Top Mistakes in Estate Planning

Estate planning is a crucial process that can have a significant impact on the financial well-being of loved ones. It helps ensure that hard-earned assets are distributed in accordance with personal wishes, while also minimizing tax liabilities. Even for young adults, estate planning can provide peace of mind and ensure that their assets will be distributed as they desire in the event of unexpected illness, accidents, or death. By engaging in this process, individuals can take steps to secure their financial future and address potential risks. While every state has its own unique laws and regulations, navigating the estate planning process in New York can be particularly challenging. 

New York’s complex legal landscape, coupled with its constantly evolving tax laws, can create a minefield of potential mistakes for those seeking to plan their estates. In this guide, we will delve into the top mistakes in estate planning in New York, highlighting the common pitfalls and offering experienced advice on how to avoid them. It is critical to consider the assistance of a skilled New York estate planning lawyer to ensure that your plan is tailored to your unique circumstances, while effectively navigating the complexities of New York law.

At New York Legacy Lawyers, attorney Yana Feldman and our team of skilled estate planning lawyers may be able to help you build a secure future for you and your loved ones. Contact us today at (718) 713-8080 to schedule a consultation.

1. Procrastinating on Estate Planning

Many individuals, including my own friends and family members, often procrastinate on estate planning. However, it’s important to remember that unexpected events, such as illness, accidents, or death, can occur at any time. This is why it’s crucial for everyone over the age of 18 to have basic documents in place, such as a Power of Attorney and Health Care Directives.

For those with assets, it’s essential to consider what would happen in the event of incapacity or death. Who would have control over or inherit these assets? Are there any individuals that you would like to exclude? Estate planning can help answer these questions and ensure that your wishes are carried out. In some cases, basic documents such as advanced directives and beneficiary check-ins may be sufficient. In other cases, a will or trust may be necessary.

It’s also important for older individuals, even those in good health, to consider how they would pay for the costs of long-term care. By engaging in estate planning, individuals can gain peace of mind and ensure that their assets and future care are protected. Therefore, procrastinating in estate planning can have severe consequences, and it’s crucial to address this important aspect of financial planning as soon as possible.

2. Not Exploring Your Estate Planning Options

While a will is vital, there may be other estate planning tools that can be viable for your circumstances. Failing to explore other tools can lead to pitfalls like estate taxes that trusts can help minimize. A will doesn’t address incapacity, but living trusts and durable powers of attorney can. Probate is a pitfall, but trusts can help avoid it. A will doesn’t protect assets from creditors, but irrevocable trusts can. Special needs trusts can support family members with special needs without affecting their eligibility for government benefits. Consulting an estate planning attorney can help create a comprehensive estate plan that suits individual goals and needs.

3. Avoiding Disability And Long-term Care Planning

When it comes to long-term care planning, many individuals overlook the possibility of incapacity due to illness or injury. In such a scenario, a person’s loved ones may become involved in costly and time-consuming court proceedings, with a judge who has never met the person making decisions regarding their future. These decisions may not align with the person’s preferences or values, and a stranger could be appointed as their guardian instead of trusted family members and friends.

To avoid the potential pitfalls of guardianship, it is advisable to appoint an Agent under a Power of Attorney, a Health Care Proxy, and possibly a Trustee to make decisions and manage assets in accordance with the individual’s values and lifestyle. Doing so can help prevent delay, confusion, and undue expense, as well as ensure that the individual’s wishes are carried out. Thus, in the context of long-term care planning, it is essential to consider the possibility of incapacity and take steps to avoid the need for guardianship.

4. Avoiding Discussions with Family and Friends

Many people don’t want to talk about estate planning, because it is talking about illness and death. Many people think it is somehow “jinxing” them or tempting fate by making plans for disability or death.

However, it is important to let the people around you know what your wishes are. Even if you do make plans, if they aren’t what people would expect, it might make sense to let some people know about them so they aren’t disappointed or surprised. It also can help alleviate a lot of stress and worry from children and grandchildren about how they will help their aging parents and grandparents. It is also a great way to share your values and hopes for your loved ones in the future.

5. Not Planning for Your Children’s Futures

As a parent myself, I understand the importance of planning for the future of our children. Some parents may feel that estate planning is not necessary if they have not amassed a significant amount of wealth, but as a parent, I know our children are our greatest wealth. I want to have a say in who would care for them if I weren’t able to do so due to death or disability. Appointing guardians and creating a trust for children can be quite straightforward. Many of my clients fund these trusts with the proceeds of term life insurance, which is very reasonably priced for most people, even if they don’t have a lot of accumulated wealth.

The hardest part of estate planning to protect children is usually choosing who these guardians and trustees will be. One tip: there is usually no perfect choice. Make the best choice you have, know you can always change it in the future, and that it is still better than kids ending up in foster care or with someone you would rather avoid.

6. Forgetting to Coordinate and Review Beneficiaries

Remember, a beneficiary designation trumps a will or a marriage. If you have named a sibling or a parent on a life insurance policy or any other asset, they will inherit it, even if you are now married or have a will that leaves your assets to another person. It is important to make sure that your estate plan aligns your wishes and your estate planning instruments with the beneficiary designations on your accounts. I have seen countless examples where a former girlfriend/boyfriend or sibling/parent inherits instead of a spouse or child, with little recourse.

7. Wrong Choice of Agent/Trustee

Choosing an agent under a Power of Attorney, an Executor or a Trustee is hard! But these decisions need to be made taking into account a number of factors. Of course, family dynamics are important, which is why a frank and open discussion with your estate planning attorney is so important. Financial sophistication may not need to be the most important factor as long as the person is honest, trustworthy, sensible, and can seek out and follow competent advice from trusted professionals.

8. Not Updating/Reviewing Your Plan Regularly

You marry, have children, divorce, and people in your life pass away. You buy and sell real estate, open and close businesses, and change the direction of your career trajectory. Life changes. Laws change. Estate plans can easily become outdated, so it’s essential to review your plan regularly

9. Relying on a DIY Estate Plan

Many estate planning and estate administration attorneys joke that LegalZoom and similar websites create more work for us than they take away. While it is certainly possible to create an estate plan on your own for no or low cost, it can cost your family a LOT more than you choosing to work with a competent estate planning attorney. 

Estate planning attorneys become intimately acquainted with your particular set of circumstances and while many plans are similar, most have some important tweaks to account for what matters to you! Maybe it is avoiding probate, providing for a loved one with special needs, or planning for long-term care. Is estate tax a consideration? Do you have all the right information? Many of the DIY plans don’t ask all the right questions. For example, I’ve seen NY wills name a foreign national who lives abroad as an executor, which simply isn’t allowed in NY.

In short, it is almost always worthwhile to have a conversation with an estate planning attorney about what their suggestions might be and what issues they can identify in your specific situation. You want someone who you feel comfortable talking to, so you can be completely open and candid. You want someone who you feel you can come back to with questions and changes over the years. And of course, you want someone who can appropriately address your particular concerns.

10. Failing To Incorporate Your Digital Assets Into Your Plan

The use of digital assets has become an essential part of our lives, yet many people do not consider including them in their estate planning. Neglecting to include digital assets in estate plans can lead to the loss of valuable information, delays in accessing them, risk of identity theft, and inability to distribute them according to a person’s wishes. To avoid these pitfalls, individuals should create a comprehensive inventory of their digital assets, appoint a trusted executor, specify how the digital assets should be distributed, and ensure that all necessary legal documents are in place to authorize access to online accounts.

Beneficiary Blunders

One of the most common mistakes individuals make in estate planning is not designating a contingent beneficiary for retirement accounts and insurance policies. They often overlook the necessity to regularly review and update their beneficiary designations. This oversight can lead to the unintended default beneficiary becoming their estate, which then becomes entangled in probate, exposed to creditors, and subject to unnecessary delays.

The absence of a contingent beneficiary is particularly detrimental when it comes to IRAs, as it eliminates the possibility of a ‘stretch IRA’. A stretch IRA is a significant tax deferment strategy that allows beneficiaries to extend the distribution of inherited IRA assets over their own life expectancies, thereby minimizing taxes and potentially augmenting the income they receive over their lifetimes. Since an estate has no life expectancy, it cannot take advantage of this tax-efficient distribution method.

Furthermore, individuals often forget to remove former spouses from their IRA beneficiary designations following a divorce. This oversight can have catastrophic consequences for their current spouse and family. It’s important to note that while retirement plans automatically assign the new spouse as a beneficiary upon marriage, IRAs do not follow the same rule. If one wishes to name someone other than their current spouse as the beneficiary of a retirement plan, they must obtain the spouse’s consent. A prenuptial agreement holds no power in this scenario, as only a spouse can waive beneficiary rights, and a fiancée has yet to attain that status.

If you’re considering estate planning, it’s essential to avoid common mistakes that can have significant legal and financial consequences. At New York Legacy Lawyers, attorney Yana Feldman and our team of skilled estate planning lawyers can help you navigate the complex legal landscape of estate planning in New York and avoid common pitfalls.

We can help you better understand the estate planning process and assess your unique circumstances. Our attorneys have dedicated their careers and work diligently to help individuals and families plan for their future, protect their assets, and minimize tax liabilities.

Don’t wait until it’s too late. Schedule a consultation with us today by calling (718) 713-8080 or contact us at our website. Our experienced attorneys can help you create a secure future for yourself and your loved ones.

Top Mistakes in Estate Planning	Description	Action
Waiting to plan	Delaying estate planning can result in unexpected events such as accidents, illness, or death.	Have basic estate planning documents in place and consider what would happen if you became incapacitated or passed away.
Avoiding living probate	Not considering who would make decisions for you if you became incapacitated due to illness or an accident.	Appoint an Agent under a Power of Attorney, a Health Care Proxy, and possibly a Trustee to avoid undesirable consequences.
Steering clear of discussions with loved ones	Not wanting to talk about estate planning due to it being related to illness and death.	Share your values and hopes with your loved ones to alleviate stress and worry.
Putting your kids in the hands of child care services	Not considering estate planning because of a lack of wealth.	Appoint guardians and create a trust for children.
Forgetting to change beneficiaries	Not aligning your estate plan with the beneficiary designations on your accounts.	Ensure your estate plan aligns with your wishes and beneficiary designations on your accounts.
Choosing the wrong people	Choosing the wrong person as an agent under a Power of Attorney, Executor, or Trustee.	Consider family dynamics and financial sophistication when choosing.
Failing to review your plan regularly	Not reviewing your estate plan as life and laws change.	Regularly review your plan to keep it updated.
Creating a “do-it-yourself” estate plan	Trying to create an estate plan on your own without considering specific circumstances.	Consult a competent estate planning attorney to address your particular concerns.

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Do I Need to Hire an Estate Planning Attorney?

Estate planning is a critical process that involves making important decisions about the management and distribution of your assets after your passing. While some individuals may attempt to handle estate planning on their own, navigating the complexities of legal documents, tax implications, and ensuring the fulfillment of your wishes can be overwhelming. This begs the question: Do you need to hire an estate planning attorney? In this article, we will explore the key considerations involved in estate planning and shed light on the valuable role a New York estate planning attorney can play in helping you navigate this intricate process.

A New York estate planning attorney can guide you throughout the estate planning process. At New York Legacy Lawyers, our team of New York estate planning attorneys may be able to help you explore various estate planning strategies, such as establishing trusts to minimize taxes and protect your assets, or setting up powers of attorney and healthcare directives to ensure your wishes are respected in the event of incapacity. With the help of our team, you can have peace of mind, knowing that your affairs are in order and your loved ones will be taken care of according to your wishes. Call us today at (718) 713-8080 to schedule a consultation.

What an Estate Planning Attorney Does

An estate planning attorney doesn’t only set up your last will and testament, they also set up power of attorney, name your beneficiaries for your assets, and ensure that your wishes are followed. 

They also set up documents that will protect you if you become incapacitated.  Moreover, an estate planning attorney will develop documents that will ensure your children go to someone you trust, if for some reason you’re not around due to unforeseen circumstances (injury, death, etc).

Estate Plans Must Follow State Laws

Some people think that printing off estate plan forms from the internet will suffice.  Unfortunately, there is no guarantee that the forms you print and fill out are legally binding.  This means that even though you think your best friend and favorite charity are going to receive some of your assets when you die they may not receive anything if your forms are not legally binding. 

The worst case scenario here, if your forms do not follow your state laws, a judge will determine how your estate is divided and split up.  This could cause a lot of pain, stress, and fighting amongst your family members.  Not to mention, your estate will be stuck paying for probate court to figure everything out.

Honestly, if you have children, you do not want a judge to determine to whom they go to if you and your spouse both die.  Or who should get your favorite grandfather clock. Or who gets the keys to Dad’s car.  Or, or, or…

Having the correct legal documents are super important! 

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What is the Purpose of Making an Estate Plan?

Estate planning serves a critical function in managing one’s affairs after death. Its primary purpose is to ensure your assets are distributed according to your wishes, thus avoiding the complications and delays of legal limbo that can burden your family. An estate plan gives you control over who inherits your property and assets, rather than leaving these decisions to state laws.

Moreover, a well-crafted estate plan can significantly reduce the financial strain on your heirs by minimizing potential income, gift, and estate taxes. By delineating your wishes through legal documents, such as a will or trust, you can provide clear instructions on asset distribution, which helps prevent disputes among family members and can expedite the inheritance process.

In the absence of an estate plan, state laws and courts take over. This means that without a will, you lose control over who receives your belongings, and the court system could determine the guardianship of your children. Estate planning is not solely about assets; it is also about ensuring that your family is cared for according to your preferences.

In essence, the purpose of making an estate plan is to protect your legacy, provide for your loved ones, and preempt unnecessary legal hurdles and taxes. It is a proactive step to maintain control over your personal and financial matters, ensuring peace of mind for both you and your beneficiaries.

Complex Family or Financial Situations

If you have a complicated family makeup or complex financial situations, doing a DIY (do it yourself) estate plan is a bad idea.  The more complex your situation, the more imperative it is to use a qualified estate planning attorney.

Complex family and financial situations include:

• second (or later) marriage
• own one or more businesses
• own real estate in more than one state
• have a disabled family member
• have minor children
• have problem children
• Do not have any children
• want to leave some or all of your estate to charity
• have substantial assets in 401(k)s and/or IRAs
• were recently divorced
• recently lost a spouse or other family member
• have a taxable estate for federal and/or state estate tax purposes

Estate Planning for Blended Families

When it comes to estate planning for blended families, it is crucial to consider the dynamics of each family relationship. In these situations, concerns often arise regarding inheritance size, executor appointment, and overall fairness. Creating an effective estate plan requires addressing these concerns. Here are some common estate planning options for blended families that can provide guidance:

• Family Trusts: This type of testamentary trust involves consolidating all assets into a combined trust after the first spouse’s death. The advantage of this structure is that the surviving parent can distribute assets based on the individual needs of each child.
• Marital Trusts: A marital trust allows assets to pass to the surviving spouse while also setting aside any remaining assets for the children after the surviving spouse’s passing. This approach enables both spouses to create a plan that includes all children in the family.
• Outright Ownership: With this estate planning structure, all assets transfer directly to the surviving spouse without involving a trust for the children. While relatively simple, this approach relies on the trust between spouses that the surviving spouse will appropriately account for the children’s inheritance.
• Immediate Bequests: Another option, not involving trusts, is to leave specific assets to each child within your will. Although discussing this choice with your spouse can be sensitive, it can be the best option when you want your child to directly inherit certain items.

Estate Planning Options for Blended Families	Description
Family Trusts	Consolidating assets into a combined trust after the first spouse’s death
Marital Trusts	Assets pass to surviving spouse, with remaining assets set aside for children after the surviving spouse’s passing
Outright Ownership	Assets transfer directly to surviving spouse without involving a trust for the children
Immediate Bequests	Leaving specific assets to each child within the will, without involving trusts

In a first marriage, estate planning is typically straightforward, with everything usually going to the surviving spouse and then to any children. However, in the case of blended families, more individuals may have a claim on property, and each spouse may have specific wishes regarding distribution. Failing to establish the right estate plan can lead to various problems, including:

• Disinheritance of Children: If a partner in a second marriage passes away without a will, their property automatically goes to the surviving spouse. When the surviving spouse also dies without a will, the property then passes to their own children, potentially disinheriting the children from the first marriage. Proper planning is necessary to ensure that your children from the first marriage inherit specific assets.
• Delayed Inheritance for Children: Even if you have specified that your children should inherit certain property, without the appropriate estate planning documents, they may have to wait until your spouse’s passing before they can receive their inheritance.
• Claims from Former Spouses: If you have not removed your first spouse as a named beneficiary on insurance policies or retirement accounts, they may still inherit these assets, regardless of remarriage or children. Smart estate planning can prevent your former spouse from making claims on your property.
• Disputes over Authority and Responsibility: In the event of your demise without making plans for this possibility, remarriage and the presence of children from a previous marriage can lead to contentious disputes over custody and legal decision-making for your minor children.

By implementing the right estate planning tools, all these potential problems can be avoided, ensuring a smoother transition of assets and minimizing conflicts within blended families.

Finding an Estate Planning Attorney in Brooklyn Or Anywhere Else…

Finding an estate planning attorney may seem overwhelming at first but there are websites such as FindLaw and AVVO that find attorneys for you.  You can also just type in “estate planning attorney near me” into your favorite search engine such as Google.

Of course, you’re already here as well and that’s what we specialize in, estate planning for people like you!  If you would like help setting up a new estate plan or revise an existing one, contact us today at (718) 713-8080  We would love to help!

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How You Can Use Estate Planning as A Gift

What happens to all your belongings when you die? Where will your finances go? Who will be in charge of carrying out your last wishes, and who will take care of you before you pass away? 

Estate planning is a gift. Consider this, you have already taken the effort and invested significant time to meet with an estate planning professional, so your family doesn’t have to. Why did you make this effort?

The reason you made the effort is that establishing an estate plan has the potential to resolve future conflicts and disorientation that your family may experience upon your departure. Estate Planning is a loving gift that you will give to reduce the emotional stress that is attached to your passing and it will provide direction for how your family will need to move on following your death.  

In this article, we provide an overview of the essential elements of an estate plan, emphasizing the importance of taking action now to protect your family’s future. At New York Legacy Lawyers, our experienced New York estate planning attorneys are available to offer guidance and support as you begin the process of creating or updating your will and estate plan. To learn more about how we can assist you, please call (718) 713-8080 to schedule a consultation.

A WILL IS A GLUE HOLDING IT ALL TOGETHER

The concept of a last will & testament, or transfer of property after death has been around as long as humans have. In many places, the method of transfer is primarily defined through existing cultural norms. In the US and Brooklyn, however, we use estate law to clear things up a bit more formally. 

Fundamentally, your will entails where you wish your possessions, assets, minor children, and more to go when you pass away. Additionally, it will state who will be in charge of distributing those assets and managing any other affairs in your passing or incapacity. 

Legal requirements in setting up a will can be intensely specific, but only because ambiguity leads to conflict, especially after a loved one has passed. It is critical that you seek the assistance of an attorney or an estate planning expert to make sure that your will gets drafted correctly.

JOINT OWNERSHIP AS AN ESTATE PLANNING OPTION

Joint ownership means owning your assets jointly with someone else like a spouse, child, or a close relative. The purpose of Joint ownership is to make sure that when you die, those assets go to your spouse or heirs smoothly because they are already owners of the assets.  To head off more complicated issues and to make sure joint-owners can access all assets, beneficiary designations are helpful.

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SETUP BENEFICIARY DESIGNATIONS ON INTANGIBLE ASSETS

A Beneficiary Designation on your bank accounts, your stocks, and brokerage accounts may be needed to facilitate the transfer of those assets to a joint owner, or another designee. Various kinds of Beneficiary Designations can be acquired through a bank or other financial institutions. Some of these designations are known as “transfer on death,” “pay on death,” or “in trust for account.”  

The person or beneficiary that you place on those accounts is not an owner of the accounts, presently. If they have any financial problems before you designate them as a beneficiary on your accounts, their financial issues will not become your problems, and that is a beautiful benefit.  When you pass away though, they will gain access to and ownership of the assets within the accounts, however.

A PRIMER ON PROBATE

Probate is the legal process in which a will is proved or tested in a court. Many people find the Probate Process frustrating. When a will is contested, there may be many parties involved in the process.  And if a lawyer is involved, there is a cost component…on top of the cost of probate itself. 

The purpose of the probate process is to have the will accepted as a valid public document that is the true and last living testament of the estate of a deceased person. Probate is the first step in the legal process that is needed to name the Executor of the estate. This step is essential because the Executor needs to be granted the authority to distribute assets according to the will of the deceased loved one. 

If you have questions about probate, please contact us.

WHEN YOU SHOULD CONSIDER A TRUST?

You should consider using a trust if the value of your estate is such that your family might lose a significant amount of your assets in probate or estate taxes. You might also want to consider a trust if you have special needs, like a family member who requires extra care, or a child you’re concerned will not be ready to manage the assets you intend to leave them. In truth, there are a lot of reasons to consider a trust, and many different forms of trust you might consider.

When you set up a trust you actively move assets from your possession to the trust. Usually, you are the beneficiary of that trust while you are still alive, and upon death or another circumstance of your definition – the beneficiary changes. 

A trust will sometimes feel scary because you may feel that you could be giving up your assets to a bank or other entity that you have no control over. However, you will make the decisions about how to place money in or withdraw assets out of the trust. Functionally, it shouldn’t interfere too drastically with how you manage your estate now – but when you pass away, it will make a huge difference in how your assets transfer to your loved ones.

Is Money Gifted From A Trust Taxable?

Understanding the tax implications of receiving money from a trust is essential for beneficiaries. The taxability of money gifted from a trust depends on the nature of the distribution. Trust distributions are typically classified into two categories: income distributions and principal distributions.

Income distributions are amounts paid out from the trust’s earnings, such as interest or dividends. These distributions are typically taxable to the beneficiary. The trust is required to provide the beneficiary with a Schedule K-1 form, which details the amount of the distribution that is considered taxable income.

Principal distributions, on the other hand, are distributions of assets that have been placed into the trust after tax payments and are not taxable to the beneficiary, since these assets were already taxed prior to their contribution to the trust. Therefore, beneficiaries receiving principal distributions are not obligated to pay taxes on these amounts.

However, it’s essential to be aware of the type of trust involved. The taxation rules can vary depending on whether the trust is revocable or irrevocable. Typically, money gifted from a trust’s principal is not taxable for the beneficiary, while money distributed from the trust’s income is taxable.

For a comprehensive understanding of your tax obligations, it is recommended to consult with a New York estate planning attorney from New York Legacy Lawyers. Contact us for personalized information tailored to your individual circumstances and the current tax laws.

When is a Gift Not a Gift

While we often say that the sentiment matters most in gift-giving, the IRS emphasizes that there’s more to it. In specific situations, a gift means more than just kindness; it holds tax implications, prompting the question: “When does a gift cease to be just a gift?”

In 2023, the annual gift tax exclusion is set at $17,000 per recipient or $34,000 for married couples sharing gifts. This means you can give up to these amounts without facing gift tax. However, if your total gifts surpass this threshold, the surplus is no longer seen as a ‘gift’ under tax law – it becomes taxable.

The lifetime limit for tax-free gifts, whether given during one’s life or left after passing, is $12.92 million for an individual, or $25.84 million for a married couple. These figures also apply to the Federal Generation-Skipping Transfer (GST) tax exemption in 2023.

New York residents are exempt from state gift tax. Yet, if you’re considering substantial lifetime gifts, knowing your state’s tax regulations is vital.

For US-citizen couples, there’s an unrestricted marital deduction for gift and estate tax purposes. This means limitless transfers can be made to a US citizen spouse during life or after passing, and the gift retains its nature. However, gifts to non-citizen spouses are subject to a $175,000 marital deduction in 2023.

Understanding these tax rules ensures your gift remains a genuine expression of goodwill and generosity, rather than inadvertently becoming a taxable matter.

DRAFT A LIVING WILL & DESIGNATE A HEALTHCARE PROXY

A living will typically accompany a healthcare proxy. However, these are two different documents. A Living will is simply a statement signed by you. It states how you wish to be cared for in case you become unconscious or you are in another situation in which you cannot make decisions for your care on your own.  

A healthcare proxy can be established when you appoint an individual to make healthcare decisions for you. In some places, this is called a healthcare power of attorney. Having this document in place will assist your family members and or loved ones if you become incapacitated. Moreover, this document will prevent courts or hospitals from becoming the primary decision-makers regarding your care.

YOUR ESTATE PLAN AND LIFE EVENTS

It’s crucial to keep your estate plan updated in the event of significant changes in your finances, health, family, or relationship status. In the event of your sudden passing, your will and estate planning documents may not reflect your current circumstances.

To ensure that your heirs are not held to the outdated provisions of your will, you should make immediate changes to your estate planning documents after any of the following life events:

Death: In the event that a family member who was designated to manage your estate passes away, it will be necessary to choose an alternate executor, trustee, or guardian to take their place.

New Addition: An addition to your family, such as the birth or adoption of a new child or grandchild, or the responsibility of caring for an ill adult can have an impact on your estate plan.

Health Crisis: If you or your spouse has been diagnosed with an illness, or disability, or requires nursing care, it’s recommended to update your will as soon as possible.

Milestone Birthday: Turning 18 or graduating from high school, may prompt you to consider providing financial assistance to a child or grandchild for their education.

Marriage: You may need to review and update your estate plan to include provisions for your new spouse’s inheritance and any future children. Additionally, you may need to revise any provisions you made for a former spouse.

Divorce: It may be necessary to revise your estate plan and remove your former spouse as an executor or beneficiary.

Significant Purchase: Buying a home, obtaining life insurance or investment, or borrowing a substantial amount of money, can cause disputes over your heirs’ inheritances.

Business Deal: Changes in your career path such as starting a business, selling company assets, or retiring can all affect your family’s future financial plans.

Change in Financial Laws: Any changes particularly federal or state tax laws, may necessitate asset restructuring or lead to the loss of substantial amounts to the government. It is important to stay informed of these changes and consult with an estate planning attorney.

It is important to update your estate plan regularly as your life circumstances change because it is a document that needs to be kept current. Failure to update your estate plan could result in unintended consequences that could negatively impact your heirs’ inheritance. To ensure that your estate plan reflects your current wishes, it’s recommended to consult with a qualified estate planning attorney.

Life Events for Estate Plan Updates	Impact on Estate Plan
Death	Choose alternate executor, trustee, or guardian.
New Addition	Adjust estate plan for new family members or responsibilities.
Health Crisis	Update will for illness, disability, or nursing care.
Milestone Birthday	Consider financial assistance for education.
Marriage	Include provisions for new spouse and future children.
Divorce	Revise plan to remove former spouse as executor/beneficiary.
Significant Purchase	Prevent disputes over inheritances after major acquisitions.
Business Deal	Adapt plan to changes in career, business, or retirement.
Change in Financial Laws	Restructure assets due to tax law changes.

ESTATE PLANNING IS ALL THIS AND MORE

We clearly believe estate planning is a gift. But it is not a gift you can grab at the store; it requires meaningful thought and responsible foresight.

In this brief article, we covered the basics you should be thinking about regarding estate planning, but for each section above we could write ten more articles. Help yourself give the gift of planning and connect with a great team of estate planning professionals.

We want to help you prepare for your future and the future of your family. Contact us today to get started on your estate plan.

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Understanding the Different Types of Wills

In the basic sense of the term, a will is a document that is made up by a person, or several people, to spell out how final affairs should be taken care of once they have passed away. Each will must meet a set standard that is determined by the state in which a person lives. And if poorly crafted, the will may not be useful in a court of law, especially if contested. 

To draft a will, there is a lot of information that is collected upfront.  Figuring out executors, beneficiaries, assets, debts, and the distribution of your estate is essential to the seamless administration of your estate when the time comes. The will drafting process should be thorough enough to cover most situations in life, but everyone has different circumstances.  Your needs, the nature of your estate, and even the way you interact with potential heirs all affect how your will should be drafted in life, and how your assets are distributed after your passing.

When setting up a will, it is necessary to first figure out the type of will that best suits your needs. At New York Legacy Lawyers, our team of New York estate planning lawyers is ready to assist you in determining the best type of will for your needs. With our experience and attention to detail, we will guide you through the process of securing your assets and protecting your loved ones. Contact us today at (718) 713-8080 to schedule a consultation.

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The Simple Will

This type of will dictates how property from a person’s (testator’s) estate is to be distributed. This will is usually created by a person that has a straightforward financial makeup. It is simple enough that the testator can make it out themselves with the occasional guidance of a lawyer to avoid mistakes. It includes the testator’s name, address if they were married or not, and a list of instructions spelling out how all assets are to be distributed. It is also be typed and not handwritten to avoid the issue of forgery. The will names a person responsible for executing the will, the executor. Moreover, it also has a section that determines where minor children are to be placed. The testator will need to date and sign the will in front of witnesses for it to become binding and legal.

The Testamentary Trust in Your Will

The testamentary trust is a structure you can set up that will smooth the task of responsibly administering all funds and property that are named in a trust identified within the will. For instance, a person might set up a “spendthrift trust” for someone that is not financially responsible enough to manage their assets due to age or financial immaturity. The solution in your will is to name someone responsible as the administrator of the trust that you had previously setup with the help of an estate planning attorney.  Once the trust recipient (beneficiary) has met certain conditions, usually they reach a certain age, the contents of the trust are distributed to them..

The Joint Will

This type of will is created by two testators that have decided to leave their property one to another. The way that this kind of will works is that the person who dies last is the one that gets everything. Beyond that, a joint-will also spells out what happens to the estate once the second person passes away. The will becomes permanent once one of the testators dies. Which makes sense, since the trigger of the will, a death of one of the testators, has occurred. If both testators are living, then the will can be dissolved or recreated. However, it can only be changed at the consent of both testators.

The Living Will

This kind of will does not deal with monetary or property issues. In fact, it’s not a Will as you would understand it; instead, it is a valuable tool for your family or trusted friends to utilize while you’re still alive. A living will provides healthcare professionals and trusted friends and family the instructions a person needs when they are unconscious or unable to speak or coherently make decisions.

A living will is beneficial for when a person is near death or unable to make decisions for their self-care. For example, if a person were hooked up to a breathing machine and the family was conflicted on whether to keep the person on life support, they could (or would) seek guidance from the wishes of the person on life support – via their living will.

Types of Wills	Description
Simple Will	Dictates distribution of property from a testator’s estate. Created by individuals with straightforward finances. Includes testator’s name, address, marital status, and asset distribution instructions. Typed to avoid forgery. Names an executor and determines placement of minor children. Requires testator’s signature in front of witnesses.
Testamentary Trust	Structure within a will to administer assets in a trust. Ensures responsible management for beneficiaries who may be financially immature or of a certain age. Names a trust administrator. Contents distributed to beneficiary upon meeting specific conditions.
Joint Will	Created by two testators leaving property to each other. Survivor inherits everything. Specifies estate distribution upon second testator’s death. Becomes permanent after first testator’s death. Can be dissolved or recreated only with both testators’ consent.
Living Will	Not a traditional will. Provides instructions for healthcare professionals and trusted individuals when testator is unable to make decisions. Helps guide self-care decisions when near death or incapacitated. Offers guidance on life support continuation based on testator’s wishes.

What are the Four Major Components of a Will?

In New York, it is mandatory for a will to be in written form, requiring the testator’s signature, and the attestation of two individuals who are at least 18 years old. It’s important to note that beneficiaries named in the will cannot serve as witnesses to ensure its validity. If an unsuitable witness is used, it can result in the permanent invalidation of the will. Meeting the legal criteria for witnesses is typically challenging for blood relatives.

While there are a few exceptions to these requirements, they are rare. A nuncupative will, spoken aloud or recorded in the presence of at least two witnesses, is one such exception. Another exception is a holographic will, entirely handwritten by the testator, which doesn’t require any witnesses. However, both holographic and nuncupative wills are generally not preferred because they don’t provide the same level of authenticity as written and authenticated wills, and they are considered legally valid only under exceptional circumstances.

One such circumstance is when a member of the armed forces or an accompanying person, such as a reporter, drafts the will during a military conflict. In such cases, a holographic will lose its validity one year after the testator leaves military service, serving as a measure of last resort. The other exception is when a mariner drafts the Will while at sea, which becomes void three years after its establishment.

To ensure that your will satisfies the required components, it is important to get the help of an experienced New York estate planning attorney. An attorney can guide you on the necessary guidelines and ensure that your wishes are reflected in the relevant documents.

Getting Professional Guidance on Wills

If you are looking to establish a will, then all of us at Yana Feldman & Associates, PLLC can help you. We specialize in estate planning and elder law. We desire to help families like yours to take care of the things that matter.

Call us today at (718) 713-8080 or contact us here for more information.

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Planning for Incapacity FAQs

What is a Durable Power of Attorney?

A Durable Power of Attorney is a document that empowers another individual to carry on your financial affairs in the event you become disabled or incapacitated. Without a Durable Power of Attorney, it may be necessary for one of your loved ones, including your wife or adult child to petition a court to be appointed guardian or conservator in order to make decisions for you when you are incapacitated.  This guardianship process is time consuming, expensive, often costing thousands of dollars and it can be emotionally draining for your family.

There are generally two types of durable powers of attorney: a present Durable Power of Attorney in which the power is immediately transferred to your attorney in fact; and a springing or future Durable Power of Attorney that only comes into effect upon your subsequent disability as determined by your doctor.  When you appoint another individual to make financial decisions on your behalf, that individual is called an agent or attorney in fact. Most people choose their spouse or domestic partner, a trusted family member, or friend.

Who can establish a Power of Attorney?

Generally, any individual over the age of majority and who is legally competent can establish a Power of Attorney.

Who may act as an agent under a Power of Attorney?

In general, an agent, or attorney in fact, may be anyone who is legally competent and over the age of majority. Most individuals select a close family member such as a spouse, sibling or adult child, but any person such as a friend or a professional with an outstanding reputation for honesty would be ideal. You may appoint multiple agents to serve either simultaneously or separately. Appointing more than one agent to serve simultaneously can be problematic because if any one of the agents is unavailable to sign, action may be delayed. Confusion and disagreement between simultaneous agents can also lead to inaction. Therefore, it is usually more prudent to appoint one individual as the primary agent and nominate additional individuals to serve as alternate agents if your first choice is unwilling or unable to serve.

What is a Durable Power of Attorney for Health Care?

The law allows you to appoint someone to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a “Durable Power of Attorney for Health Care” or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

What is a Living Will?

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

What is a HIPAA Authorization?

Some medical providers have refused to release information, even to spouses and adult children authorized by the Healthcare Power of Attorney on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. Therefore, as part of your incapacity planning, you should sign a HIPAA authorization form that allows the release of medical information to your agents, successor trustees, family or any other individuals you wish to designate.

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from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/planning-for-incapacity-faqs/

Why Estate Planning Should be a Top Priority for You

Considering how our estates should be managed and distributed after our death is an important decision we must make throughout our lives. This involves deciding on the distribution of assets, selecting beneficiaries, and determining if and how you wish to leave a legacy. An estate plan is a tool that consolidates these decisions, incorporating elements such as a will, trusts, living wills, healthcare proxies, powers of attorney, and specific guidelines for managing your affairs after you pass away and, in some cases, during your lifetime.

Estate planning is more than just preparing for the future; it’s about securing peace of mind for you and your loved ones. At New York Legacy Lawyers, our Brooklyn estate planning attorneys understand the complexities and nuances of New York estate law. We can guide you in creating a comprehensive plan that protects your assets, respects your wishes, and provides for your family. Contact us at (718) 713-8080 to schedule a consultation.

The Estate Plan Concept is for Everyone

When the word “estate” gets used some people immediately think of those with a lot of money or palatial property. In reality, every person has an estate.

Your estate is everything that you own. It includes your valued family treasures, the silverware in your dishwasher, and your kids’ toys alike…and everything in between! 

Of course, it’s not just physical possessions either; it can consist of your bank accounts and insurance policies, retirement accounts, and items that you have been saving for your children and grandkids.

An estate plan will help you protect all of these things, and more, giving you the ability to discern what happens to it all when you pass away.

What Are Estate Planning Goals?

Estate planning is a crucial part of managing assets, focusing on the effective distribution and management of your assets according to your wishes upon your passing. It is more than just the distribution of property; it involves making choices that reflect your personal values and objectives. The common goals of estate planning include:

• Providing for Loved Ones: This goal is central to most estate plans as it involves decisions regarding asset inheritance and specific distributions. Without a plan, state laws may dictate these matters, possibly in ways that do not align with your personal wishes.
• Mitigating or Avoiding Probate: Probate can be a costly and lengthy process. Effective estate planning can simplify or bypass this procedure, sparing your heirs the expense and stress of a prolonged legal process. Techniques such as setting up trusts or designating beneficiaries can help to achieve this goal.
• Minimizing Taxes: Estate taxes can considerably reduce the worth they are passed on to your beneficiaries. Strategic estate planning can help reduce or eliminate these taxes, ensuring beneficiaries or chosen charities receive the maximum benefit from your estate.
• Ensuring Orderly Asset Management: Estate planning can prevent asset mismanagement or loss during the transition period after your death. This includes appointing reliable executors or trustees and giving them clear instructions on how to manage and distribute your assets.
• Asset Protection: Your estate plan can also include measures to protect your assets from lawsuits, creditors, and other threats. This might involve setting up certain types of trusts or business structures to protect your assets from potential liabilities.
• Planning for Incapacity: Preparing for the possibility of mental or physical incapacity is an often overlooked but vital part of estate planning. Setting up powers of attorney or advance health care directives ensures that your affairs are handled in accordance with your wishes if you become incapable of managing them yourself.
• Appointing Guardians for Minor Children: If you have young children, it’s essential for your estate plan to include arrangements for their guardianship in the event that you and your spouse pass away unexpectedly.

A Brooklyn estate planning attorney understands the intricacies of achieving your unique estate planning goals. Whether you aim to protect your assets, minimize tax liabilities, or ensure a seamless transfer of wealth to your heirs, New York Legacy Lawyers is committed to guiding you through the entire process. Contact us to initiate your personalized estate planning journey today.

Estate Planning Goals	Description
Providing for Loved Ones	Decisions regarding asset inheritance and specific distributions, ensuring that state laws do not dictate matters contrary to your wishes.
Mitigating or Avoiding Probate	Simplifying or bypassing the costly and lengthy probate process through effective estate planning methods like trusts or beneficiary designations.
Minimizing Taxes	Reducing or eliminating estate taxes to maximize the benefit received by beneficiaries or chosen charities.
Ensuring Orderly Asset Management	Preventing asset mismanagement or loss during the transition after your death by appointing reliable executors or trustees and providing clear instructions for asset management and distribution.
Asset Protection	Implementing measures to safeguard assets from lawsuits, creditors, and other threats, possibly by establishing specific types of trusts or business structures.
Planning for Incapacity	Preparing for potential mental or physical incapacity by setting up powers of attorney or advance health care directives to ensure your affairs align with your wishes if you become incapable of managing them yourself.
Appointing Guardians for Minor Children	Including arrangements for the guardianship of young children in your estate plan to provide for their care if you and your spouse pass away unexpectedly.

An Estate Plan for the Living?

There are situations we’ve all experienced or watched friends go through, when a person becomes physically or mentally unable to care for themselves or even make good choices for themselves. An estate plan becomes the means for someone in that state to still have some control, albeit from decisions they’ve prepared ahead of time.

While you have the capacity to make plans today, you can assign power of attorney to a specific person you trust and even include medical care instructions when or if the need arises. Should you become incapable or incapacitated, but still alive, everything you have is then protected from your actions, or from predatory strangers taking advantage of you while you are unable to understand or say, “No!”

When A Stranger Has Control

This scenario is probably the scariest part of NOT creating a plan. Without the guidance of a will, trust, power of attorney, or other aspects of an estate plan, complete strangers may be left to decide what happens to everything you have. These aren’t shady characters in back-alleys, necessarily. They are usually judges, or doctors, or other professionals. But what they likely will not be is someone who knows you intimately, understands the dynamics of your family, and has the benefit of decades of experience being you and making the decisions on your health and wealth that YOU would make.

Your Estate Plan is Dynamic

Some choose not to develop an estate plan until they are older; this may be because they mistakenly believe that an estate plan cannot be modified once it is completed. The truth is that for an estate plan to work for you, it must be dynamic. Your estate plan should grow with you and change as the circumstances in your life change and evolve. For this reason, it’s essential that as you seek to establish your estate plan, you look for an estate planning attorney you can trust.

Knowing Who You Can Trust

We have been helping people plan and manage their estate plans for over 15 years. We take the time to listen to your concerns, so we can offer the advice and guidance that will best help you develop the right plan for your family and situation. For more information or help with your estate plan, please contact us today. Enlist the help of a New York legacy lawyer to secure your family’s future.

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Respect Your Elders: 4 Important Reasons to Hire an Elder Law Attorney in New York

As our population continues to age, it becomes increasingly important to recognize and respect the unique legal needs of our elders. In the bustling city of New York, where millions of seniors call home, navigating the complex realm of elder law can be a daunting task. That’s where the expertise of an elder law attorney comes in. In this article, we will explore four reasons why hiring an elder law attorney in New York is not only beneficial but also essential in ensuring the well-being and protection of our beloved seniors.

A New York elder law attorney can provide invaluable assistance in various aspects of senior life. At New York Legacy Lawyers, our team of New York elder law attorneys may be able to guide you through the complex Medicaid application process, offer advice on asset protection strategies, and help preserve their wealth while ensuring compliance with regulations. Contact us today at (718)713-8080 to schedule a consultation.

1. Coordinating Care for Health and Living

Most people need some level of more advanced healthcare and living assistance as they age. Navigating the options can be very complicated. Consider, there are a wide range of living arrangements to consider including home care, independent living, assisted living, and nursing homes. An elder law attorney will help you understand what to expect for the level of care and costs.

Moreover, an elder law attorney will help you understand the healthcare options for seniors and different considerations to make as you get older. For example, when it comes to your healthcare needs, it’s wise to consider end-of-life planning. You may want to develop a living will, basically your end of life – just in case – treatment plans. You will also probably want to prepare for passing along your decision-making authority to a trusted caregiver as you get older.

2. Transferring Decision Making Authority 

In the ordinary course of aging, it will eventually become more challenging for you to handle the big financial and healthcare decisions that need to be made. Fortunately, if you plan ahead, there are ways to ensure that you’re able to manage these difficulties or at least manage those who will take care of these decisions for you.  

You will probably want to establish advance directives. These are legal documents that allow you to direct your future caregivers on how to handle certain circumstances.  However, occasions can arise that are not covered by advance directives.  In whatever way your future plays out, an elder law attorney will help you plan for and establish the transfer of your decision-making authority to a trusted caregiver.

3. Understanding and Receiving Benefits

Today, millions of aging Americans are missing out on billions of dollars in benefits, mostly because they aren’t aware they’re eligible.  

New York State and the federal government both offer financial and aid benefits to seniors based on age and income.

A good elder law attorney can help make sure you’re not missing out on any benefits and that you’re not paying too much for the services you currently receive.

4. Financial Planning and Representation

Financial planning means understanding how you’ll pay for your day-to-day needs and the costs that will arise as you continue to age. Additionally, financial planning means Estate planning.

Estate planning involves establishing a will or a trust. You will need to determine what will be done with your financial and property assets, the guardianship responsibilities you have for any family members, and possibly business succession planning.

Reasons to Hire an Elder Law Attorney	Description
Coordinating Care for Health and Living	Help understand healthcare options and end-of-life planning
Transferring Decision Making Authority	Plan for future decision-making difficulties and establish advance directives
Understanding and Receiving Benefits	Assist in accessing financial and aid benefits for seniors
Financial Planning and Representation	Provide guidance in financial planning, estate planning, and business succession planning

What is Elder Law

Elder law encompasses a specialized area of legal practice that caters to the needs of individuals preparing for retirement, those with disabilities, individuals requiring Medicaid services, and those concerned about the costs associated with nursing homes. In New York, elder law attorneys specialize in addressing the unique concerns of seniors and older adults regarding estate planning, asset protection, Medicaid planning, and family law. As our loved ones age and transition into their senior years, numerous questions arise pertaining to finances, assets, estates, healthcare, and long-term care, among others.

Legal Matters Commonly Handled in Elder Law

Elder law encompasses a broad spectrum of legal issues specifically tailored to address the unique needs and concerns that arise with aging, including:

• Estate Planning: Elder law attorneys help seniors create comprehensive estate plans that consider their changing needs and goals as they age. By incorporating trusts, guardianships, and healthcare directives, seniors can protect themselves and their loved ones and ensure their wishes are respected.
• Long-Term Care: Long-term care provides essential assistance to seniors who may struggle with daily tasks due to aging-related physical or cognitive decline. It includes services like medical care and help with activities of daily living, enabling seniors to maintain independence and a high quality of life.
• Asset Protection: Elder law attorneys assist seniors in developing asset protection plans that shield their assets from creditors, minimize taxes, and ensure assets are distributed according to their wishes. This helps seniors qualify for government benefits like Medicaid while safeguarding their hard-earned assets.
• Senior Guardianships: Elder law attorneys establish and advocate for senior guardianships to protect vulnerable seniors who are unable to make decisions or manage their affairs. They work to ensure the rights and interests of seniors under guardianship are respected and may challenge or modify guardianships when necessary.
• Wills and Trusts: Wills and trusts are crucial elements of elder law estate planning, allowing seniors to dictate the distribution of their assets after their passing. Elder law attorneys help create comprehensive estate plans that encompass wills, trusts, and other essential documents.
• Special Needs Trusts: Special needs trusts are legal arrangements that protect assets for individuals with disabilities, ensuring they can receive government benefits without losing eligibility. Elder law attorneys establish special needs trusts to provide for the needs of disabled beneficiaries while preserving their access to essential benefits.
• Medicaid Planning: Elder law attorneys assist seniors and their families in developing Medicaid plans that protect assets and income while maximizing eligibility for Medicaid benefits. This involves strategies like asset transfers, exempt asset acquisition, and income planning to meet Medicaid’s requirements.

The Importance of Life Care Planning Services in Elder Law

Life care planning services are integral to elder law, ensuring that as individuals age, they have a comprehensive plan tailored to their long-term needs. These services encompass the medical, legal, and financial aspects of a senior’s life, focusing on maximizing their quality of life and independence while efficiently managing the costs of long-term care.

Comprehensive Approach: Life care planning takes into account the entire spectrum of planning, from healthcare coordination to legal document preparation. The goal is not only to address immediate concerns but also to anticipate future needs. This includes navigating Medicare and Medicaid benefits, coordinating supplemental insurance, and ensuring that long-term care arrangements are in place.

Healthcare Coordination: A critical component of life care planning is the assessment of the individual’s current and future health care needs. This involves creating a plan that coordinates care among various health care providers, manages chronic health conditions, and anticipates potential health care issues that could arise with aging.

Financial Security: Effective life care planning services protect an individual’s assets while ensuring that the costs for required care are covered. This involves legal strategies for the preservation and transfer of assets, such as drafting trusts and exploring appropriate financial products that align with the senior’s care needs and eligibility for public benefits.

Legal Preparedness: Ensuring that all legal documentation is in place is a key function of life care planning. This includes advance directives, Power of Attorney, and living wills, which are essential for articulating the senior’s wishes regarding medical treatments and end-of-life care. Life care planners work to ensure these documents are legally sound and reflective of the individual’s desires.

Navigating Transitions: As seniors move through different phases of aging, life care planning services facilitate transitions, whether it’s adapting to in-home care or transitioning to assisted living or nursing home facilities. The plan adapts to changing health statuses and care requirements, maintaining a focus on the individual’s well-being and autonomy.

By engaging in life care planning services, families can ensure that their elderly loved ones receive coordinated, compassionate, and competent care that addresses their comprehensive needs while remaining in compliance with complex healthcare and legal systems.

Hire an Elder Law Attorney

Hiring an elder law attorney in New York is a crucial step in ensuring the well-being and protection of our elderly loved ones. By understanding the unique challenges and complexities faced by older individuals, an elder law attorney offers invaluable assistance and support. 

At New York Legacy Lawyers, our team of New York elder law attorneys may be able to assist you in estate planning, Medicaid planning, long-term care arrangements, and guardianship matters to ensure that your elderly family members receive the best possible care and protection. Contact us today at (718)713-8080 to schedule a consultation.

NY estate planning attorney

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