Estate Planning - Trust and Estate Planning Law Office

The Best Time to Update Your Estate Plan

When was the last time you thought to review and update your estate plan? It is a frequent misconception that once your estate plan is in place, it needs no further adjustments or review. However, as life is filled with exciting milestones as well as hardships, it is crucial that you regularly update your estate plan as life is constantly evolving. Planning an estate is a beneficial way to manage and protect your assets and ensure that your wishes and desires will be fulfilled after death. In this article, we will explore the importance of frequent revision of your estate plan and key life events that prompt reevaluation.

Why is it necessary to continuously review your estate plan?

Life is constantly filled with ups and downs including new births, deaths, marriages and divorces and it is important to be prepared for any situation. Regularly reviewing your estate plan can ensure that it aligns with your current circumstances and desires. This will allow you to address any recent changes in your family, designate beneficiaries and update other important information including appointing guardians for children. Periodic revision of your plan can lessen the potential for disputes among beneficiaries and family members and ensures that your wishes and desires are up to date.

Your financial situation is prone to change throughout your life. You may obtain and sell assets or might start a business which can have ramifications on your estate plan. By taking the proper steps to protect your assets, including updating your estate plan, you can ensure that they are distributed in alignment with your desires and lessen the potential for challenges in the future.

Additionally, Laws and policies are not static and they are always subject to change. Failing to be informed about recent policy changes can have implications on your estate plan. It is important to stay up to date about recent tax laws because it will provide you with the opportunity to maximize tax savings. Consulting with an estate planning attorney can help you ensure that your plan aligns with the most recent laws and regulations.

When is the best time to review my estate plan?

Below is a list of some essential life events after which you should consider reviewing and updating your estate plan accordingly.

Marriage or divorce- Whether you and your partner are joining lives through marriage, or separating through divorce, these events call for a review of your estate plan. Updating your plan after these life events provides you with an opportunity to account for your spouse, consider children from previous relationships as well as modify beneficiary designations.
Birth or adoption of a child- The welcoming of a new child into your life is an exciting milestone, and also prompts for an updated estate plan. A new child may encourage you to add guardians for your child and set up trusts in preparation of your child’s financial future.
Changes in your financial circumstances- Your plan should be reviewed thoroughly and updated in the event of substantial changes in your financial situation. For example, after the buying and selling of assets or receiving an inheritance, it is important to take advantage of new financial opportunities by updating your plan.
Death of a loved one- If a loved one or beneficiary in your plan passes away, it is essential to make the necessary adjustments to your plan including the addition of new beneficiaries.
Relocation- Moving to another state or country is a major event that requires the revision of your estate plan. Different states and countries have different laws and regulations in regard to tax and estate, therefore, in order to ensure your plan aligns with the local laws, it is necessary to review your plan and make the appropriate adjustments.
Changes in laws- Laws are constantly evolving and they are always subject to change. Therefore, when estate and tax laws are created or changed, it is important to review your plan and make sure it conforms to the current legal policies.
Retirement- As you approach retirement, it becomes especially important to address things such as income planning and healthcare in your estate plan as well as ensuring the future protection of your assets.

Regularly updating your estate plan is a crucial responsibility that should not be overlooked. Life can be extremely unpredictable, between family and financial circumstances, and it is essential to ensure your plan is up to date. Doing so can protect both your assets and your loved ones. To consult with a knowledgeable and experienced estate planning attorney, please contact the Trust and Estate Planning Law Office at (718) 333–2395.

How to keep your money within

Planning for your future is imperative for preserving and passing on your wealth. An estate plan will not only allow you to secure your earnings for your loved ones but also save money in estate taxes. When leaving an inheritance, your heirs may be subject to various estate taxes and fees associated with passing on assets. The idea of estate planning may seem unnecessary to some, whether due to non-marital status, not having children, or a perceived lack of assets. However, these are misconceptions that underestimate the value of your estate. Everyone, regardless of their family situation and finances, has an estate that can benefit from estate planning services. By seeking the expertise of an experienced estate planning attorney, you can preserve your estate, retain its value, and strategically plan for the future.

Why is estate planning significant? An estate plan enables you to decide who will inherit your assets, how they will be distributed, make plans for your funeral and burial, as well as select guardians for your children. For individuals in single households without children, spouses, or living relatives, estate planning becomes even more crucial as you need to consider the future of your assets and healthcare. Planning ahead ensures you are prepared for any sudden life changes.

Initiating a Trust

For individuals with substantial estates or concerns about their heirs' responsibility with inheritance, creating a trust and appointing a trustee for asset distribution is critical. There are many ways to set up a trust, but an irrevocable trust provides the most tax benefits. In an irrevocable trust, the money no longer belongs to you but to the trust itself, which protects it from estate taxes. Another way to ensure your money stays within the family is by setting up a dynasty trust, which safeguards the money within your estate for future generations and shields it from divorce, lawsuits, and creditor claims. In New York state, a dynasty trust remains effective for another 21 years after the death of the last person for whom the trust was created. This trust not only avoids estate taxes but also the generation-skipping transfer tax.

Retirement Accounts to Roth Accounts

Leaving heirs with traditional 401(k) or IRA accounts can result in substantial tax bills. Under current laws, non-spouse heirs are required to withdraw all the money within the account within a ten-year span, potentially leading to higher taxes due to the increased taxable income. Converting traditional accounts to Roth accounts can help avoid these tax burdens. While the amount converted is subject to regular income taxes, withdrawals from Roth accounts are tax-free, providing long-term tax savings.

Plan for Long-Term Care Expenses

Long-term care expenses can significantly impact your assets and financial well-being. Incorporating long-term care considerations into your estate planning can help mitigate these costs. One effective strategy is to explore long-term care insurance options that provide coverage for medical and care expenses in the event of a chronic illness or disability. Additionally, Medicaid planning allows you to structure your assets and income in a way that qualifies you for government assistance while preserving your estate. Setting up trusts, such as irrevocable Medicaid trusts, can protect assets from being counted for Medicaid eligibility purposes. Proactive planning for long-term care expenses safeguards your assets and ensures that you receive the necessary care without depleting your estate.

In conclusion, estate planning is a multifaceted process that can save you money and provide financial security for your loved ones. By considering the various aspects of estate planning, such as trusts, retirement account conversions, and long-term care planning, you can strategically manage your assets, minimize tax liabilities, and protect your estate. Consulting with an experienced estate planning attorney is crucial to ensure that your estate plan is tailored to your unique circumstances and goals. Take the first step in securing your financial future by contacting the Trust and Estate Planning Office at (718) 333-2395.

“I Care A Lot” reveals the unfortunate reality of POA and Health Care Proxy

In 2021, Netflix released the movie “I Care A Lot.” In this film, a rich Marla Grayson repeatedly convinces the court that elderly individuals are not mentally stable and need to be taken care of. After the court grants her guardianship, she moves her victims into an assisted living facility, sedates them, and takes their phones to ensure zero contact with the outside world. During this period, Marla sells her client’s properties, cars, and assets and banks the profit. However to her surprise, her next victim Jennifer Peterson is a lot harder to manage. Peterson’s son is a dangerous mafia boss who makes it his mission to make Marla’s life miserable and release Jennifer from the assisted living facility. While the film is intended to be a satirical and dark comedy, it references many financial and healthcare issues that could have been prevented with a definitive estate plan that included a Power of Attorney and Healthcare Proxy.

“I Care A Lot” Teaches Valuable Estate Planning Lessons

One day, Marla knocks on Jennifer's door and randomly presents herself as a newly appointed guardian. This could have been prevented if Jennifer, an extremely wealthy elderly woman, had appointed a power of attorney and healthcare proxy. While many often believe the two tackle the same problems, that is incorrect. A power of attorney appoints someone to take care of financial decisions for you. On the other hand, a healthcare proxy appoints someone to make medical decisions for you when you are no longer mentally or physically capable to do so.

Real-World Implications

Although the film is clearly intended to be satirical and dramatizes the life of a fraudster, elder financial exploitation is no laughing matter and has been on the rise. According to a 2018 article from the Securities and Exchange Commision, a study in New York state found that financial fraud cost elderly victims $109 million, though that number is likely much higher due to underreporting and the higher occurrence of healthcare fraud since the beginning of the COVID-19 pandemic. An article from the American Bankers Association reports that financial crimes cost elderly victims $2.9 billion in 2022. Elder financial abuse is among the most frequent forms of elder abuse, and elderly people are more likely on average to be targeted for financial fraud. Two factors in the prevalence of elderly financial exploitation are social isolation and mental impairment. Those older persons without close family or friends and those with physical or mental impairments such as Alzhemeir’s are more likely to be victims of financial crimes and are the preferred targets of fraudsters.

Elder financial exploitation takes many forms. In some cases, it may involve a caregiver convincing the victim to sign over to them their power of attorney. In other cases, it might involve a caregiver stealing a victim’s cash, cashing their social security checks, or using their credit cards. In more extreme cases, it might involve the victim signing over inheritance rights to real estate or savings accounts to “new best friends” or previously uninvolved relatives. Because there are no physical signs of abuse, elder financial exploitation can be extremely difficult to catch and can continue for years before irregularities are finally realized.

How To Protect Your Loved Ones

To protect your loved ones from potential exploitation, it is important to look for warning signs and report them immediately. It is also important to familiarize yourself with the wide-range of warning signs and the organizations dedicated to investigating and preventing elder financial exploitation. Some warning signs include fraudulent signatures on financial documents, unpaid bills that had previously been recurring automatic charges, sudden changes in a person’s will, trusts, or insurance coverage, and an unexplained transfer of assets to a caregiver or unknown third-party. This list is not exclusive, as fraud can occur through investments and annuities, telephone “sweepstakes” scam, and phony home-repair charges.

Some of the many helpful organizations at your disposal include the Adult Protective Service, National Elder Fraud hotline, and Long-Term Care Ombudsman programs. An experienced elder planning and Medicaid fraud attorney will also help in perceiving cases of fraud and contacting the proper authorities. In addition to these resources, it is important to be open and honest when discussing finances with your loved ones. Never sign a financial document without a second opinion, and never feel pressured to engage in a business dealing or investment. Report anything you feel uncomfortable about to your loved ones or the proper authorities. Above all, do not remain silent!

Conclusion

The satirical “I Care A Lot” is a worthy watch and certainly has its humorous moments, however it is most important to heed its lessons. Elderly people are at particular risk for financial crimes, and they are often the preferred target for fraudsters because of their perceived vulnerability and fragile health. Although the signs of exploitation and fraud are varied and sometimes hard to spot, remaining vigilant and engaging in frank financial discussions with your loved ones will help protect you from becoming a victim. Having an experienced estate planning and asset protection lawyer in your corner will also help you to prevent any potential damaging financial occurrences. For all your asset protection needs, call the Trust and Estate Planning Law Office at (718) 333-2395.

Why is it important for Black families to write a will?

Writing a will is not just an administrative task—it is a critical step that ensures your loved ones are provided for even after you are gone. Surprisingly, many individuals, including celebrities, neglect this essential aspect of estate planning. A-listers such as Chadwick Boseman, John Singleton, and PnB Rock tragically passed away without a will in place, leaving their hard-earned legacies to be tangled in lengthy and costly probate battles. However, it is Singleton and PnB Rock’s estate that draws our attention, serving as recent and instructive case studies from which we can learn valuable lessons.

Estate Planning Within the Black Community

Startling statistics from a recent 2021 survey on wills and estate planning reveal a stark reality: while 33% of Americans have taken the crucial step of creating a will, only 27.5% of Black Americans have done the same. It is estimated that over the next 25 years, $68 trillion will be transferred from American households to inheritors and charity. However, due to the underrepresentation in estate planning, the Black community stands at risk of missing out on a substantial portion of this transformative wealth transfer.

The confusing reality of wealthy individuals, including Black celebrities, who fail to establish a will after their passing raises a fundamental question: How could individuals with significant wealth find themselves in such a vulnerable position? The answer lies in a larger issue: the lack of emphasis or education surrounding the importance of wills and estate planning, not only for these individuals but also within the broader Black community.

This can be attributed to various complex reasons such as redlining, a discriminatory practice that emerged in the 1930s and refused financial services to individuals on the basis of race and ethnicity. Through this practice, segregation was reinforced as limited housing opportunities forced Black individuals into concentrated pockets for poverty thus limiting the ability to move into more prosperous neighborhoods. Concentrated pockets of poverty translates to restricted access to quality education, healthcare, and job opportunities. All of these factors have an impact on knowledge of wealth building opportunities such as estate planning to this day.

The Case of John Singleton

John Singleton is a Black film director, screenwriter, and producer who passed away in April 2019. He’s best known for his film debut “Boyz n the Hood”, and most recently his work as co-writer for the Hulu Original “Snowfall”. At the time of his death, his estate was valued at $6.8 million. The contents of his estate include a Los Angeles home, a 1999 Lexus, a 2003 Mercedes Benz, a 2012 sailboat, ownership of 70% interest in Crunk Pictures, LLC, and was the owner of the New Deal Productions that was valued at $3.2 million.

However, at the time of his death, Singleton had no trust and an outdated will that was created in 1993. He was a father to several children, but only his eldest daughter was included in the outdated will. As one can imagine, when it came time to settle the distribution of his estate, his children were in a battle to acquire their portion of the foregone estate. This battle began after the Singleton’s passing in 2019 and recently ended in February 2023. This is a testament to the extensive process of probating. Aside from the tragic passing of Singleton, another tragedy is the effect probating has had on his family. For the past 4 years, the Singleton family have slandered each other on social media amid discourse about various subjects, but specifically about the distribution of the estate. This not only tarnishes the household name, but also the grieving process. This could have been avoided had the will been updated.

PnB Rock and the Importance of a Will When You’re Young

The rapper and singer PnB Rock is another example of a celebrity who made the mistake of not writing a will. PnB Rock passed away in September of 2022, and left behind Stephanie Sibounheuang, his girlfriend and the mother of his daughter. On Instagram LIVE, she shared that her boyfriend had no life insurance or a will. “We didn’t have nothing set up. We’re so young, we didn’t plan on death. I don’t get no death benefits. I don’t get nothing.” Furthermore, the mother of his child, due to the absence of a will, has been faced with the task of providing for herself as well as her child on her own.

Writing a will is essential to making sure your loved ones are taken care of. No matter how young or old you are, having a will should be a priority. Life is unexpected and as Sibounheuang stated, they were so young that they didn’t plan on death. Death is not something that can be planned but an estate is. Writing a will seems intimidating to many, but with help from a credible attorney, the process will be made simpler.

The trust and estate planning office specializes in wills and trusts while also understanding the unique challenges faced by Black Americans when it comes to estate planning. In addition to Inna's impressive credentials, our clients have consistently praised her compassionate approach to addressing their concerns during what can be a stressful process. One client expressed, “First she made you feel at ease with [the] entire process and spoke to my family very frankly and openly giving them episodes from her experience [of] how something could go wrong so they had a good idea of what type of trust they need to set up.” When seeking will and trust services, Inna Fershteyn is the professional to trust. To begin drafting your will today, please contact our dedicated Trust and Estate Planning Office at 718-333-2395.

How do Non-marital Children Inherit Wealth Under NY State law if their Parents Die Without a Will?

Loved ones are not always family by blood, especially as the traditional, “nuclear family” structure is fading in frequency. In the eyes of the law, a legal family may differ from what society typically defines as a family unit. While this distinction may seem unfair, it is important to understand that there are specific measures one must take to align legal status with emotional and familial bonds. When you die without a will, or die intestate, your assets go through the probate process and then are distributed according to the law. Not only do legal beneficiaries often lose money to probate fees, but New York State law only takes into account legally named children as beneficiaries. By creating a strong estate plan, you will ensure that those you love, no matter your relationship, will inherit the assets you believe they deserve.

New York State Intestate Law and Nonmarital Children

Intestate laws, which govern the distribution of assets when someone passes away without a valid will, vary depending on your state. New York State intestate laws are intricate and often difficult to understand. These laws may not align with your desired outcomes or yield ideal results for you and your family structure. To briefly outline basic New York intestate law:

If the deceased has a spouse, the spouse inherits everything
If they have a spouse and children, then the first $50,000 plus half of the balance goes to the spouse while the children inherit the remaining half of the balance
If children die prior to the deceased, then grandchildren step into the role and inherit instead of the children

It is important to note that while adopted children inherit assets like a biological child, foster children and stepchildren are only allowed to inherit if they are legally adopted. Non-marital children, or children born to an unmarried couple, will inherit from their mother automatically without any further requirements. However, non-marital children will only inherit from their father when paternity is established. Paternity can be established through legal acknowledgment by the father, court determination, or genetic testing. If a non-marital child dies, their spouse, mother, and maternal family are automatically entitled to their estate. The father and paternal family are also included, provided that paternity has been established. There are more layers to New York State intestate law, but in summary, it is very complex and does not often act in your favor if you have a non-traditional family structure.

In the event that a father figure dies prior to establishing legal paternity or an estate plan, a nonmarital child can still inherit wealth if they file a paternity petition with a family court and win their case. If it is possible to show DNA results, legal documents, or any other proof that would be accepted in a court of law, they can obtain a share of their father’s wealth. However, this is a lengthy process and it is often difficult to establish paternity after the father has passed, especially with no DNA test. After paternity has been established, the nonmarital child can assert their inheritance rights as a legal heir and file a petition with the probate court to make a claim against their parent’s estate. This process is filled with unpredictability and it can be months or even years before the case is resolved. As nonmarital parents, it is wise to consult with a knowledgeable estate planning attorney in order to explore your options to ensure that your child and assets are protected in the event of your passing.

Avoiding Probate

Creating an estate plan is a proactive and prudent step that can help you avoid the headache that comes with the probate process. By meticulously crafting an estate plan, you can ensure that your assets are distributed according to your wishes. Life flies by quickly, and you never know what might happen tomorrow, so it is never too early to make an initial plan. You must also acknowledge that estate planning is not a one-time endeavor. It is important to routinely update your estate plan when important milestones occur such as getting married, accumulating new wealth, and welcoming children. A well-thought-out and comprehensive estate plan goes beyond asset distribution, encompassing many different elements such as the establishment of trusts, designation of beneficiaries, appointment of guardians for minor children, and planning for tax implications. By considering all of these aspects, you will maximize your personal benefit and the benefit for your inheritors. This is especially important for parents of nonmarital children, specifically fathers, because New York Intestate law will not be on your side. By taking the time to create and regularly update your estate plan, you inevitably gain control over your financial legacy and ensure that your hard-earned assets fall into the desired hands.

Estate planning can be a daunting task, and most people do not want to engage in such a process because it forces them to face their mortality. However, no matter how old you are, if you have any assets that you see as valuable, it is essential that you set up an estate plan. Estate planning gives you autonomy over who your assets go to and it helps descendants avoid dealing with the taxing probate process after you pass. In non-traditional family situations, estate planning is essential because New York State intestate law does not often work in your favor. It is important to have an experienced attorney by your side throughout your estate planning journey to help maximize the benefits and minimize the long-term costs. If you have any further questions or are ready to begin your estate planning journey, please contact the Trust and Estate Planning Law Office at (718) 333–2395.

Is it Worse to Die Without a Will in New York or New Jersey?

There comes a time in everyone’s lives when they ask the question –– do I need a will? The answer is indubitably yes, everyone needs a will. When someone dies without a will, all of their assets, with the exception of assets that are held jointly or that require a named beneficiary upon creation, are distributed based on a state’s intestacy laws. A will is a document that lists the individuals your assets will be allocated to in the event of death, and having such a document can save your loved ones a lot of time, angst, money, and even legal fees. To get a basic sense of state intestacy laws, we can compare New York and New Jersey.

Dying Without a Will in the State of New York

If you die without a will in the State of New York, your surviving spouse inherits the entire probate estate if there are no children or other descendants. In the case that there are children, the surviving spouse inherits the first $50,000, and the remaining balance is divided in half between the spouse and children.

If there is no surviving spouse but there are children, the entire probate estate will be passed to those descendants. The children will take their share of the probate estate “by representation”, meaning that the assets will be divided equally among the members of each surviving generation, or the generation nearest to the deceased ancestor. If the individual does not have a surviving child or spouse, the probate estate is allocated to the deceased's parents and divided equally.

In the absence of any direct surviving family, the probate estate will be divided in half between the deceased person’s maternal and paternal relatives. The specified order in which the probate estate is passed down begins with the grandparents on either side and subsequently moves to the first cousins once removed. If the surviving relative closest to the deceased is a second cousin or more removed, the probate estate passes to the State of New York.

Dying Without a Will in the State of New Jersey

In contrast, New Jersey law distributes assets through a “branch system”, where priority is strictly given to the deceased’s surviving spouse if there is no written will. In this case, the spouse inherits the entire probate estate. From there, the situation becomes increasingly complex if children from different spouses and partners are involved. For example, if the current living spouse has children with the deceased, but also with someone else, the spouse will inherit 25% of the deceased’s estate – no more than $200,000 and no less than $50,000 – then the spouse will get half of the remaining estate while the deceased’s children split the other half. In the event of no surviving children or grandchildren, then parents, siblings, and siblings’ descendants are next in line. If no one in the second branch is alive, the last branch consists of grandparents, aunts and uncles, and descendants of aunts and uncles. If no one in the last branch is alive, and there is no living spouse, then unadopted stepchildren get the last chance to inherit before the deceased’s probate estate is seized by the state.

Which is Worse?

Compared to New York, New Jersey’s intestacy laws are much more intricate, and, many times, your money may not be passed down in a direction that seems appropriate to you.

The best way to prevent these headaches is by having a written will. A will gives you autonomy, and is a safe way to ensure that your assets are allocated to the people that you believe truly deserve to benefit from your life’s work. No matter how big or small of an impact you believe your assets will make, it is important to have a plan and give you and family peace of mind. If you have any further questions or are ready to begin your estate planning journey, please contact the Trust and Estate Planning Law office at (718) 333–2395.

Why Are Trusts Needed to Protect Your Assets From Being Seized?

In New York since the 1980s Businessmen have found legal ways to target homes in Black and Latino Neighborhoods. New York City today is filled with opportunities to make a profit off long-time homeowners, many of whom do not leave wills. Even if the homeowners do leave a will, they are written in a manner that can be questioned and taken through litigation which is timely and costly. Under New York City Law anyone who has a percentage of interest in a property has the right to go to court and demand a judge to order the sale of said property. Which would split the proportional proceeds among the recognized shareholders.

This is what happened to several families in NYC for years now, with Business men like Eddie Doran targeting families, such as Deborah Thomas for their properties. Aston Smith bought his home in 1995, which was co-owned by his wife Deborah Thomas and his mother who passed away. After his mothers passing his estranged brother Raymond Smith inherited half of the real estate which included a little over 16% of Aston Smiths home. Doran and his co-investors found Raymond and bought his share, therefore, becoming co-owners of Aston Smith’s home. To avoid the costly nature of litigation and the risk of losing their home they paid the co-investors and Doran $235,000 even though they only bought the share for $65,000. This has happened to several communities that are on the verge of gentrification in New York City.

To protect your home and your assets so you don’t fall victim to this target in New York City consult with a well versed Estate Planning Attorney, Inna Fershteyn. The Law Office of Inna Fershteyn, will assist you with your will or trust, review documents to ensure if they should be signed or not in terms of your estate, and assisting you in setting up a detailed will or trust to ensure your loved ones or you do not become targets of these NYC businessmen.

For further Estate Planning inquiries please contact the Law Office of Inna Fershteyn at 718-333-2395 to best prepare for your future through will drafting, trusts, power of attorney, health care proxy, and living will documentation.

Why You Should Review Your Estate Plan Before A Second Marriage

It is becoming increasingly common for people to remarry and create blended families. When blended families are created, estate planning becomes a little more complicated. Estate planning for a blended family can be complicated because each spouse may want to provide for each other, their biological children, and maybe even their step-children/adopted children after their death. If this sounds like your family, you should proceed cautiously and read ahead for some guidance on estate planning.

Estate Planning Considerations Before a Second Marriage

A remarriage may create a unique set of legal questions. People assume that their adult children will automatically inherit their assets when they pass away. People make this assumption because most of their property and assets have been spent with their previous spouse, who was possibly a co-parent to the children, and the one who may have helped to build or sustain the family assets.

However, a new marriage means that the family property is governed by the laws of the new marriage. If there is no prenuptial agreement with the new spouse and they survive you, then they would inherit at least one-third of the estate according to New York laws. This means that your adult children from a previous marriage might be in for a rude awakening. A large part of the children’s inheritance might be gone due to the new spouse’s right to inherit one-third of their spouse’s estate.

In order to avoid confusion and possible heartache in the future, have these discussions with your family now. Consulting an experienced estate planning attorney will help with deciding the best ways to make sure your wishes are carried out.

Elective Shares

As stated earlier, if a spouse dies, then the surviving spouse has a right to inherit a one-third share of the deceased’s estate. This is what’s known as an elective share. By law, a spouse cannot be disinherited unless they willingly choose to be. The only way that a surviving spouse can be disinherited completely is through a prenuptial agreement, where each spouse can agree to waive any claims to an elective share of one another’s estates.

Your elective estate includes not just property in your name alone, but also most assets with beneficiary designations such as bank accounts, securities, IRA accounts, the cash value of life insurance, etc. Essentially, you would not be able to easily ignore your spouse’s rights to their elective share. One may assume that if assets are left in a trust for a child then it would be difficult for the surviving to claim their shares. However, the surviving spouse can still file a probate proceeding and possibly force the child to return the assets to satisfy the elective share law.

Prenuptial Agreement Before The Next Marriage

It’s important to recognize that a prenuptial agreement does not mean that a couple will be planning to get a divorce, or that spouses do not trust one another. Rather, couples are recognizing the importance of their upcoming legal commitment to marriage. Older clients who remarry often have important financial obligations from previous relationships such as alimony or child support payments. They may also have hard-earned estates they wish to leave to children from previous relations. In order to provide a solid foundation for their future marriage, people should consider sorting through their finances. By signing a prenup, couples are communicating their concerns for the future financial security of their other relatives and are expressing their respect for the hard-earned assets and accomplishments of their future spouse.

Review Your Estate Plan Before Remarrying

Before getting remarried it is important to focus on redoing your estate plan. During your first marriage, you may have created an estate plan, however this time it might be more complicated, especially if you have children from your first marriage and/or you have since then acquired more valuable assets. Here are some of the best methods we recommend to ensure that your interests are met when you remarry:

Take Stock. You and your soon to be spouse should take an inventory of your individual and/or shared assets and debts. Make sure to include life insurance policies and retirement plans in your stockpile. And be sure to disclose to each other all of this. It is best to be open and honest about money with your spouse.

Financial Management Decision. Once you know what both of you are worth financially, then you two need to decide if you want to combine (or not combine) assets when you are married. For example, if one spouse has significant debt (ie. student debts) you may not want to combine finances or make any joint purchases. These decisions need to be made upfront so everyone is clear on what to expect.

Discuss Who Will Receive What. You and your future spouse need to figure out who will receive your estate when you die. This can be complicated discussion if you have children from a previous marriage. By law, if you leave all your assets to your new spouse, there are no guarantees that your new spouse will be required to provide for your children. If you would like to ensure your children are provided for, there are numerous options available. Some of these options include: creating a trust for your children, naming your children as beneficiaries on life insurance policies, or explicitly giving your children joint ownership of a property. If any of these options sound appealing for your case, consult an estate planning attorney for which option is best.

Double Check Beneficiaries. If you have a previous estate plan created, you should double check who you named as the beneficiaries on your life insurance policy, and/or retirement plan. Upon reviewing, you may want to change who you previously named. However, if you are divorced, you may not be able to change some of the beneficiaries. When you return to your estate planning attorney, be sure to bring your divorce decree so they can make sure you do not violate the decree. If it is the case that you can not change your beneficiaries, you can buy additional life insurance or retirement plans where you can include your new spouse or future children.

Consult An Estate Planning Attorney. Before you remarry and if you have an existing estate plan, you should definitely consider updating your last will. You might also need to update or even create other estate planning documents like a durable power of attorney and a health care proxy.

Before or maybe after consulting an attorney, be sure to be open and honest to your family members and loved ones about your wishes so there are no surprises. If you would like to review and create a new estate plan before remarrying, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

How to include children from prior marriages in a will?

When remarrying, it is a time to celebrate and be joyous of a new chapter in your life with a new family. However, most people do not think about estate planning during times of celebration. Having a blended family may make room for some unexpected challenges as you may want both families to take part in your estate plan. In the case that you have children from a previous marriage that you want in your estate plan, it may seem confusing and overwhelming to tackle.

If possible, you can leave your assets to your newly married spouse and hope that they will divide your assets among all your children. However, it is also possible that your spouse will not respect your wish. Before getting remarried, it is important to review or redo your estate plan. By doing so, it can clear up any possible future confusions.

Take Inventory of your Assets

- With your new spouse, you can take an inventory of your assets and debts. This can include your retirement plans and insurance policies. By being fully honest and open, you will allow your family to have better conversation and no possible hard feelings.

Decide Where You Want your Assets To Go To

- You can decide with your new spouse if you want to combine your assets or not before you get married again. By doing so, it can be clear to everyone on where the assets are going to and who it is going to.

Decide on what option you would like to secure your children’s inheritance

- There are multiple options to ensure that your children will get their designated share of inheritance:
  - Creating a trust specifically for your children
    - This allows you children to have exclusive and specific rights to hold and manage whatever benefits they will get from you.
  - Making your children beneficiaries of life insurance policies
    - Life insurance payouts will go to those who are listed as your beneficiaries when you pass away so that gives them a portion of the money.
  - Giving your children joint ownership of property
    - By doing this, your children will be able to have full ownership after you pass away- which also secures their portion of their share of your assets.

In a perfect world, you can simply leave your assets to your newlywed spouse but as always, the options for assuring your children allows for certainty. A mutual understanding between you and your new spouse will make it easier for the future and your marriage. It is important to talk about estate planning with your family. If you or a loved one wants more information about estate planning, contact the Law Office of Inna Fershteyn at (718) 333-2395.

What is a Health Care Proxy, Living Will and Durable Power of Attorney?

As you get older, you may come to realize that you or your loved ones will eventually be unable to make major decisions on their own. Before that time comes, it is common that people consider a health care proxy, living will, or power of attorney. However, many people are unaware of the significance that these documents hold. It is important to understand the difference among these various forms depending on what you and your loved ones want.

Health Care Proxy

A health care proxy is a document that directs who will make your medical decisions for you after you are deemed to be unable to make your own decisions by a physician. Usually a family member or trusted friend is assigned this role to execute medical decisions of your best interest when you are unable to. You will be able to continue to make your own choices as long as you are still in the right state of mind. For example, if you were to fall into a coma, the health care proxy you appointed would take the steps necessary as per your wishes in this unexpected situation.

Living Will

A living will is simply a document that contains your medical wishes written for family members, friends, and health care facilities. In the situation that you will be unable to communicate your health care wishes, this document should give loved ones and others an idea of what you would have wanted. This document does not appoint anyone to oversee and speak on your behalf. It is purely a document stating your medical wishes.

Durable Power of Attorney

A durable power of attorney assigns a person (or people) to make financial decisions unrelated to making health care decisions for you. This includes factors such as paying your bills and can even include managing real estate and other assets. It is possible for the health care proxy to overlap with the power of attorney but there is a separation between the two. Power of attorney relates to financial matters while a health care proxy is exclusively medical decisions.

To summarize: a health care proxy dictates who makes your medical decisions (in both predicted and unexpected events) while a durable power of attorney dictates who will make your financial decisions for you. In addition, a living will is just your medical wishes on paper for any possible event that may arise.

A factor that people tend to forget is that an agents’ authority can be temporary as well as permanent depending on the situation. In the situation where you may be physically incapacitated for a limited amount of time, the agents’ are able to make decisions for you during the time you are unconscious. After you wake up, they lose their authority. In permanent situations such as being in a vegetative state, suffering from Alzheimer's, or otherwise, agents will be allowed to be authorized to make decisions on your behalf.

It is crucial to consider which loved ones would be the most suitable to carry these forms of authority. These kinds of documents may save trouble in the future in case anything arises. For more information on health care proxies or estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

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