibility.

Solution: Once again, you should meet with a qualified attorney to ensure that you do not find yourself in a situation where you are ineligible for Medicaid benefits.

4. Failure to Take Advantage of the Spousal Protections. Congress has provided that a spouse still living in the community should not become impoverished by paying nursing home expenses.

Solution: When meeting with an elder law planning attorney, it is important to discuss what legal strategies can be used to protect assets for the community spouse.

5. Failing to Plan Ahead.

Far too many people fail to plan for the possibility of residing in a nursing home even after they are diagnosed with a debilitating disease such as Alzheimer’s or Dementia. With new Medicaid rule changes it is more important than ever to be prepared for the possibility of having to apply for Medicaid in advance.

Solution: Meet with a qualified elder law attorney to discuss what precautions you should take to ensure that you don’t lose Medicaid eligibility.

6. Failing to Prepare for Estate Recovery.

Estate Recovery allows the state to seek reimbursement for Medicaid expenses after your death. Now, whenever a family member is receiving Medicaid benefits it is critical that also take steps to avoid estate recovery.

Solution: Meet with an elder law attorney to discuss the best way to avoid estate recovery in your situation.

7. Filing a Medicaid Application too Early or too Late.

The proper timing of an application is very important. Since the average cost of a nursing home is over $7,000 per month, filing too early or too late can cost thousands of dollars.

Solution: Your Medicaid planning should only be done with the assistance of an attorney who has significant experience in assisting others with situations similar to yours. A Certified Elder Law Attorney (CELA) or a member of the National Academy of Elder Law Attorneys (NAELA) is often a good indication of his or her legal specialty.

8. Not Having a Suitable Power of Attorney.

In order to implement any Medicaid planning, it is often necessary to require a power of attorney because the nursing home resident is no longer competent to make any financial decisions. However, just any power of attorney will not suffice. It is critical that the power of attorney authorize the type of planning that may be necessary. This may involve drafting special trusts, surrendering or transferring assets, purchasing an annuity, etc.

Solution: When meeting with an elder law attorney, be sure to discuss the need for a suitable power of attorney.

9. Assuming the Nursing Home Staff Can Help With the Medicaid Application.

The nursing home staff is paid to take care of your loved one. They are not experts in the Medicaid rules. If you rely on their assistance you may end up costing you or your loved one thousands of dollars.

Solution: Make sure you seek expert help in filing a Medicaid Application by consulting a qualified elder law attorney.

10. Not Getting Expert Help.

Almost everyone knows someone who claims to know about Medicaid. However, with the Medicaid rules constantly changing the information they know is most likely outdated. Medicaid is a complicated area of law and it is best to consult someone who makes a living helping clients in this field. With so much at stake it would be foolish not to.

Solution: Don’t use advice from well intended friends and family members or information you read online as the basis of your Medicaid planning. Consult a qualified elder law attorney to make sure that you don’t make any costly mistakes.

Two Types of Relief For Parental Care / V.A. Pension / Medicaid ICP

Attempting to explain the nuances of Pension Aid & Attendance and the Florida Medicaid ICP program in this article is simply not practical. So the next few paragraphs will lay out the basic concepts. Once those concepts are understood, IT IS CRUCIAL THAT THE READER GAIN PROFESSIONAL HELP BEFORE IMPLEMENTING ASSET PROTECTION STRATEGIES.

Let’s start with the Veteran’s Administration Aid & Attendance benefit because when an elderly person can qualify for this benefit, it is common that it is the only benefit ever needed or is the benefit obtained and used immediately prior to needing the Medicaid ICP benefit.

Homebound and Aid & Attendance Veteran’s Benefits

It is crucial to understand that Aid & Attendance is a reimbursement program. This means that the V.A. will pay up to its maximum benefit to reimburse a veteran for all medical expenses. Therefore, before applying, money must be expended. So, if a family member or other individual is providing care, the veteran should be paying for the services in a way that the expense can be proven (cancelled check, cash not recommended). Obviously if the care is being provided by a commercial homemaker or home health care company, proof of payment will be available. Here is the real point of this paragraph; V.A. Aid & Attendance is a reimbursement program and NO benefits will be paid based on future expectations unless the same type of expenditures are already underway.

Next, it is extremely important to understand two things

    1. V.A. currently has no set rules for how much in assets a person can have and qualify for benefits. The rule of thumb is that a couple cannot have more than $80,000 and a single person cannot have more than $25,000. While O.K. as a rule of thumb, be careful about relying on these numbers as the older a person gets the lower these numbers go. The basic theory is that the V.A. will attempt to calculate how much money the applicant will need to make it to the end of life. Therefore, someone 90 will need less than someone 75.

 

  1. Currently there is no look-back period for gifts. Therefore, someone who gives away excess assets to children or to a properly drafted and selected irrevocable trust (knowledgeable attorney a must) today, can apply for benefits tomorrow without fear of disqualification due to the gift. However, it is absolutely imperative to understand that massive changes to this and other V.A. homebound and Aid & Attendance policies are underway and inevitable. Therefore, if a loved one who is a veteran and needs care, served a total of 90 days in the service, one day of which was during wartime (combat service not required), and did not have a dishonorable discharge, and they are receiving care, now is the time to pursue benefits. Now, not later.

The potential maximum benefit for a single veteran is $1,788, for a married veteran is $2,120, for a surviving spouse of a veteran $1,149, and for two married veteran’s $2,837.

Nursing Home and Assisted Living Medicaid

There are two primary concepts that must be understood when qualifying for Florida Medicaid Long Term Care benefits.

  1. There are three types of assets a) exempt b) countable c) non-countable
  2. The income of the applicant cannot exceed $2,199 in Florida

The whole process of “Medicaid Planning” focuses on reducing income below $2,199 and countable assets below $2,000 for an individual or below $119,220 for a couple. Income reduction is accomplished using a Qualified Income Cap Trust. Countable assets are generally reduced by a) gifting money and waiting five years to apply for Medicaid b) gifting money, applying for Medicaid, and then using gifted money to pay the nursing home bill until the ineligibility period created by the gift has expired c) exchanging countable assets for exempt or non-countable assets d) or some combination of the three strategies.

Once the above concepts are understood, planning can begin.

If you need assistance with V.A. benefits the person must be authorized to assist with an application by the Veteran’s Administration. This includes attorneys and non-attorneys alike. If you need assistance with a Medicaid application, a person of your choosing can assist but only an attorney can make initial strategy determinations, create a plan, and draft legal documents. An application specialty company is likely to be the most successful at plan implementation and expedited approvals.

Foreclosure Crisis Hits Oldest Americans Hardest

As everyone knows, the foreclosure crisis hit Americans of all backgrounds hard. And, regardless of all the talk about our supposed “recovery”, most people are still feeling the lingering effects of the Great Recession. Now, a new report by the American Association of Retired Persons Foundation entitled “Nightmare on Main Street: Older Americans and the Mortgage Market Crisis” reveals two disturbing trends: First, many Americans over 50 are either in foreclosure or in danger of ending up in foreclosure. Second, the foreclosure rate for Americans 75 and older has been higher than for most other groups of people over age 50.

This reverses the trend that had been established over the past decades where the majority of older Americans had paid off their mortgages by the time they reached retirement age and had a measure of security when it came to their homes and their equity. The past 20 years or so saw a reversal of those trends.

The study is the first of its kind, gauging the effects of the mortgage crisis on Americans age 50 and older for the years 2007 through 2011.

Among the report’s major findings:

  • 3.5 Million Americans age 50 and older are “underwater” (16% of loans).
  • 600,000 Americans age 50 and older are in foreclosure.
  • 625,000 Americans age 50 and older are 90 days or more delinquent on their mortgages.
  • 1.5 Million Americans age 50 and older lost their homes to foreclosure between 2007-2011.
  • Serious delinquency rates of borrowers age 50-64 and 75+ are higher than those of the 65-74 age group. People in the 75+ age group in particular are facing increasing mortgage and property tax expenditures and decreasing average incomes.
  • The increase in foreclosure rate was highest for those 75+.
  • Many people deplete their retirement and savings in an attempt to save their home. Older people face more challenges recovering from a foreclosure because they have fewer working years remaining in which to rebuild their finances; moreover, those who have lost their jobs face longer periods of unemployment, and when they do find a job, it is often at a lower salary than the one they had.
  • The presence of homes lost to foreclosure in a given neighborhood is associated with increases in anxiety and suicide attempts, hypertension, and physical complaints that could be stress related.

There are many choices when you fall behind on your mortgage, including:

  • Loan Modification – where the terms of your mortgage are re-negotiated so that your monthly payment becomes more manageable.
  • Short Sale – where the lender agrees to accept less than the full amount owed on your mortgage as full settlement.
  • Forbearance – where a payment arrangement is worked out for the amount of the arrears.
  • Deed in Lieu of Foreclosure – where the lender allows you to deliver a deed to the premises as settlement of your obligations under the mortgage.
  • Bankruptcy.

The one thing you should not do is procrastinate. Time is of the essence. Beware scammers who offer to help for a large up-front fee. Instead, use a government approved agency or a trusted lawyer.

How to Use Medicaid Planning to Fund Long Term Care

Until fairly recently, most people in need of long term care had few alternatives to entering a nursing home and wreaking havoc on family finances. Today, long term care can be obtained in various settings and we frequently help clients preserve assets and avoid impoverishing a spouse who remains at home. Yet, most people who need long term care eventually must turn to Medicaid for funding.

When first enacted with Medicare in 1965, Medicaid extended basic health care to poor people, especially children. Over the years, Congress has greatly expanded Medicaid, and it now also funds long term care in nursing homes, assisted living facilities, private homes, and other settings. While all Medicaid applicants must satisfy very restrictive financial criteria, not every Medicaid recipient will qualify for all benefits because each Medicaid program has its own eligibility criteria.

As Medicaid eligibility rules are byzantine and complex, it’s nearly impossible to do effective Medicaid planning without expert guidance. Thus, the uninitiated often spend everything on nursing home care, even though elder law attorneys can help most individuals protect part of their hard earned savings and still qualify for Medicaid to fund long term care.

Although federal rules set basic standards, states have substantial leeway to fine tune available Medicaid benefits and qualification requirements. Since Medicaid programs vary by state, Medicaid planning should be based on the law of the state in which an individual will receive long term care, and Medicaid recipients who change states must qualify anew. Therefore, as with wills and powers of attorney, Medicaid planning may require significant change when seniors move from Florida or other states to be closer to their children.

Depending on the kind and extent of impairments, individuals can receive long term care in many different environments. Still, most people either enter a nursing home or assisted living facility or receive care at home. Fortunately, Medicaid can fund each of these arrangements.

Care Options and Medicaid Coverage

Nursing homes have a poor popular image, probably due to their decidedly institutional look and feel. Unfortunately, however, they usually are the only option for people who need substantial assistance with many activities of daily living. Assisted living facilities are an intermediate step more akin to a senior citizen apartment building with dining, activities, and staff on site. Without question, assisted living facilities offer nicer amenities than nursing homes, but because only limited care is available, they usually won’t accept people who need substantial aid. As professional round the clock care is extremely expensive but Medicaid coverage is modest, home care usually works only when provided primarily by family with paid home health aides as supplements.

New Jersey Medicaid pays for long term care in nursing homes, assisted living facilities, and private homes, but not all states cover costs in each of these venues. Medicaid is divided into two broad categories: long term care and other care. Other care includes the usual diagnostics, preventive medicine, surgeries, and treatments that we all need from time to time. Long term care Medicaid covers nearly all nursing home costs, most assisted living facility charges, and some home health aide and other expenditures to help an individual remain in a private home. All Medicaid applicants must satisfy financial eligibility criteria, but persons who seek long term care Medicaid benefits also must demonstrate that they can’t live independently.

Medicaid Eligibility Requirements

To receive Medicaid, an individual who demonstrates a medical need for long term care must satisfy financial requirements. Medicaid may fund nursing home, assisted living, or at-home care when an applicant’s countable resources and income do not exceed modest resource and income limits. Countable income and resources are cash and other assets that are available to pay for food and shelter. Resources are amounts owned at the outset of a month while income is received during the month. Because Medicaid has few exemptions, receipts that wouldn’t be taxable income (e.g. gifts, Social Security, and tax exempt interest), security deposits, and jointly owned property generally are countable.

An unmarried person can qualify for Medicaid funded long term care by reducing countable resources to the applicable resource cap of up to a few thousand dollars. However, Medicaid planning is more complicated for married people because their combined countable resources are taken into account. When only one spouse needs care, an allowance of half combined countable resources up to a cap is allowed to the spouse in the community. This community spouse resource allowance (“CSRA”) is intended to protect the spouse at home from being impoverished, but in high cost states like New Jersey, Medicaid planning to protect savings is essential to afford a community spouse a reasonable standard of living. While the CSRA cap is adjusted for inflation, it is $109,560 as of Spring 2011.

Because couples typically must dissipate nearly all countable resources beyond the CSRA before Medicaid will pay nursing home charges, many people mistakenly believe that they must lose everything else when a loved one needs long term care. However, this merely illustrates the risks in acting on limited knowledge. Since excess countable resources need not be “spent down” only for long term care, we have many tools to help families preserve assets.

Medicaid Planning to Protect Savings

Despite popular misconceptions, Medicaid planning does not involve hiding assets, particularly since making a false Medicaid application is a serious crime. Rather, we help clients preserve savings by maximizing CSRA and spousal income allowances, converting excess countable resources into exempt items, spending down fruitfully, and minimizing penalties when making gifts.

Couples sometimes can increase a CSRA by borrowing (commercially or from loved ones) but the loan must be carefully timed and designed to be effective. Married Medicaid applicants also can preserve other resources as non-countable expenditures that benefit the community spouse. For instance, it can be beneficial to improve or buy a residence or vehicle for the community spouse.

Gifts often are a key element in Medicaid planning. While more can be saved by gifting early, Medicaid gift planning can prove useful even after entering a nursing home despite the sixty month gift look back period. However, the Deficit Reduction Act of 2005 substantially changed the Medicaid planning landscape to impose stiff penalties when gifts aren’t properly timed. Giving too much or applying for Medicaid too soon after gifting can needlessly trigger years of Medicaid disqualification. By the same token unduly small gifts may unnecessarily limit savings. No penalty results from qualifying gift to a disabled person or qualifying gift of a home to a caregiver child, but as with so many aspects of Medicaid planning expert advice is essential because technicalities abound.

To facilitate gift planning, a power of attorney that explicitly authorizes Medicaid gifts must be in place before a donor becomes mentally incapacitated. Otherwise a family will have to convince a guardianship court to authorize Medicaid gifts, which may prove difficult. Although a well designed Medicaid plan can preserve considerable amounts, everything can unravel if assets aren’t titled properly. Thus, it is crucial to ensure that wills, trusts, and beneficiary designations and default rules don’t cause distributions to a Medicaid beneficiary on death of a community spouse or other loved one. Similarly, addressing Medicaid estate recovery early can prevent substantial liens when a Medicaid recipient dies. Avoiding these traps for the unwary may require new deeds, account registrations, beneficiary designations, wills, and trusts.

Conclusion

No longer synonymous with nursing home entry, long term care can now be delivered in several other less institutional settings. Despite sky rocketing health care costs, elder law attorneys can help families obtain Medicaid to avoid financial ruin when a loved one needs long term care. However, because eligibility rules are complex and arcane with many traps for the unwary, effective Medicaid planning nearly always requires professional guidance.

© 2011 by Lawrence A. Friedman, Esq.

[This article originally appeared in New Jersey Lawyer Oct. 10, 2005, but the author has updated it to 2011.]

Should Old Senile Humans Be Allowed to Serve As Supreme Court Judges?

The other day, there was a Supreme Court justice on C-SPAN giving an interview. I felt completely bad for that Supreme Court Member because they hardly made any sense at all. Although they were semi-coherent, I am unconvinced that they knew what they were talking about. Perhaps their aides and interns are doing all the work, and they are just sticking to what they knew way back in the past, and sticking with the party lines. I have a problem with this. Why you ask?

Well, I’d like to explain it like this; we live in a very complex society, things are ever changing, and although the principles of the law may be the same, it’s very hard for me to justify the wisdom of a senile, or nearly so person deciding how I and my family will live in the future. There ought to be some sort of intellectual test each year for Supreme Court justices in the United States of America to continue their service. I know they are appointed for life, but I think we might need to change that. With such a new law introduced into our country – would it be abused?

Yes, it might be. There is always that risk however, I would say we are all under the potential harm of being damaged, all the citizens in the United States, if we are to continue this, keeping people alive on pharmaceuticals with their brains half wilted away. That might be very harsh, and I know that there was a lobby from one of the large retiree associations to prevent Florida from giving drivers tests to people over ninety years old. Therefore they just renewed the driver’s licenses for these folks. Unfortunately it is killing people, causing accidents, and it isn’t right.

We require ongoing education for licenses for real estate people, insurance brokers, financial planners, and all sorts of other professionals. We should do the same for lawyers, and Supreme Court justices. If the Supreme Court Members are exempt from this type of ongoing education and licensing, something that measures their competency, then one could ask if we are keeping these justices alive anyway we can for political reasons, until the next administration gets in to replace them. No, I’m not pointing fingers, not yet.

Remember, I am writing this article because I observed an interview with a member of the United States Supreme Court on C-SPAN, and I could not believe the words coming out of their mouth or the barely coherent replies during the interview. I can’t imagine these people engaged in a complex debate and dialogue deciding the future law that will determine the future of this great country. Please consider all this and think on it.

How To Prepare For Life’s Uncertainties

Life is full of uncertainties and as we get older these can become more pronounced especially when we could become potentially vulnerable through illness or an unpredicted change of circumstance. There are of course always actions that we can do and put in place that can help to protect us from those uncertainties that life can throw at us in particular as we get older. Most people are not sure where to turn to or who to ask for help in regards to this, but there is ample professional guidance available that can steer you towards giving yourself peace of mind on issues ranging from preserving your family wealth for future generations of your family to dealing with issues around your own longterm care or even a vulnerable family member.

1. Make Your Long Term Needs Secure

Many elderly people in the United Kingdom are experiencing reduced levels of income as a result of record levels of on-going low interest rates. People that maybe reaching retirement age could also find themselves in a situation where they need to capitalise on their assets in order to create an income. Selling such assets can be fraught with difficulties especially when you consider the poor economic situation. However, careful estate planning can help to mitigate some of the problems faced by people. No matter what your financial position or your net worth, estate planning remains a key to ensuring that your future needs are properly provided for and is vital in terms of preserving family wealth.

2. Review Your Situation Regularly

It is a fact of life that situations constantly change. People must be prepared to be flexible and make alterations in light of any changes. Creating an inventory of assets will help you put things into perspective. It is important to reflect on your current and future needs.

Also consider the following questions:

  1. How should your assets be owned in order to achieve the maximum benefit?
  2. What is the best way you can protect your assets from potential future claims?
  3. Who amongst your family and friends would you want to inherit your assets?
  4. Who would you want to handle your financial affairs if you ever became physically or mentally incapable of doing so yourself?

3. Have You Made A Will?

It is essential consider every aspect of your life and think seriously about every eventuality in life. A Will is a hugely important document and an essential part of estate planning. Without making a Will, it is difficult to control what will happen to your assets when you die. When a person dies without leaving a Will, it is normal for their spouse or civil partner to receive a fixed sum of money generally known as the statutory legacy. The amount the surviving spouse would receive can change over time and though any increase could be quite large, there is still a risk that your spouse may lose their home or you may unintentionally leave them with an overwhelming tax burden.

4. Aim To Lower Your Tax Bill

A lot of people unnecessarily pay too much tax. Therefore it is really important to consider ways to decrease personal tax bills. This can be achieved by maximising the use of available allowances, reliefs and exemptions and if necessary reorganise the way assets are owned.

5. Always Obtain Professional Advice

Seeking out and consulting with professional advisers is a vital way of making sure that you meet your current and future needs. Nobody’s circumstances are the same and so advice needs to be tailored accordingly. Remember, what is good advice for your friend or neighbour might not be good advice for you. Therefore, do not underestimate the value of taking proper professional advice, no matter what your circumstances.

A Social Security Disability Attorney May Be Necessary to Protect Your Rights

Consulting a Social Security disability attorney is a smart move for workers who’ve become incapacitated due to injury or illness and are no longer able to do their previous jobs. Applying for support is a five-step process that can be complicated and cumbersome. Having sound legal advice can help make the process less confusing for claimants and their families.

The claim should be filed as soon as possible after the accident, illness, or injury. The qualification process can take a year or more, and the sooner a claim is filed after the disability occurs, the better. It’s important to establish a timeline early on so that it’s clear that the incident or illness caused the disability. The applicant will need to prove that they are no longer able to perform the main duties of the previous job and that the disability prevents them from gaining meaningful work in another or related field. Information like doctor’s reports, an official job description, and specific details about the illness, injury, or accident can help establish the validity of a claim. All of this information will be useful during the initial application process and interview.

The application will be reviewed, and the Social Security office will determine:

– Whether the applicant is able to complete his or her former job functions.

– How the work the applicant did compares to how the job is done nationally and whether the applicant can complete the same job in a different way.

– How the injury or illness has affected the applicant’s ability to do his or her job effectively.

– Whether the applicant can be trained to do a different job.

In order to determine the answers to these questions, the office will look over medical records, laboratory test results, and other information provided. A Social Security disability attorney can help the applicant understand what is necessary. It’s important to turn all forms and information in on time. The applicant is responsible for ensuring the disability office gets all the information it needs to make a determination.

Once the application is accepted, an interview will take place, either by phone or in person. The application process can take three to five months. It’s an arduous process, but a necessary one if one is disabled and unable to work. Once the application has been fully processed, the office will make a determination based on whether the applicant’s condition matches one on an existing list of disabilities, and the individual’s ability to work, either in the previous job or in another job.

Seventy percent of claims are denied, which is why it’s important to have an experienced Social Security disability attorney on hand to answer questions and help with the appeals process. Once the claim has been denied, the applicant can file an appeal, either online or by mail. New and updated information from doctors, physical therapists, and others may be helpful when filing an appeal. A Social Security disability attorney can advise claimants on the proper steps to take and documentation to provide when appealing a denial.

Why You Need a Will: Common Scenarios That May Surprise You

Here are some common scenarios where people die without Wills — the outcomes may surprise you:

Scenario 1: A husband dies, survived by his wife and three young children. The wife feels assured that she inherits all of her husband’s assets. She is wrong. The children inherit a significant fraction of the assets, and because they are minors, they will need a guardian and Court involvement is likely.

How a Will could help: The husband could specify in his Will that the assets pass to his wife (not his kids); if he does want to leave assets to his kids, he could set up a trust for minors and specify a trustee.

Scenario 2: A husband and wife both die in a car accident, leaving three young children. Who gets custody of the kids? The kids could temporarily end up in foster care until a guardian is appointed in a Court process that could take many weeks.

How a Will could help: The couple could have had a paragraph in their Wills specifying who would care for their kids in case they both died. They could even specify one person to take care of the children’s “person” (where they live, how they are raised) and another to take care of their “property” (the assets left to them)… since people vary in what they are good at.

Scenario 3: A widow has a child with special needs. When she dies, her assets pass to her child, thereby disqualifying the child for government benefits. The assets have to be used up before the child re-qualifies for benefits. The assets that the widow worked so hard to preserve for her child are lost — they will pay for care that would otherwise have been paid by government benefits.

How a Will could help: The widow could create a Supplemental Needs Trust within her Will. Putting the assets into this trust would protect them for the child, who would thereby still qualify for government benefits. The assets earmarked for the child could not only be available to make the child’s life better, but in addition they could pass to friends or other relatives upon the child’s death.

Scenario 4: A couple marries — it is the second marriage for each of them, and each has children from their prior marriage. The couple holds all their assets “Jointly With Right Of Survivorship”, thinking that this is the best way to hold their assets. After all, they reason, that way upon the death of either one of them their assets will automatically pass to the survivor. When the husband dies, however, all his assets pass to the wife; then, upon her death, all the assets pass to her children (none to his!). This is an unfortunate outcome that we see all too often with people who have not come to us (or someone like us) to help them with their planning.

How a Will could help: A Will, particularly one with a trust, could have protected a significant portion of the husband’s assets for his own children. The wife similarly could have preserved her assets for her own children. You can have unintended outcomes without proper planning even if no one is being mean or stingy or deceptive (though sometimes meanness, stinginess, and deception may be involved). In situations involving second marriages and children from prior marriages, planning focusing on the form of ownership, the creation of trusts, and other planning tools, is essential.

Scenario 5: You have no close relatives and your assets “escheat” to the State.

How a Will could help: You can designate friends and charities to inherit your assets.

Scenario 6: The order in which you and your family die causes your assets to pass to the relative… or in-law… you hate the most.

How a Will could help: You can control who gets your assets after your death.

These typical scenarios highlight issues we see every day in the people who come to see us after the fact — often when it is too late to do anything to remedy the situation. These scenarios also highlight how a Will can often offer a relatively simple solution to avoid these problems. A Will can be a highly useful tool, along with other planning, to ensure that your wishes are given effect, the people you trust have the authority to carry them out, and your loved ones are taken care of, thereby giving you peace of mind.

_____________________

Disclaimer: This article is based on NY Law. Estate planning and Will drafting are complex processes that should only be undertaken with the assistance of an attorney knowledgeable in these fields. These examples have been presented in a simplified manner for clarity; many things, including subtle variations in the facts, could affect the outcome, and other tools — prenuptial or business agreements, trusts, etc. — may be advisable in conjunction with or even instead of a Will. The foregoing examples should not be used to infer possible solutions to your situation, nor should it be viewed as legal, financial or tax advice. You should consult with an attorney (and possibly other professionals such as an accountant, insurance professional, financial adviser, tax specialist) to discuss your particular situation.