A will is one of the most basic estate planning documents for New York residents, and everyone should have one to make sure that there is no question about what would happen to your assets and minor children if something happens to you.  But there are a few cases when having a revocable living trust as your main planning tool is imperative:

Avoiding probate.  A revocable living trust will bypass the probate process, saving the people you love time and money.  This is an easy step in traditional families that are in close contact and who agree with your choice of Executor; a form known as a “Waiver and Consent” must be sent to those individuals who would inherit from you if you had died without a will. If you are living with a domestic partner, are estranged from your immediate family, if your only relatives are distant cousins who you do not intend to benefit and/or who are no longer in contact, the traditional probate and court-supervised administration may be a costly and drawn out endeavor to benefit just a few individuals or charities. With a revocable living trust, if it is properly created and funded, the expense and delay of searching out those distant or estranged relatives and hoping they will consent to a probate is avoided.

Out-of-state property.  If you own property in another state besides New York, you can more easily transfer ownership via a trust than a will.  Transferring out-of-state property in a will usually means additional legal expenses because you could have probate in multiple states, which means added costs, legal fees and avoidable delay for the people you love.

Asset protection.  If you want to protect the assets you leave your loved ones from creditors (including bankruptcy and divorce) a trust is the way to do it. Here, however, you will need an irrevocable trust; a revocable living trust is a fantastic asset management tool and avoids multiple court proceedings but will not protect your assets against creditors or safeguard assets against future expenses.  It’s a valuable gift you can give your loved ones.

If you would like to learn more about the use of trusts in your unique situation to pass on what you care about to the people you love, call any of our offices today to schedule a time for us to sit down and talk. We would be happy to meet with you in Rochester at the Culver Road Armory or at our Newark, New York or Canandaigua, New York sites. Call our main office today at (585) 232-5300 and mention this article. We will set your appointment at your chosen location.

When a Revocable Living Trust is Better Than a Will in New York

Picture this – you get an opportunity to spend some alone time with your spouse. What do you do to prepare for date night? You carefully select a babysitter. Then, you write detailed instructions; when to feed the baby, how often to change diapers, what snacks are allowed…and you leave a myriad of contact information including your cell phone numbers, the grandparent’s phone numbers, the neighbor’s phone number…you get the idea.

Putting this plan in place takes some time, but it provides you with a great sense of peace knowing that the babysitter you chose will have all that he or she needs to make sure your children are okay during your absence.

Now we’re going to ask you a question. Answer honestly. How much time have you spent planning for your children’s future in the event that you can no longer care for them?

If you are like most parents of young children, we already know the answer. It’s a sad fact that most parents of young children do not have an estate plan in place.  If you think about it, you probably spend more time preparing to go out for a dinner and a movie than you do planning for the potential that you won’t be there to raise them.

We get it. The odds are in your favor. Chances are great that you will live a long, healthy life. But, accidents happen. Even young and healthy people can face the unexpected. You could be temporarily or permanently incapacitated – or worse. If something does happen to one or both parents, it can devastate a child’s world. Even though you can’t plan away the emotional trauma they will suffer, you can put a solid foundation under them that will ensure that they are cared for by the person you choose.

In a way, the process is similar to planning for a date night, but the first step is to select a guardian rather than a babysitter. This person will raise your child, so you should carefully consider who should fill this role. It’s often best to brainstorm with a Rochester trusts and estates attorney, as he or she can help you consider each person from all angles.

The next step is to make a plan that legally documents your wishes and preferences, including your preferences for your children’s upbringing, what type of education you envision, experiences you wish for them to have, at what age should they inherit money that you leave for them, etc. Again, an experienced Rochester trusts and estates attorney can help guide you through this process.

Just like having a detailed plan for date night, once your estate plan is in place, you’ll be able to relax and enjoy the peace of mind that your children will have a secure future even if you aren’t there. Call our office at 585-232-5300 today and request a Planning Session with one of our Trusts and Estates attorneys.

You Plan for Date Night – But Not for Your Kids Future?! 

Unfortunately, many parents of children with special needs wait until their child turns 18 to consider creating a special needs trust. Sometimes, they even wait until their child eventually needs government benefits like SSI or Medicaid. However, special needs trusts do a lot more than just protect the beneficiary’s access to government benefits and should be created as soon as possible.  Below are a few reasons why.

A Special Needs Trust Secures the Child’s Future

The best reason for creating a special needs trust before your child turns 18 is the same reason that parents of children without special needs should have an estate plan – to ensure the stability and security of their family members if something unexpected happens to them. Creating a special needs trust before a child needs it ensures that the trust will be there during all of life’s transitions. If a parent of a child with disabilities dies unexpectedly and a special needs trust is not established, the direct inheritance could make them immediately ineligible for any government assistance.  The Trust would also allow someone else, called a Successor Trustee, to immediately step in and start helping your child financially without having to wait for the courts to get involved.

They can receive gifts from parents or grandparents

Parents may decide to establish a special needs trust for their minor child so that the grandparents and other relatives can fund it with gifts. Also, older relatives who are planning on leaving an inheritance for the child with special needs can bequest the funds directly to the trust. Having a special needs trust guarantees that if the child needs government benefits in the future, he or she will not have large amounts of money in their name that could negatively impact eligibility.

Life insurance benefits can be protected

One way that parents sometimes ensure that their child will have money for future care is to purchase a life insurance policy where the payout goes into the child’s special needs trust. The earlier the parents start funding the life insurance policy, the bigger the financial benefit for their child with special needs. This funding can start well before a child turns 18, so it makes sense to create a special needs trust to hold the proceeds even if the child is not yet receiving government benefits.

You can create a care management plan

Special needs trusts can provide a care management plan as well as a structure for family involvement in the daily life of the person with special needs. In addition, professional trustees can serve as resources for families that are looking for additional care options for their child.

Creating your child’s special needs trust and keeping it updated can be a very effective planning strategy for reasons that go way beyond preserving government benefits. Even if the trust is unfunded during the parent’s lives, having it can create a solid, stable foundation for the child if it is needed. If you have not yet created a special needs trust for your child, call our Rochester, New York office at (585) 232-5300 or our Newark, New York office at (315) 331-3813 to set up a planning session today.

Rochester Special Needs Lawyer: Special Needs Trusts Protect Government Benefits and MUCH More

The number of adult children caring for their aging parents is growing at a very fast pace. If you are a baby boomer and not already caring for an aging parent, chances are high that you might be facing this situation soon.  It isn’t always easy to know when, or how, to step in to ensure that your aging loved one receives the care that he or she needs. Boylan Code LLP has helped hundreds of Rochester-area families through this stage of life and can offer tips for assisting your aging loved ones.

How to know when to step in

Age alone is not an indicator of when an aging person needs you. Some people do quite well on their own into their nineties and beyond.  Others might need help much earlier. The key here is to look for warning signs. The signs might include frequent falls or unexplained bruises, an empty fridge, or even unopened mail. Frequent visits are the best way to get a clear picture of your loved one’s physical and mental health.

Develop a plan

If you think the time has come to step in and provide care for your aging loved one, you should start by developing a plan that includes all family members. Your aging loved one should participate in creating the plan. It’s best to start with small, easy changes that still allow your loved one to maintain his or her independence.

Meet with an Elder Law Attorney

To provide the best care for your aging loved one, you need to ensure that they have the necessary legal protections in place. An elder law attorney can help your loved one create documents that will allow you, or someone of their choosing, to make decisions for them in financial and medical matters.

If you suspect that your loved one needs help, we encourage you to take these steps right away. We hate receiving calls from families who waited too long and are facing unnecessary financial and legal crises as a result.  Don’t limit your options. Call our Rochester office at (585) 232-5300 to schedule a long term care consultation for the peace of mind knowing that you are doing everything possible to help your loved one.

How to Know When It’s Time to Step in and Care for Your Aging Loved One

Elder care lawyers in Rochester and the Finger Lakes work with families to prepare for any number of situations in the estate planning process. One circumstance that is especially relevant to elder care law is dementia. Alzheimer’s disease and other forms of dementia are almost exclusively conditions which appear late in life.

Along with the emotional turmoil on the patient and family members, dementia also takes quite a financial toll. Alzheimer’s and related illnesses are typically degenerative, usually progressing slowly over time, while requiring considerable medical and personal care. Elder care lawyers have experience helping clients create plans that provide for both the medical and the quality-of-life aspects of these expenses.

Early planning is critical.  If it is suspected that you or a family member is developing any form of dementia or any other ailment that impairs thinking, estate planning should be arranged with an elder care lawyer as soon as possible.  A dementia patient’s mental capacity will decline, and in order for predefined wishes to be followed, his or her current capacity cannot be in question.  Getting started as soon as an issue is suspected is one of the best ways to ensure having the greatest say in the future. National Healthcare Decisions Day on April 16th serves a perfect reminder to take the important step to secure your wishes.

Because of the progression of the disease, some of the most important decisions to be made are medical ones.  For example, a healthcare proxy needs to be drawn up to designate a trustworthy person to make medical decisions for the patient when he or she is no longer able to do so.  If this person is not chosen in advance, it is likely the courts will need to appoint one at a later date and if family members cannot agree or no one is available an agency will be named rather than an individual who knows wishes and preferences. Taking care of this issue with an elder care lawyer in Rochester now means that you have more control over what happens later.

Asset protection is another major concern for dementia patients.  The physical progression of Alzheimer’s disease and dementia can take many years, while the mental progression may be much faster.  This means the individual may require specialized care (including monitoring, nursing, and other personal needs) for a very long time, therefore depleting existing finances. Learning how to maximize the value of assets now can greatly impact the quality of care one can afford down the road. There is also concern regarding estate planning, as the costs associated with dementia can easily wipe out any potential inheritance unless the proper plans have been put into place.

When it comes to elder care, it makes good sense to seek a qualified elder care attorney who can help navigate the ins and outs of the system as it relates the special needs of those with Alzheimer’s disease and other forms of dementia. If you are ready to get started, simply call any Boylan Code LLP office, Rochester (585) 232-5300, Newark (315) 331-0922  or Canandaigua (585) 394-7970 and ask to schedule a Long Term Care consultation.

Elder Care Lawyers in the Finger Lakes Offer Important Strategies for Dementia Patients

Like many Americans, your home is probably your largest asset. However, if you have children who have grown and moved away, you’re left with an empty nest, quiet and big. You may be torn between keeping the house and passing it to your children someday, or selling it. On one hand, it may be the biggest asset you could pass onto your children. On the other hand, you have your own immediate needs to consider, and maybe you’re not quite sure your kids could handle the house when you are gone. Before deciding whether to sell or keep your home, consider the following:

 

Taxes

Your estate will not pay federal estate taxes following your death if your total assets are worth less than $11.2 million (individually), but there may be state estate taxes to deal with. Likewise, if your heirs keep the house, they will have to pay for upkeep, including property taxes. Property taxes increase as property values increase. While your children may want to have your house, they may not be ready or have the liquidity to pay the taxes.

Your children will also potentially have to pay capital gains taxes if they sell the house because it is not their primary residence. (If you sell your home and have lived in it for two of the last five years you can exclude capital gain up to $250,000 as a single individual and up to $500,000 as a married couple.)

Time

Regardless of whether your children keep your house or not, they may have to deal with cleaning, de-cluttering, repairs, and renovations. Unless you’ve been diligent with downsizing, you may be leaving a lot of work for your children, who likely have careers and families of their own, which cuts back on the time they have available to work on your home. You may be in a better position to make your house move-in ready for your children or whoever buys the house.

The Here and Now

It’s important to plan for your future, but estate planning is about the present, too. You’re still alive, and you not only have needs, but desires and wishes. You probably don’t want to spend all your golden years planning for the time when you won’t be around.

If you don’t want to keep and care for a big house, you could still maximize the inheritance you are leaving to your family while enjoying your life. You could sell your house and buy a smaller residence, while putting the remaining money aside to take care of your expenses while you relax, take up a hobby, explore the world, or spend your time focusing on volunteer and charity work.

At Boylan Code LLP we have experience real estate attorneys as well as estate planning attorneys and we would be happy to help you determine the best course of action for your residence as well as any vacation or investment property you may own. We can help you create an estate plan that fits your present needs and your desire to leave something for your children. We can help you understand both the laws that govern your property and the relationships you want to preserve. If you would like to speak to one of our experts about creating an estate plan that is tailored to your needs, simply call (585) 232-5300 to set up your planning session. Be sure to indicate your preferred choice of our offices. We are conveniently located in Rochester, Canandaigua and Newark.

 

 

 

Sell the House, or Keep It for the Kids?