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Syracuse Elder Law Blog

Revising an estate plan during a divorce

When people in New York experience a major life change, such as a divorce, it might be necessary to also make changes to their estate plan. Some changes may be made during the divorce. For example, if the spouse has been chosen to make healthcare decision if the person is incapacitated, an individual may want to choose someone else for this role. The person may also want to consider whether the financial power of attorney should be changed. A spouse who is named in this document will be able to control all the person's assets in the event of incapacity.

It is important to understand what can and cannot be altered during a divorce. For example, it might not be possible to alter a document such as a beneficiary designation until after the divorce is final. Wills and trusts might need to be changed if the person is able to do so. A person might not be able to entirely leave a soon-to-be divorced spouse out of a will, but some leave only the minimum required by the state. Changes to the trust may include removing gifts to the spouse's family members.

Estate planning provides protection for the future

When people in Onondaga County think about the future, it can be important to make preparations to protect one's assets and one's loved ones. However, despite the importance of estate planning to meet those goals, at least 40 percent of older Americans do not have basic documents in place that can help them ensure their financial and health matters are addressed if they become incapacitated or pass away. When people don't have the framework in place to protect themselves, they can become more vulnerable to those with ill intent; 20 percent of Americans over 65 are the victims of financial abuse.

There are several key estate planning documents that everyone should have on hand, including a will, a power of attorney for financial issues, an advance health care directive and a health care power of attorney. A will directs how property will be passed on after the person passes away, while the other three documents can help people to make important decisions in case a person is incapacitated. These can include making key health care and financial decisions, so it is important to designate a trusted person with these responsibilities.

Is your parents' estate at risk of going up in smoke?

Maybe your parents worked hard for years to build a family business that has grown beyond anything they thought possible, and they have been able to provide very nicely for you and your siblings. They have been open with everyone from the beginning about who stands to inherit what. For instance, maybe they slated you to get their house, while your siblings split ownership of the family business.

So far, so good, right? Hopefully so, but it could be that you and your siblings will never see anything if your parents skip some precautions to ensure the carrying out of their wishes. Their estate could be at risk of going up in smoke to pay for long-term nursing care, medical bills and much more. One big risk factor is a lack of well-thought-out estate planning.

How to avoid common estate planning errors

Many New York residents are prone to making mistakes when creating wills and other estate planning documents. Unfortunately, these mistakes can result in larger tax bills or family members being denied inheritances. One common mistake is not naming a contingent beneficiary on a retirement or insurance account. Failing to name a contingent beneficiary means that the asset will go directly to the estate itself. That could mean leaving it exposed to creditor claims or a probate court.

It is also a good idea to name multiple beneficiaries to an asset. This can prevent legal issues if the primary beneficiary also dies. If money is left directly to a minor, there should be clear limitations as to how the cash can be used. Otherwise, a parent or whoever is handling the money on behalf of the child or grandchild could use it in opposition to the deceased person's wishes.

Why create estate plans

No matter how much wealth New York resident may have, it is important that he or she develops an estate plan. An estate plan that is tailored to a person's unique situation can provide him or her with more privacy, control and security of their legacy.

In cases in which a person has assets that are highly valued, they will have to pay state estate taxes, and in many cases, federal estate taxes as well. Probate fees may also another expense tacked on to the estate. To make the wisest choices regarding when, where and to whom one's assets should go, it is advisable to consult with an attorney who practices estate planning law. The attorney can help with determining which estate planning strategies and devices should be used to lower inheritance taxes and probate costs.

A power of attorney can protect a loved one from financial abuse

You knew your parents to be intelligent and financially savvy all their lives. You went to them when you had a question about a home loan or another difficult monetary issue. As such, you felt confused and frightened when you found out they were recently taken advantage of by a telephone scammer – a common ruse that both of your parents should have been able to see through. This is unfortunately not an uncommon issue for many New York residents. Senior citizens are frequent targets of scammers and other dishonest people.

Why is this so, you may wonder? You would hope that financial scams against vulnerable senior citizens are few and far between, since someone would have to be particularly unscrupulous to steal from the elderly. However, the National Adult Protective Services Association reports that one out of 20 senior Americans is a financial abuse victim. Many thieves and scammers see them as easy targets because elderly people may be naïve to new and sophisticated con methods. They may also suffer from cognitive decline due to Alzheimer’s disease, dementia and other age-related conditions.

Strategies for developing and communicating an estate plan

A New York resident who has assets to share with family members, charities or associates should plan the broad strokes of their estate plan before delving into the details of the paperwork. The estate holder should establish their goals for wealth, such as funding educations or creating inter-generational wealth. At the same time, they could benefit from communicating their values and goals to heirs.

Approaches to asset distribution fall into the three categories of fair, equal or equitable. Fair estate divisions grant heirs access to funds to pursue their goals on their own terms. For example, children might receive money to pay for trade school or a university education depending on their interests and talents. Although the monetary amounts would be different, each heir receives a fair distribution. Equal divisions simply grant each heir the same portion of an estate. An equitable approach, however, could take into account one heir's contributions to growing a business or caring for an elder. When such a person receives more of an estate, the distribution equitably recognizes extra efforts or sacrifices.

How to protect assets into old age

According to a survey from Wells Fargo, 20 percent of Americans who are 65 or older become victims of financial abuse. However, only 10 percent of people in that age group think that it can happen to them. Older New York residents may be more vulnerable to such abuse if they lack estate plan documents that can help manage their finances if they are incapacitated.

Ideally, these documents will be kept someplace that is both secure and accessible to family members such as an online server. When preparing an estate plan, it is a good idea to create a set of priorities and start working on those items first. For instance, a person's top priorities could be writing a will, naming beneficiaries and titling assets properly. Powers of attorney for both health care and financial matters are among the most important estate plan documents a person should have according to Wells Fargo.

How to help a parent with dementia create estate plans

The best time to create estate plans is yesterday. Anyone can benefit from them regardless of age or financial status. However, life happens, and estate planning may not come up until the senior years for some folks, including your own parents.

It is still not too late for them to get their affairs in order, but what if your mom or dad has dementia? How does that affect the ability to create legal documents that will protect your parent's assets and care?

What to know about creating and managing a trust

A common mistake that people make when creating a trust is not picking the right person to oversee it. New York residents may prefer to have a bank or some other entity oversee it instead. These entities could have a greater ability to act as a fiduciary and have a better understanding of the other legal and administrative requirements related to being a trustee.

Using a bank or other financial institution to fill this role can be helpful if a person has long-term investments or other complex assets to manage. However, it is generally a good idea that the trustee knows both the grantor and the beneficiaries. This gives that person a better idea as to what each party wants or needs. Therefore, it can make it easier to make decisions about how to distribute or otherwise handle an asset. With a corporate directed model trust, the role of trustee can be split into two different positions.