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Trusts and Estates

TRUST ADMINSTRATION & PROBATE

After the death of a loved one, it is important to resolve disputes surrounding an estate in as professional a manner as possible. At the Law Offices of Nathan Pinkhasov, PLLC, our attorneys represent clients in a manner that helps ensure that the deceased's assets are distributed correctly and as promptly as possible.

Probate and trust administration does not have to be a confusing and overwhelming process. With the right legal counsel and the appropriate information, this process can be relatively simple, handled by our attorneys:

  • Probate: A legal process through which a person's assets, which are owned individually, are transferred after death.
  • Trust Administration: The process where non-probate assets are distributed pursuant to the terms of the trust instrument.

Litigating Disputes That May Arise During Probate and Trust Administration

After the death of a family member and during probate and trust administration, disputes can arise among the heirs. The sooner these disputes are resolved, the better. Any dispute can delay the distribution of assets greatly and lead to drawn-out legal battles.

 

ESTATE PLANNING

People tend to shy away from Estate Planning, perhaps because it forces us to confront our own mortality. Having a proper estate plan in place however, is one of the most responsible and loving things you can do for your family. Depending on your unique circumstances and the size of your estate, effective Estate Planning requires the skill of an experienced attorney to guide you through the process.

One of the key documents to any Estate Plan is the Last Will and Testament. In this document, the person making the will (the testator) formally sets forth their wishes regarding their estate, who will receive which assets, and can even appoint a guardian for their children. A will is essential regardless of the size of your estate. Without a valid will in place at the time of your passing, the courts would be forced to step in and distribute your estate based on the laws of intestacy, also known as Intestate Succession. The result of the court making these decisions based on state law may be very different than what you would have intended.

Our lawyers can explain to you that another useful tool to have in your estate plan is a Trust. A Trust is a relationship where one person holds title to property pursuant to an obligation to use or keep the property for the benefit of another. A Trust is an effective way to avoid the Probate process. Without a Trust, upon your passing your Will amongst many other documents are submitted to the Surrogates Court for verification, and for an executor to be appointed. The executor then inventories the estate, pays any debts, and distributes the assets to the heirs. With a Trust however, the Probate process is eliminated, and the beneficiaries receive their distribution straight away. This not only saves money in probate costs, but substantial time as well.

An Advanced Health Care Directive or AHCD is an important document to be considered when putting together an estate plan. It is a sad fact that many people do not prepare for an unexpected tragedy. This document provides specific written instructions on how you would like your health care managed in the event that you cannot communicate your wishes. Not having this document in place in place in the event of a tragedy can put a tremendous burden on your physicians and loved ones who will be forced to make these difficult decisions for you.

This document is often created in conjunction with a Power of Attorney for Health Care (Healthcare proxy). This document appoints an attorney in fact to make decisions on your behalf in the event you are unable to do so. Lingering in a vegetative state with no hope of recovery will not only put undue emotional strain or your family, it will also diminish the assets of your estate.

There are many aspects of Estate Planning to consider, and the process can be complicated. It is important to consult with our lawyers to guide you through the process.

 

ASSET PROTECTION

Medicaid Asset Protection Trusts

Many clients are forced to spend their final days in a facility simply because they ran out of money to pay for home health aides. Additionally, for married couples, the home care option may protect the spouse from compromising their own health and finances with the heavy burden of caregiving in their later years.

When the client is turned down for long-term care insurance, or is unable to afford the premium, the next best option is the Medicaid Asset Protection Trust (MAPT). Making assets joint with adult children offers no protection since Medicaid considers all of the jointly held assets to be available for the care of the ill parent, except to the extent the child can prove the amount of their actual contribution. If someone is just getting older, can’t or won’t get long-term care insurance and wants to plan ahead to protect their assets, the best option is to set up a Medicaid Asset Protection Trust (MAPT).

The MAPT names someone other than you or your spouse as the trustee, usually one or more adult children, and limits you to the income. The principal must be unavailable in order for it to be protected. These trusts are ideal for the family home as well as for assets the client is only taking the income from or is simply reinvesting. The client’s lifestyle is not generally affected since they continue to receive their pension and Social Security checks directly, they keep the exclusive right to use and occupy the home and they preserve all the tax exemptions on the home. The trust may sell and trade assets through the trustee. Nevertheless, the parent retains some measure of control by reserving the right to change the trustee in the event of dissatisfaction for any reason.

The MAPT is subject to a look-back period of up to five years. This means that if assets are transferred and the client needs nursing home care any time after five years have passed, the assets in the trust are protected. Nevertheless, it always pays to get started, since you get credit for the time you accumulate, even if you don’t make the five years. For example, if the client needs nursing home care, say, after only four years, then they would only have to pay for the one year that’s left.

The Medicaid Asset Protection Trust is also flexible. You may sell the home, the money is paid to the trust, and the trust may buy a condominium, for example, in the name of the trust so it is still protected. The trust may buy and sell and trade stocks and other assets. IRA’s and other qualified plans stay out of the trust since the principal of all such retirement plans are exempt from Medicaid. These types of assets avoid probate as they go directly to the designated beneficiaries at death.


SUCCESSION PLANNING

Business "succession planning" is estate planning for businesses.  It assures an orderly succession to the ownership and management of a business in the event of a disability, death, falling out among the business owners, or any number of other circumstances that could potentially interrupt the flow of business.  In order to ensure that a lifetime of work is not destroyed, the business participants should have a shareholder or partnership agreement and a buy-sell agreement in place.

While most business owners intellectually agree with the need for business succession planning, often they procrastinate.  Regardless of the cause for the delay, i.e., not knowing where or how to begin, the misconception that no one can do as good a job, or even an inability to relinquish control, the result is the same: an end to a business that could have continued to prosper if business planning had been undertaken.

Creating a business succession plan before a crisis occurs will help protect each business owner and the business itself.  Unfortunately, once the crisis occurs, it is unlikely that an equitable agreement can still be reached.  If you have not done so already, there is no better time than now to put a business succession plan in place.  Please contact our attorneys to assist you.