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All too often, I meet with new clients that need assistance with elder law long term care planning for a loved one, but have either waited too long or show up after they have followed improper advice from well-meaning individuals who were not elder law attorneys. In this post you will learn when you should contact an Elder Law Attorney in New York.

If one waits too long, by the time they meet with an elder law attorney, they may have lost significant planning opportunities that would have otherwise been available had they come much earlier. They are also usually already stressed with the physical, emotional and financial burden of dealing with their loved one’s long term care needs.

I recently met with John (*name changed) who was referred to my elder law office because his mom was running out of funds. She suffered from advanced dementia and had trouble with activities such as walking, dressing and taking care of her personal hygiene. John had arranged for home health aides to care for her 12 hours daily at a monthly cost of approximately $9,000. John was concerned because his mom had less than $60,000 left in her bank accounts and soon, other than her small monthly social security check, there would be no money to cover her expenses.

This is a typical case where meeting with an elder law attorney earlier, long before the thousands of dollars were spent on home health aides, could have saved most of mom’s money.

Well-meaning friends, neighbors, and sometimes social workers give advice but don’t know the intricate laws relating to long term care, and specifically the Medicaid care program.

Many people are unaware that there are alternative ways to plan for the high costs of long term care other than spending down one’s own money.

Many people are unaware that currently in New York there is no look back (penalty) period to access Medicaid home care benefits.

Few people know in advance when they may actually need future services of a home health aide or be admitted to a nursing home. But planning when you don’t yet need these services will give you the greatest flexibility and allow you the greatest opportunity to preserve your assets, protect your home, and receive the care that you may need.

Planning for the eventual need for elder care before any such needs are on the horizon, will allow you to plan when you are calm, capable of logical decision making, and allow you to consult with your loved ones and collaborate for what is best for you. Waiting until a crisis, result in less options available, rushed decisions, and additional pressure on top of dealing with the actual crisis.

Regardless of when you come into our office, whether in a time of calm or during an unexpected storm, an elder law attorney will lay out your options with clarity and compassion.

While it gives us great satisfaction to assist clients in the eleventh hour, it gives us even greater joy to help a family plan in advance.

We can help with your Elder Law issues

When the phone rings in my firm with a potential new client, one of the first questions we are asked is, “how much will an estate plan cost?”

The challenge we have in answering that question, is that every person has a different idea of what an estate plan is and therefore they are often asking a different question.

How much does a will cost? How much does a healthcare proxy cost? How much does a trust cost?

Often, there is a misconception that they are paying for my office to draft some documents for them, something that can be done with very inexpensive online software. Of course we draft documents for them but what they really pay us for, is the knowledge and expertise to create the best plan for them that will protect their hard-earned assets and allow them to age with peace and dignity.

My job in the rest of this article is to make you a more educated consumer. Keep reading and you will find out some of the questions you should be asking and some of the factors that drive the cost of a good estate plan. This way, when you call my firm to schedule a free consultation, you will be a knowledgeable consumer. So let’s get started with the first question:

Do you know the difference between Estate Planning Documents and an Estate Plan?

It is crucial to understand what estate planning is and understand what a client is paying for when they retain an attorney to prepare estate planning documents for them, such as a…

• Trust
• Will
• Power of attorney
• Health care proxy

If your goal is to have documents that will address your needs, then you are looking for an estate plan, and not just documents. A proper estate plan must address your individual objectives, take your personal details into consideration, and include a professional evaluation and assessment of the type and content of the documents that would best meet your personal needs and goals. The estate planning documents prepared from this effort are the embodiment of your Estate Plan.

I recently got a call from a woman, whom I will refer to as Nancy (name changed to maintain confidentiality). Nancy heard about my services from her neighbor Susan (again, name changed).

My firm had recently set up an Irrevocable Asset Protection Trust to protect Susan’s assets in the event she needs to access Medicaid benefits to pay for her long term care in the future.

Nancy decided that it sounded very smart to do the same thing and contacted me to set up an Irrevocable Asset Protection Trust for herself.

During our initial call, Nancy asked me “How much will a trust cost?”

I explained to Nancy, that every client has a unique situation and what may have been the best plan for Susan, is not necessarily the best plan for Nancy.

We would first need to have a consultation to review details such as Nancy’s family, financial, and health situation, before determining what would be the best way to move forward in achieving Nancy’s goal of long term care planning. We would need to create an Estate Plan which would determine the type and content of the Estate Planning Documents.

By the end of my meeting with Nancy, it is clear that given her personal circumstances, there were dangerous pitfalls to proceeding with such a trust and there were more beneficial, efficient, and economical ways of proceeding.

If a lawyer can quote a precise price of preparing an estate plan that will suit a particular person in an initial 5 minute phone call, then whatever the price is, the client is overpaying for ink and paper because that is all it is worth.

Any qualified attorney will need to have an initial meeting or obtain thorough intake information from a prospective client before being able to properly assess what documents are most appropriate and what provisions should be included in those documents.

Often people make a mistake in thinking that a cheap online service will do the trick. Like most things, you get what you pay for and by not having a professional assess your situation you are likely putting your assets at risk unnecessarily.

The cost of legal services will vary based on the custom-tailored individual plan.

So instead of writing a short article with a price tag to answer the question, we started with – “how much does an estate plan cost?” – I will try to explain the factors that drive the cost of a proper plan so that you can begin to understand what to expect.

Below are some of the factors that will affect the cost of an estate plan, which may include

• Preparation of a trust
• The type of trust that is best for the client
• Determination if a trust is even the appropriate solution for a client

1. The client’s assets

• The structure of an estate plan will depend on what the client owns, the client’s “assets”. A trust is a vehicle to hold assets. The assets that will fund the trust need to be carefully identified.
• If a client’s assets are primarily retirement assets and the client has minimal non-retirement assets, a trust may possibly not be the best solution. In such a case, we may proceed with general estate planning documents (i.e. will, power of attorney, health care proxy, etc.) and merely give advice for the client to structure his/her estate planning without further legal costs and minimal attorney involvement.
• If we were proceeding with a trust, and a client owns his/her home, and perhaps an additional vacation home or investment property, the legal fee would include preparation and recording of deeds and other transfer documents to transfer the property (or properties) into the trust which can add several hundred dollars or more to the plan, (plus recording fees set by each county).
• We always evaluate whether a trust is a solution, and what type of trust, based on the total value of assets that the trust is expected to be funded with. Greater values may require more extensive drafting to address minimizing tax impact, which would increase the legal fee, but greatly save potential tax liability.
• We may determine that a trust is not the most economical or efficient vehicle in the client’s estate plan if his or her asset value is too low.

2. Family situation

• Planning for a married couple may differ significantly than planning for a single person.
• Planning for someone with children may differ from planning for someone with no children.
• Planning for someone with a special needs child or other dependent beneficiary will certainly differ from planning for someone with no special needs or dependent beneficiaries.
• Medicaid planning may involve setting up an irrevocable trust for a client. However, if I learn in the course of a consultation
  • That my client has no close family and/or confidante that would be appropriate to serve as a Trustee of my client’s trust, then such a trust may likely not be the best solution to protect my client’s interests.
  • That there is a special needs child, a child that lives in the residence, or a spouse that will need nursing home care in the near future, these factors would all directly impact our analysis and course of action to be taken.

In the case with Susan and Nancy:

Susan has two children with whom she has a very close relationship. They were both good candidates to serve as her trustee and be involved in her estate planning. This fact, combined with consideration of the additional facts particular to her situation, it was obvious that a trust was a good solution to meet her objective.

Nancy, on the other hand, has a strained relationship with her one son. Her only daughter is not very financial savvy and has a controlling husband. She would be uncomfortable involving either of them in her estate planning, and particularly, providing them with details of the value of her assets and giving them control of her assets in a fiduciary capacity.

Considering these issues, combined with other factors carefully assessed, we determined that an irrevocable asset protection trust was not necessarily a good plan for Nancy, and there were other ways to achieve her objectives.

3. Age and Health

• Age is an important factor to consider. Medicaid trust planning involves the need to include additional people in a client’s plan, that will have knowledge and control of the assets the client is protecting. Further, and more importantly, the client is relinquishing direct control of their assets, in exchange for asset protection. With some assets, like a home, this will have little impact on the client’s everyday living. They still live in their home, and still pay the bills. However, with investment accounts, for example, they will no longer be the authority to make investment decisions, or withdraw funds. Some people are not willing to give up this control despite knowing the tradeoff of asset protection. A younger healthy person would be less inclined to do such planning and may prefer to revisit this when he/she is older.
• Health is important too. There is a five-year lookback for Medicaid nursing home eligibility. Meaning, if a person gives away their assets (money, their home), without receiving fair market value compensation, they will be subjected to a penalty in an amount equal to the value of their “gift,” the assets that they transferred.
• Giving money to a child or transferring to an irrevocable trust are both considered “gifts” that would be subject to a penalty.
• If a client is not in good health, and there is a strong possibility that a nursing home may be on the horizon, it would not necessarily be the best choice to set up an irrevocable trust.
• We may consider other methods, perhaps utilizing an exception to the transfer penalty, if available, or another strategy depending on the form and value of the assets. The direction decided upon would impact the cost of the estate plan.

4. Lifetime Planning Needs

• Perhaps the client has an excellent long term care insurance plan. An irrevocable asset protection trust may not be necessary at all.
• What if the client already had a home health aide, and is likely moving to another state in the near future, where there is a five-year lookback for Medicaid home care? An irrevocable trust can be a very bad choice and there may be much better alternatives.

These factors would be considered and would impact the type and cost of the estate plan.

5. Estate Distribution Wishes

• The cost of preparing an estate plan will also vary based on the distribution scheme in a client’s plan. If a client intends on distributing his/her estate equally to his or her children without any trust planning, this would be basic planning and would not increase a fee.
• If a client did not proceed with trust planning, but in their “basic” will, directed very detailed distribution instructions or a distribution scheme that would require trusts in the will, perhaps in the case of a second spouse, or one child that is not financially responsible, a substance abuser, has creditor issues, etc., this may involve more complex drafting, which may increase the legal fees.

6. Beneficiaries with Special Needs

• It is crucial to draft carefully when a client’s estate plan leaves assets to beneficiaries that either have special needs or receive government benefits to avoid disrupting the benefits they receive without compromising their inheritance. There are different ways to set up a plan to provide for such a beneficiary and the cost of preparing a will or trust may vary based on the option selected by the client.

The above are just some of the considerations that go into determining the most appropriate plan for a client and the legal fee for the services.

As you now realize, an estate plan is not a one-size-fits all process and a trust or will is not simply a fill-in the blank document.

Careful consideration has to be put into determining the specific estate plan for each client.

Whether a trust is the right option for a client, what type of trust is the best option, the provisions to be included in the trust and/or in a last will and testament must first be considered, and only then can an attorney draft an estate plan that is appropriate to meet the client’s individual needs.

While many attorneys will be able to quote a flat fee for the services once they determine what is needed, some attorneys work by hourly fee when drafting to anticipate the different turns, issues, and client decisions, along the way.

After a thorough initial consultation, my firm is able to quote a flat fee that includes drafting the documents, a follow up meeting to discuss the drafts, and execution of documents.

I must stress that we are able to do this only after thoroughly understanding the client’s needs which I learn during their free client consultation.

Depending on

• The type of trust
• Other estate planning documents required
• The objectives of the client
• The specific family, health and financial details
• Other significant factors

the fee can range between $1,000-$3,000 for a basic plan (which usually includes a will, power of attorney, health care proxy, etc.). When trust planning is appropriate the fee can range from approximately $3,000 to $8,500.

When a client retains an attorney for their estate planning, they are not paying for a fill-in-the-blank legal document that they can download on a legal forms website.

If you read this far, then you are a well-informed and savvy consumer and what you should keep in mind is that when retaining an estate planning attorney, you are paying for an assessment of your actual needs, the attorney’s advice and formulation of the best strategy to obtain your goals.

The value is in the protection of your hard-earned assets and the quality of life and peace of mind you will have.

How much do you stand to lose if your assets remain at risk?

What will be the effects if your assets were wasted by an irresponsible or substance abusing child?

Answering these questions is truly how you value the cost of an attorney in creating a plan that protects you from these unforeseen (or foreseen) circumstances.

So back to the original question, How much does an estate plan cost?

After our office’s thorough evaluation of Nancy’s situation and determining that an Irrevocable Asset Protection Trust was the wrong plan for her, we developed a more simplified plan to address her personal objectives. Nancy was able to create an inheritance distribution scheme for her $1.2 million estate as well as lifetime documents that empowered her to choose who would be making critical decisions on her behalf instead of the court making those decisions for her. Nancy’s estate plan was much simpler so her fees were on the low-end of what an estate plan can cost. However for $1,500 she now has peace of mind as well as legal protection for her well being and assets.

Nancy’s friend Susan on the other hand required a more complex plan. After our office’s thorough evaluation of Susan’s situation and creating a strategy for her, Susan would now be eligible for Medicaid to pay for her long term care while protecting her home and several brokerage accounts totaling more than $1,900,000. Our legal fee to help Susan obtain this amazing result was a mere $5,700.

In conclusion, regardless of your situation, getting a professional’s opinion on your situation can prove to be the best decision you could make in your aging planning. The great news is that my office offers free in-person consultations and you have absolutely nothing to lose. Simply call (516) 347-7356 to schedule your free consultation today.

I look forward to meeting you at a consultation soon.

Don’t Underestimate the Just In Case

The benefits of a highly detailed, comprehensive power of attorney are numerous. A power of attorney is a document that appoints an agent to act on behalf of the principal. The “principal” is the person who is creating the power of attorney. The principal is appointing an “agent” to have the authority to take legal or financial action on the principal’s behalf. Any action taken by the agent, must be for the benefit of and in the best interest of the principal. A power of attorney not only ensures that there is someone that can handle a person’s legal and financial affairs if they cannot, but also gives the principal the control to choose who that person will be.

A Power of Attorney is specifically useful when a person loses capacity as a result of illness or dementia in old age. Unfortunately, many powers of attorney that are not drafted by an Elder Law attorney, are more general in nature and don’t include specific provisions needed to successfully address the legal and financial needs of our senior population. Once a person has no capacity, it is too late to create a power of attorney. Without a power of attorney, if the person loses capacity no one can take care of a person’s legal and financial matters unless their loved ones seek guardianship through the court system. Guardianship proceedings can take months, can be very expensive, and ultimately, a court determines the guardian.

This post will discuss the benefits of a comprehensive, detailed power of attorney, including some of the provisions that should be included.

It is crucial to emphasize that the proper use of a power of attorney as an estate planning and elder law document depends on the reliability and honesty of the appointed agent. There is naturally a concern about potential financial exploitation with a power of attorney, but even though such risks exist with a power of attorney, there are great benefits to one individual (the principal) privately empowering another person (the agent) to act on the principal’s behalf to perform certain financial functions. Of course, it therefore must be stressed that the agent chosen by the principal must be a reliable, honest and trustworthy choice.

Another important preliminary consideration about powers of attorney is “durability.” Powers of attorney are voluntary delegations of authority by the principal to the agent. The principal has not given up his or her own power to do these same functions but has granted legal authority to the agent to perform various tasks on the principal’s behalf.

Having covered the explanation of what a durable power of attorney is, let us look at the top benefits of having a comprehensive durable power of attorney.

1. Provides the Ability to Choose Who Will Make Decisions for You (Rather Than a Court).

If someone has signed a power of attorney and later becomes incapacitated and unable to make decisions, the agent named can step into the shoes of the incapacitated person and make important financial decisions. Without a power of attorney, a guardianship or conservatorship may need to be established, which involves the court system, delays the ability of loved ones to provide what could be urgently needed assistance to the incapacitated person, and can certainly be very expensive.

2. Avoids the Necessity of a Guardianship or Conservatorship.

Someone who does not have a comprehensive power of attorney at the time they become incapacitated would have no alternative than to have someone else petition the court to appoint a guardian or conservator. The court will choose who is appointed to manage the financial and/or health affairs of the incapacitated person, and the court will continue to monitor the situation as long as the incapacitated person is alive. While not only a costly process, another detriment is the fact that the incapacitated person has no input on who will be appointed to serve.

3. Provides Family Members a Good Opportunity to Discuss Wishes and Desires.

There is much thought and consideration that goes into the creation of a comprehensive power of attorney. One of the most important decisions is who will serve as the agent. When a parent or loved one makes the decision to sign a power of attorney, it is a good opportunity for the parent to discuss wishes and expectations with the family and, in particular, the person named as agent in the power of attorney.

4. The More Comprehensive the Power of Attorney, the Better.

As people age, their needs change and their power of attorney should reflect that. Seniors have concerns about long-term care, applying for government benefits to pay for care, as well as choosing the proper care providers. Without a power of attorney specifically allowing the agent to perform these tasks, an agent’s authority would be limited and precious time and money may be wasted.

5. Prevents Delays in Asset Protection Planning.

A comprehensive power of attorney should include all of the powers required to do effective asset protection planning. If the power of attorney does not include a specific power, it can greatly dampen the agent’s ability to complete the planning and could result in thousands of dollars lost. While some powers of attorney seem long, it is necessary to include all of the powers necessary to carry out proper planning. It is recommended to have an Elder Law Attorney prepare your power of attorney to ensure that the powers required to do effective asset protection planning are included.

6. Protects the Agent From Claims of Financial Abuse.

Comprehensive powers of attorney often allow the agent to make substantial gifts to self or others in order to carry out asset protection planning objectives. Without the power of attorney authorizing this, the agent (often a family member) could be at risk for financial abuse allegations.

7. Allows Agents to Talk to Other Agencies.

An agent under a power of attorney is often in the position of trying to reconcile bank charges, make arrangements for health care, engage professionals for services to be provided to the principal, and much more. Without a comprehensive power of attorney giving authority to the agent, many companies will refuse to disclose any information or provide services to the incapacitated person. This can result in a great deal of frustration on the part of the family, as well as lost time and money.

8. Allows an Agent to Perform Planning and Transactions to Make the Principal Eligible for Public Benefits.

One could argue that transferring assets from the principal to others in order to make the principal eligible for public benefits—(i.e. Medicaid for long term care)-is not in the best interests of the principal, but rather in the best interests of the transferees. In fact, one reason that a comprehensive durable power of attorney is essential in elder law is that a Judge may not be willing to authorize a guardian to protect assets for others while enhancing the ward/protected person’s eligibility for public benefits. However, that may have been the wish of the incapacitated person and one that would remain unfulfilled if a power of attorney were not in place.

9. Provides Immediate Access to Critical Assets.

A well-crafted power of attorney includes provisions that allow the agent to access critical assets, such as the principal’s digital assets or safety deposit box, to continue to pay bills, access funds, etc. in a timely manner. Absent these provisions, court approval will be required before anyone can access these assets. Digital assets are also important because older powers of attorney did not address digital assets, yet more and more individuals have digital accounts.

10. Provides Peace of Mind for Everyone Involved.

Taking the time to sign a power of attorney lessens the burden on family members who would otherwise have to go to court to get authority for performing basic tasks, like writing a check or arranging for home health services. Knowing this has been taken care of in advance is of great comfort to families and loved ones.

Conclusion

In addition to this discussion of What is a Power of Attorney and Why Is It So Important to Have This Estate Planning Document, see my article Don’t Underestimate the Just in Case. Nobody can predict when they might need a Power of Attorney (if ever), and what specific actions an agent would need authority to do, therefore, it is so essential to have a comprehensive power of attorney to be prepared for all possible situations. Every situation is unique and what might never be needed for one person, may be a crucial provision in the Power of Attorney for another person. The planning goal is to have a power of attorney in place that empowers a succession of trustworthy agents to do whatever needs to be done in the future.

The Unpopular Topic of Discussion Every Family Needs to Have

Just bringing up the possibility of someone in your family becoming mentally or physically incapacitated is often difficult. We tend to think of only the very elderly needing long-term, hands-on care, but a recent report by the Alzheimer’s Association found that one in ten Americans age 65 or older currently have Alzheimer’s. With the baby boom generation aging and people living longer, that number may nearly triple by 2050. Dementia isn’t the only reason for long-term care, of course, but almost everyone knows someone already affected by it.

Waiting too late to plan can throw a family into confusion about what the Mom or Dad would want, what options are available, and what resources can help pay for care. Rushed decisions are often the most costly. Having the courage to discuss the possibility of incapacity now can go a long way toward being prepared should that time come. By the way, because anyone can become incapacitated at any time due to illness or accident, the entire family would benefit from planning for every family member.

Planning Considerations to be Discussed

Care Options: Depending on the type and expected duration of care needed, options range from in-home care to adult daycare to assisted living facilities to nursing homes. Assistance with activities of daily living (ADL), which include eating, bathing and dressing, are generally not covered by health insurance. Professional care can be expensive; the annual cost for assisted living on Long Island in 2018 was on average over $60,000. Care for those with dementia can last longer and cost more. Family caregivers, who provide the bulk of in-home care, are often unpaid, and the emotional and financial tolls can be considerable. Your discussions need to realistically consider family finances and circumstances.

Finances: Where will the money come from to pay these expenses? What resources will be available? Health insurance does not cover assisted living/nursing home facilities or help with ADLs. Medicare covers some in-home health care and a limited number of days of skilled nursing home care, but not long-term care. Medicaid, which does cover long-term care, was designed for the indigent; to qualify, the person’s assets must be spent down to almost nothing. VA benefits for Aid & Attendance may be available for veterans and their spouses. If there are significant assets, you can self-insure and pay the costs as you go. Home equity and retirement savings can also be a source of funds. If you want to protect these assets for your family, long-term health insurance may be an option. (Premiums are much lower when you are younger.)

Documents: Everyone age 18 years and older needs basic legal documents. These include an advance health directive or healthcare power of attorney (legally appointing another person to make healthcare decisions for you if you cannot make them yourself); a durable financial power of attorney (legally appointing another person to make financial decisions for you if you cannot make them yourself); and a trust and/or will.

Having the Discussion: Your parents may be harboring secret fears about what will happen to them if they need long-term care. Talking about this honestly, listening to their fears and desires, and putting a plan in place before it is needed can help reassure them (and you). If you want to talk to your children, reassure them that you are just being realistic. Starting with a story about someone you know or an article you read can be a good way to break the ice.

How to Get Help

An attorney who specializes in Elder Law has already helped many families in these same situations, and will be able to make recommendations that will save you considerable time, money, and stress. He/she can also work with other advisors (financial/investment, insurance, CPA, etc.) to help put together the best plan for your family’s circumstances.

How to Take Care of Yourself as You Take Care of Others

Raising your kids, working, trying to take care of yourself, and now caring for an aging parent? That makes you part of the Sandwich Generation. You are not alone—almost half of America’s 40- and 50-year-olds are in the same boat.

Most of us have adjusted to balancing children, work and finding some time for ourselves. But when we add caring for an aging parent, it often becomes too much. And usually it’s the “me” part that is sacrificed…until you hit burn out.

Here are some ways to leverage your time and resources so you can also take care of yourself.

Enlist Your Kids

Even the smallest child can spend charming one-on-one time with a grandparent. If your parent lives with or near you, they can spend time together in person. If your parent is not near you, they can Skype on the computer, use FaceTime, or play multi-player online games. Your children, no matter what their ages, will benefit from spending time with Grandma or Grandpa, they will see how you value and care for aging family members—and you will get some extra time to return phone calls, make dinner, or even catch a quick nap!

Ask About Options at Work

Check with your employer’s human resources department about resources that might be available to you. Depending on how long you expect to be caring for your parent, there may be a multitude of options available to you, including elder care research and referral services, flex time, even working from home options. The Family and Medical Leave Act (FMLA) calls for eligible employees to receive 12 weeks of unpaid job-protected leave. (Private employers with less than 50 employees are exempt.)

Seek Assistance

There are legal and community resources that can help you make the best care and financial decisions for your parent. A local Elder Care attorney can prepare the necessary legal documents and help you maximize your parent’s income, long-term care insurance and retirement savings, and qualify for Medicaid benefits, if applicable. He or she will also be familiar with various living communities in the area and in-home care agencies. He or she may also recommend speaking with other professionals that can help address additional concerns such as verifying/disputing insurance claims and medical billing or even simply taking your parent on social outings to free up some of your time while simultaneously providing companionship and stimulation to your loved one.

Find Your “Me” Time

Stress is your biggest enemy and you have to find ways to reduce it. Joining a caregiver group, in person or online, will let you share your questions and frustrations, and learn how other caregivers are coping. Don’t be afraid to ask favors of friends and other relatives, such as picking up your kids while you go to the doctor with your parent. You could also learn to order in dinner every now and then without feeling guilty. Learn what you need to maintain your stamina, energy and positive outlook. That may include regular exercise (a yoga class, walk or run), a weekly outing with friends, or time to read or simply watch TV.

Long term care and estate planning

Ensuring that your parents have a proper estate plan set up will not only ensure smooth and efficient administration after a parent’s death, but can tremendously relieve a child’s hardship during times of long term care needs. A visit to an elder law attorney to review their plan will provide the peace of mind that documents are in place to help a parent manage their affairs during times of incapacity, and also ensure preservation of assets should long term care be required.

Our office would be happy to review your parents legal and financial situation, giving you and your parents peace of mind to allow you to concentrate on what is important in life, spending stress-free quality time together. Call us at (516) 347-7356">(516) 347-7356

Many people have been told that it is important for people to “avoid probate.” But just because people may have heard that term, doesn’t mean they know exactly what probate means, why it can be a problem or how to successfully avoid it. In this post, we will take a look at the term probate to understand exactly what it means, and what the process includes.

What is Probate?

The term probate most literally means “to prove” a will. Today it covers the entire legal process necessary to settle a person’s estate after they die. The appointed representative (usually a family member) opens the probate case in court. With the court’s help, they will work through all of the financial business that the decedent left behind. For example, probate includes disposing of personal property, money, real property or anything else that the deceased owned at the time of their death. Probate also deals with any debts that were in existence at the time of death.

Why is Probate Such a Negative Thing?

Probate is not inherently evil. It is simply a system that was created to oversee the way estates are handled. However, there is some truth when people say that probate should be avoided, if possible. Some of these cons are listed below.

A Lack of Privacy

Probate cases are filed in the court and are in the public record. If for any reason a person wants to maintain a sense of privacy after they die, it could be a good idea to avoid probating the estate in court. Famous people or other potentially controversial people usually don’t want their financial and family affairs dragged out into the open.

Probate Can Create Family Disagreements

One reason that wills and estates are probated in court is to allow interested persons the chance to represent their own claim on the estate by challenging or contesting a will that does not favor them. For people with complicated family dynamics, unpopular second marriages or estranged loved ones, avoiding probate should be a top priority. When an estate is handled through non-probate channels, it becomes much less likely that a decedent’s wishes will be challenged.

Probate is Slow

Like most things that end up in court, probate can be time-consuming. In more complex estates, the entire process can last months or years. And, while the family waits for this time to pass, the decedent’s assets or property may be slowly losing value or be lost completely.

Probate is Costly

Probating an estate requires the help of a competent probate lawyer to facilitate the matter. Since the process requires court appearances and extensive paperwork, the legal fees can mount up quickly. With proper pre-planning, much or all of this cost may be avoided.

How Can Families Prevent the Need for Probate?

Creating a smart estate plan is the best way to avoid probate. You and your attorney can work together to draft the proper legal documents and carefully time asset transfers.

Revocable Living Trust

The revocable living trust is an instrument which dictates the management or distribution of property. The property is transferred in title to the trust during the owner’s lifetime. The property owner also chooses someone to act as trustee, an appointed fiduciary who will manage the trust property and any distributions after the death of the trust’s creator.

The other good thing about a trust is that there is no need to involve the court in any way. There is nothing to file and it does not need to be submitted to the probate court.

Joint Title

Another way to avoid probate hassles is by placing your assets into joint ownership with your future beneficiaries. This way, when you pass away, the ownership interest will automatically transfer to the joint owner.

Payable-On-Death and Transfer-On-Death

Payments on death accounts (POD) have a designation which names a person who will receive the assets in the account when the original account owner dies. At the same time, transfer on death (TOD) is a designation on the title or deed to a piece of real estate or a car which will automatically change ownership once the owner dies.

Don’t Be Tempted to Give Away Your Assets

Some people assume that the easiest way to avoid probate is to give everything away before you die. However, doing this could cause problems for seniors when they may need to qualify for assistance for long-term care. It could further have adverse tax consequences.

Hopefully, these tips will help you and your family plan responsibly for the future. Our office would be glad to review your existing plan or help you start your planning today. (516) 347-7356">Call Now! To learn more, read our article below.

Don’t Underestimate the Just In Case