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much of what protects your wishes is not even in the documents. it is protocol and is the questions asked at the signing in front of witnesses.
state laws change on the fly . we had a co-worker hit a snag because the internet form used was not the new statutory form required as mentioned below.
we hit a snag on the refinance of a house we inherited through a simple will.
it read i leave my house and possessions to my child beth.
the title company stopped the refinance since a word was missing. that word was ONLY " as in only child.
well i had to pay all the attorneys for the day and lost my rate while we got affidavits there were no other children.
we had a court rule a trust defective as well as it lacked a sentence relating to predeceasing the parents.
some of the issues those who use canned documents in our state ,ny run in to are :
"Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated. The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes. Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make such decision. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration either in the actual health care proxy or in a separate living will. Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place. Secondly, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again- this requires the help of someone with experience. Finally, the document must be witnessed by two individuals in order for it to be validly recognized. A person should not have his agent, spouse or child be a witness to the signing.
We see even more problems in the area of powers of attorney. The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated. Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. Firstly, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.
The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Further, any additional powers beyond those enumerated in the statute, must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory. Accordingly, if someone decides to cut corners and download a form from the internet, this may result in a tremendous disservice because if the form is not statutory, it does not have to be legally recognized. The power of attorney is an extremely important tool for estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied. It is imperative to have this document prepared by an experienced practitioner.
A last will and testament is yet another document that must be prepared under the supervision of any experienced attorney. After the person who executed the will dies (the “decedent”), the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process. "
Huh? as per OP they are the ones that sold the house. How would they move in?
I didn't express that clearly, you are correct. What I was trying to say was that in terms of inheritance, the loop hole is if they were going to move into it and not sell it. This is not the case here.
medicaid planning which is referred to as elder law elder law is different then estate planning . an attorney who is an estate attorney is a specialist in what if you die . an elder law attorney specializes in the ramification of living .
frequently they do both 1/2' ,i know ours does .
Of course you are 100% correct. The elder law attorneys we dealt with often advised the benefits of setting up a trust of one sort or another (Life Estate, Irrevocable, Revocable, QTIP) to shelter your assets. Back then in NYS, spousal refusal was just starting to be challenged. I can tell you hundreds of times when there was one spouse who took ill, they were advising spousal refusal. In fact, when my mom suddenly took seriously ill, my own dad, who had a life long illness, was told by an elder attorney, to invoke spousal refusal. My dad was a very honest man and felt that was deceitful and would have none of it. As it turned out, he outlived my mom!!!
It truly is a sad state of affairs that the illness of one spouse or partner can literally bankrupt the other without proper and smart planning in place.
little by little states are starting to come around to the fact we have a bad long term care system in place .
ct , ny and florida courts have already taken the stance they will not allow medicaid to impoverish the people of the state because of this bad system .
they have been ordering medicaid to negotiate reasonable agreements so the stay at home spouse is not impoverished .
ny also offers one of the best long term care partnership plans in the country . the perks are worth more then the 3 years insurance you get . full asset protection with no shifting of assets and income protection for the stay at home spouse are fabulous perks .
I didn't express that clearly, you are correct. What I was trying to say was that in terms of inheritance, the loop hole is if they were going to move into it and not sell it. This is not the case here.
Gotcha! Just wanted to make sure I wasn't missing something after thinking I understood the entire thread, haha.
medicaid planning which is referred to as elder law elder law is different then estate planning . an attorney who is an estate attorney is a specialist in what if you die . an elder law attorney specializes in the ramification of living .
frequently they do both 1/2' ,i know ours does .
I see your point. I worked with a pretty large law firm for what I needed. They had different divisions with specialists in many areas. They pretty much grouped all this as sub-headings under an "elder law" umbrella. You set up trusts to protect your estate, which is part of estate planning, which usually comes into play when you are older. Its all intertwined. I use the term "elder law" in a more general sense because that's how my law firm was structured.
We see even more problems in the area of powers of attorney.
The entire POA process is a mess. Everything you wrote is correct. The problem is that even when everything is 100%, many places will STILL give you a hard time. I went through this for years. I originally had the "old" form and then went through a world of hurt getting the "new" form. it didn't matter. I would constantly argue with banks which claimed that "my" form was not good and the bank would only accept their own special POA form.
Of course, when the person is incapacitated, they can't come into the bank and fill out a custom POA form. If they could, you wouldn't need the POA in the first place. I can't tell you how many times I had to dig my heels in and escalate the issue. I had my attorney on speed dial and we threatened to sue more than once.
At one point my attorney sent me an article he found. A bank had refused to honor a legal POA and the bank worker was held personally responsible when sued. A copy of that article made a few things go easier.
Quote:
A last will and testament is yet another document that must be prepared under the supervision of any experienced attorney. After the person who executed the will dies (the “decedent”), the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process. "
People don't realize how particular the courts can be. They want an ORIGINAL signed will. As you note, they check the staple marks. If anything doesn't look right (to them) they may throw the will out.
I ran into a problem along those lines a few years back. Some small technicality and the court drove me nuts for six months. It almost cost me a fortune. It did cost me plenty of time and extra paperwork. After a certain point, I had a long talk with my lawyers. Basically had them read the riot act to the judge. The judge finally saw it my way (which surprised the heck out of my attorney). I just got lucky - mainly because I was 100% in the right. The point is, however, they have you by the short hairs. The court can tie you up forever and they move at a glacial pace.
Always get a good lawyer that specializes in the area you need. The smallest error can make your life (or the life of those you leave behind) a nightmare.
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