Wills, revocable trusts, and irrevocable trusts are all estate planning devices. Revocable trusts are a type of trust that can be changed, modified, or revoked at anytime. This type of trust allows you to change your mind with regard to all aspects of the terms of the trust. These trusts are very flexible.

Uses of a revocable trust:

1.  Revocable living trusts avoid probate. The assets in the trust at the time of the death of the individual who made the trust pass directly to the beneficiary. The trust does not have to be probated.

2.  It is private document. Wills need to be probated. This opens up the terms of the will to review by a court. Once the will is filed with the courts it becomes a public document and other individuals can obtain copies of the will. An example is Jacqueline Kennedy Onassis’s will in Manhattan. So many people wanted to see it that it was displayed to the public mounted it under plexiglass. The details of your assets and the individuals who receive your assets remain a private matter.

3.  It establishes a plan that deals with mental disabilities such as Alzheimer’s disease and other mental illnesses that effect seniors. When you place assets in a revocable trust and the person who created the trust becomes disabled, the trustee or alternate trustee supervises the trust and distribution of the assets therein. If you do not have this type of trust or a power of attorney, it becomes necessary for your loved ones or next of kin to bring a guardianship proceeding under article 81 of the New York Mental Hygiene Law to appoint a guardian for you.

Should you have questions regarding revocable trusts contact the trust attorneys at the law office Elliot Schlissel at 1-800-344-6431 or by email.

Do you have assets? Do you own a house? Have you been married more than once? Do you have children from more than one relationship? Are you concerned about what happens after your death to your spouse and/or your children? Are you single? All of the above individuals need a Will.

Estate contests often develop between children from the first marriage and the second wife. Issues arise when a man or a woman has children from more than one relationship. Sometimes loved ones have financial difficulty and the possibility of receiving assets in an estate brings out the worst in them.

There is a simple way to avoid unnecessary expensive litigation that can last from months or years. Write a Will! A Will states who your loved ones are, what your assets are and who will receive your assets at the time of your death. No one looks forward to dying. The thought of writing a Will is often an issue that individuals seek to put off. However, a Will should be written when you are competent and healthy not right before your death.

Attorneys that handle Wills & Estates prepare Wills. They are generally speaking inexpensive documents to have prepared. They simplify your end of life issues and allow your assets to pass in an orderly manner. Wills cut down on financial disagreements developing among your heirs and loved ones.

If you die without a Will your assets pass to your loved ones through administration proceedings. These proceedings can be time consuming and tedious. More than one person can request to be the Administrator of your estate. This can lead to arguments, bad feelings and increased attorney’s fees.

If you have assets or loved ones, you need a Will! Have it written by an attorney before you are too sick and old to deal with it.

Should you have questions regarding drafting a Will, feel free to call the Law Office of Elliot S. Schlissel to discuss these issues at 1-800-344-6431 or email us at schlissel.law@att.net.

Challenging an Invalid Will

December 9, 2009

Pursuant to EPTL § 3-2.1, a Will can only be probated if it conforms to the following requirements, among others:

  • Will must be signed at the end and initialed on every page in front of the witnesses.
  • The Will must be signed in the presence of at least 2 witnesses (Some states require 3)
  • The witnesses must also sign an attestation clause.
  • The “Testator” must “Publish” the Will by saying something like “This is my Will.”

A Probate judge in the Surrogate’s Court may invalidate a will based on several types of objections. If there is proof of undue influence, lack of testamentary capacity, duress, or undue influence, the Will will be invalid.

“Lack of testamentary capacity” means that the Will signer does not understand that what he’s signing is a Will, that he does not understand the nature and value of his property,  does not understand who the natural objects of his bounty are (meaning that normally one’s spouse and children are the natural recipients of his or her property after death), or that he does not understand the nature of the disposition he is making (i.e., to whom he is giving his property in his Will).

A decision came out on Monday which is a great example of someone who successfully used the “lack of testamentary capacity” objection to the probate of a Will. In that case, several siblings of a deceased man successfully blocked the probate of their brother’s Will because he lacked “testamentary capacity.”

As he lay dying in the hospital of liver disease, the man’s x-wife and her lawyer got the him to sign a Will that gave her all of his assets. He died of the disease just three days later. In Matter of Stachiew, 96211/2007/D, a Dutchess County Surrogate’s Court judge denied probate in this case,  holding that the proponent of the Will, the x-wife, had failed to prove that the decedent was sufficiently aware of the nature and extent of his property, what he was signing, and how he was changing his testamentary distribution plan through the Will. The judge found that the attorney had induced the decedent to sign the Will without regard for his ability to understand what was going on, and was not convinced by the attorney’s “self-serving” testimony to the contrary.

Cases like this illustrate how important it is that individuals hire a competent and ethical attorney who will take all reasonable measures to ensure that every requirement of New York’s Estates, Powers, and Trusts law is complied with.

Our office can assist you if you need help with:

Please call our office at 800-344-6431 or e-mail us for assistance.

Picture courtesy of worlddub.blogspot.com

If you, a spouse, or parent  think that you may need the services of a nursing home in the near future, you should know that there are some things you can do to plan for this possibility and help maintain some of the person’s assets.

Nursing homes can be very expensive. Residing on one can deplete $9,000 to $12,000 per month from one’s assets on a monthly basis. You can apply for Medicaid to assist with these bills, but they will only begin paying once the person has completely “spent down” their assets to$13,800 (in 2009) altogether.

There are steps that you can take which would allow you to preserve much of your assets for the next generation while still qualifying for Medicaid if and when nursing home services are needed.

When an individual applies for Medicaid, and the Department of Social Services is looking into whether the application has indeed depleted his or her assets down to almost nothing, they actually look up to five years prior to the application date to see if the person made any transfers to children or others in order to preserve their assets from Medicaid’s required “spend down” to poverty.

Elder law attorneys, such as the experienced lawyers at  The Law Office of Elliot Schlissel, can assist individuals in applying for Medicaid or, for instance, setting up an Irrevocable Trust that may allow a senior to preserve his or her assets from Medicaid’s “spend down” requirement throughout their lives.

We can personalize these trusts depending on each individuals circumstances.

For instance,  if someone has owned their home for a long time, such that the house has increased in value by $250,000 for individuals or $500,000 for married couples, and if the Irrevocable Trust does not appropriately deal with this increased equity in the residence, there can be significant tax liability when the house is sold.

Regardless of whether you need an Elder Law attorney to prepare a Medicaid application or create any other kind of Medicaid plan, you can contact our offices at 800-344-6431 or e-mail us with any questions or to set up a free consultation.

Picture courtesy of injuryboard.com.

Our office maintains a very large Wills, Trusts & Estates and general Elder Law practice. See the video above and our New York Wills and Trusts website for more information.

muslim-weddingProf. Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations Law.

He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.

He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void  if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.

The Surrogate held that the validity of the marriage in question is governed by New York law,  and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.

I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.

Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.

Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize  the “public acts, records, and judicial rulings” of other states. 

Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.

The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding  would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)

Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.

Picture courtesy of trendsupdates.com

This is the first post in a series of short videos by New York attorney Elliot S. Schlissel, Esq, providing basic information about important aspects of Estate Planning. This informational video is entitled, “Who Needs a Will.”

Mr. Schlissel’s is a leading Elder Law and Wills Trusts and Estates attorney in the 5 Boroughs of New York, Nassau and Suffolk Counties so we are pleased to provide this information to Elliot Schlissel New York Law Blog readers.

As always, you can receive legal updates from this site by subscribing by e-mail.

estate-planningSpurred on by financial abuse of the elderly, New York will change its laws with regard to executing a valid “Power of Attorney” (“POA”) document. The new law will be effective September 1, 2009, although POAs executed before that date in compliance with the old law will still be valid. 

This development makes it especially important to use an attorney who activly practices Wills, Trusts and Estate law and is familiar with these significant changes in the law.

The following are some of the changes that attorneys must now consider when drafting and handling executions of General POA documents starting Sept. 1st, pursuant to the new New York General Obligations Law §5-1501:

  • The principal’s signature of the POA document must be both notarized and witnessed by two disinterested witnesses.
  • The agent must also sign the power of attorney and his/her signature must be notarized (although the signature does not have to take place at the same time as the principal’s signature).
  • If a principal intends to give the agent power to make gifts on his behalf to anyone he has not been accustomed to giving to or which exceed $500 per beneficiary per year, he must simultaneously execute a Statutory Major Gifts Rider (“SMGR”).
  • The statutory “Caution to the Principal” and “Important Information for the Agent” sections must be included.

These changes were originally set to become effective March 1, 2009, but Gov. Patterson agreed to sign off on an extension to September 1st, 2009 in order to allow attorneys to fully familiarize themselves with these sweeping changes.  So give us a call if you are planning to execute a Will, Power of Attorney, Health Care Proxy, or other estate planning document.

Picture courtesy of sayrelaw.com.

GB_NorthwesternOne strategy that has been very effective for me in my law school career has been listening to audio summaries of many of my courses. In addition to preparing for class, briefing cases, outlining, and doing practice exams (indispensable!), I use my time driving to and from work and law school to listen to audio lectures of the courses I’m taking, especially as exams begin to approach. I’m working full time at The Law Offices of Elliot Schlissel, which is a great experience, and attending law school part time in the evenings. So time management is very important to me. I’m nearing the end of my 3rd year, out of four, in law school. So I have had the opportunity to listen to audio lectures on most of my classes up to this point.  The following are my reviews of the CD sets that I have listened to. I’ll give each one a rating of either (5) Excellent, (4) Good, (3) Average, (2) Bad, or (1) Terrible and my reasons.

civil-procedure-author-miller-sum-and-substance2Civil Procedure with Arthur Miller : (5) Excellent!  Everyone I’ve spoken to loves these as well. He is a great speaker with a great voice and he is a known expert on Civil Procedure. He has the ability to take a potentially boring subject and making it interesting and enjoyable to listen to. That is a major accomplishment. It’s the longest set of CDs I’ve gotten so far, numbering at 10. But it is well worth the investment financially and with regard to one’s time. It is an excellent review of the subject. I listened to these CDs between 4 and 6 times throughout the semester and it really helped me keep my understanding of the subject organized and clear during the exam. These are really indespensible. A must-buy!

contracts

Contracts with Douglas J. Whaley: (4) Good. He is also an interesting speaker and he gives some nice examples to illustrate some of the concepts. I found these CDs very useful and I would definitely recommend them to others.

 

property-cd-sum-substanceProperty with Julian Jurgensmeyer: (4) Good. Even more than Civil Procedure, this was a difficult course. And anyone who has taken Property understands why. The bulk of the class seems to focus on estates system from England 400 hundred years ago. This is a difficult and hard-to-relate-to system. Given the difficulty of the subject, Prof. Jurgensmeyer does about as good a job as seems possible when teaching the Rule in Shelly’s Case, the Rule Against Perpetuities (“the RAP”) and the like. Nothing that I know if can make this subject easy, but these CDs were definitely a good supplement to my class.

criminal-law-dressler-sum-substanceCriminal Law with Joshua Dressler: (5) Excellent+!+!  Criminal Law is already an inherently more interesting subject than some others and Prof. Dressler does an amazing job of clearly and engagingly explaining everything. Along with Arthur Miller, Dressler is the best of the best. It is definitely worthwhile to get these CDs. In fact, I wish Professor Dressler had lectures on every subject in law school. He is also the author of the casebook my professor used so it was nice to get a consistent perspective on things  from both the casebook and the lectures. A must-buy!

constitutional-law-chey-sum-substanceConstitutional Law with Mary Cheh: (4) Good. These CDs were very good and interesting. Prof. Cheh was extremely organized and explained everything clearly and is a good speaker. I would certainly recommend these lectures to anyone taking Con Law. There are a lot of controversial topics in this subject and I think she handled them fairly and even-handedly, such that one cannot really tell where she falls out on those issues. I cannot say anything negative about these lectures and I would definitely recommend them.

intellectual-property-thomas-sum-substanceIntellectual Property with  John R. Thomas: (2) Bad. I did not feel that he explained the concepts clearly and, although this is subjective, I found his voice to be annoying. Although Prof. Thomas does not come from an ostensibly Ivy League background, he speaks, laughs and makes jokes as if he goes to Harvard, his name is Biff, and he likes to play golf with his friends Thurston, Muffy, and Tiffany. Perhaps this lecture series was more beneficial to me than nothing at all, but even if so, it was not by much.

international-law-burr-sum-substanceInternational Law with Sherri Burr: (1) Terrible. Prof. Burr was an unengaging, disorganized speaker. For the first time, I was not able to even finish listening to these CDs. It sounded like she was reading from a low-quality  textbook. I would definitely recommend searching out some other resource to supplement one’s course in International or Transnational Law.

wills-trusts-and-estates-johansen-law-school-legendsWills, Trusts & Estates with Stanley Johanson: (4) Good. Professor Johanson is definitely different from other lecturers. Some people I spoke to didn’t like him, but I did. I found him charming like a quirky old timer uncle from East Tennesse who is fun to chat with during family reunions and get-togethers (although he’s from Texas, not Tennessee).  He has a cute sense of humor and an unusual way of teaching. Rather than give his lectures in outline format like most of these audio lectures, he includedes a pdf file full of hypothetical situations with the CD set. And his lectures are organized around him explaining the answers to those hypotheticals throughout the lectures. I found these CDs amusing and helpful and would recomend them to others.

federal-income-tax-block-law-school-legendsFederal Income Tax with Cheryl Block: (4) Good. Prof. Block does a good a job in this subject. Federal Income Tax is actually not about math. It’s about understanding tax law and it’s actually fairly easy to relate to as a subject since we all do things, have done things, or know people who’ve done things that have tax consequences. The subject is fairly easy to relate to when learning the subject. Prof. Block did not stand out as over-the-top great, but she is a good speaker and the lectures are definitely helpful and I would recommend these lectures as a very helpful supplement to your class.

criminal-procedure-dressler-sum-substanceCriminal Procedure with Joshua Dressler: (5) Excellent +!+!+! If Professor Dressler was great in Criminal Law, he is outstanding in Criminal Procedure. He wrote a Treatise on Criminal Procedure and he is just as clear, mellifluous, interesting and organized in Crim Pro as he was in Crim Law. Before taking this class, I expected the class to be more about the nuts and bolts of criminal cases and police procedure. In reality, this class is just an extension of Constitutional Law. Whereas the 2nd half of Con Law focuses more on 1st Amendment and 14th Amendment substantive due process rights, Criminal Procedure focuses more on 4th Amendment Search & Seizure, 5th Amendment self-incrimination, and 6th Amendment right to counsel issues. But both subjects are merely different areas of Con Law. Because of the Con Law nature of the class, and the inherent drama in the process of police investigations, searches, arrests and interrogations (there are countless TV shows with these themes, after all), this is certainly one of the more interesting subjects. And again, Professor Dressler is an amazing resource for understanding the rules and historical progression of the law in this area. Another must-buy!

I have also listened to the CDs on Family Law, which were very good, even though I have not taken those courses yet. I hope these reviews will help  people make an educated choice about how and which audio lectures to use in reviewing their law school courses.

Picture (top) of Prof. Stephen Presser speaking at Northwestern’s Law School courtesy of USNews.com.

father-divineThe latest in a series of law review articles has been released that relate to the tort of “Tortious Interference With Expectation of Inheritance.”  In those states that recognize this tort, it gives someone the right to sue a decedent’s beneficiary or distributee for money that is allegedly wrongly received in an inheritance when the following elements proved by preponderance of the evidence (i.e., 50.1% proof for each element):

  1. the existence of the expectancy;
  2. that the defendant intentionally interfered with the expectancy;
  3. that the interference involved tortious conduct such as fraud, duress, or undue influence;
  4. that there was a reasonable certainty that the plaintiff would have received the expectancy but for the defendant’s interference; and
  5. damages.

Irene D. Johnson,  Tortious Interference With Expectation of Inheritance or Gift – Suggestions for Resort to the Tort, 39 U. Tol. L. Rev. 769, 771 (2008) (citing Sonja Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229, § 2 (1983)).

In New York, however, this tort is not recognized. But aggrieved beneficiaries may resort to the remedy of “imposition of a constructive trust” in many, although not all, situations in which that person would have sued for tortious interference with expectation of an inheritance in other states, and with similar benefits. Diane J. Klein, A Dissappointed Yankee in Connecticut (or Nearby) Probate Court: Tortious Interference With Expectation of Inheritance – A Survey With Analysis of State Approaches in the First, Second, and Third Circuits, 66 U. Pitt. L. Rev. 235, 282-86 (2004).

The leading case for the imposition of constructive trusts in New York surrogate’s court, as a remedy for the same kinds of fraudulent actions that the tort of interference with expectancy of inheritance is meant to address, is the New York Court of Appeals decision in Latham v. Father Divine from 1949.

In that case, Lucy Latham bequeathed Father Divine, a charismatic preacher, and several of his associates, the bulk of her assets in her Will. Several cousins of the deceased testatrix brought significant evidence that Ms. Latham intended to draft a new Will for their benefit, but that associates of Father Divine physically stopped her from executing it and the cousins allege that the preacher’s associates ultimately killed her to prevent her from executing another Will. After a settlement in Surrogate’s Court, these cousins sued Father Divine and his associates in order to have the court impose a constructive trust on the assets Father Divine received.  This would effectively force him to turn over the money and property that he received to the plaintiffs.

The Court, in that case, explained  (page 30) that:

The answer is in Ahrens v. Jones (169 N. Y. 555, 561[]): “‘The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing, but it acts upon the gift itself as it reaches the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has full effect by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee, as a trustee ex maleficio, to turn over the gift to them.’” (emphasis added)

As noted by Prof. Johnson (supra at 239), constructive trusts may not have all of the advantages of the tort remedy. For instance, an aggrieved expected beneficiary cannot use this remedy against an innocent third party to whom estate property was sold after receipt of the assets by the fraudmeister. Also, a constructive trust will not allow a plaintiff to get actual damages, compensatory damages, punitive damages, or a jury trial. 

But for those of us in New York, the constructive trust is all we’ve got!  As readers of this blog know, our office has a very busy estate litigation practice so if you think that you, or someone you know, has been cheated out of an inheritance by some wrongdoing by another, you can call us to discuss your case.

Picture of Father Divine courtesy of tailorstreetstudio.

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