You'll find here some fundamental information to help answer basic legal questions.
It's not uncommon to put off thinking about legal issues, when pressing medical
concerns are on the forefront. Even if you're in the early stages of caregiving,
you may want to review this section to help prepare yourself for issues you may
later need to address. We may never feel truly ready to accept the roles we have
to play, but the more prepared we are to understand what has to be done, the more
we are able to get through even the more difficult situations.
The following information (generously provided by Robert Friedman of www.Legalsurvival.com) is designed to help you prepare yourself
to make informed legal decisions in a timely way.
This information is generously provided
by Robert Friedman of www.Legalsurvival.com.
For over 22 years attorney/author, Robert Friedman, has helped clients minimize estate
and income taxes and probate costs and to plan for nursing home care. He advises
clients on the benefits of wills, living trusts, powers of attorney, health care
proxies, life estates, living wills, gifts and guardianships. He frequently lectures
on estate planning and elder law. His Legalsurvival.com website helps caregivers
to identify actual or potential legal problems and correct those problems before
they become a major crisis. Friedman is a partner in the law firm of Friedman &
Ranzenhofer, P.C., which maintains offices in Buffalo, Williamsville, West Seneca,
Batavia and Akron, New York. (Tel 1-800-729-4571)
a quarterly online newsletter, online bookstore, law FAQs, checklists, prepaid legal
plans, find a lawyer, attorney marketing services, useful forms, helpful links,
and an articles forum. It has extensive information on elder law, estate planning,
and health care, as well a full range of other legal issues. The site has been recommended
by USA Today, Fortune Magazine, the New York State Bar Association, Smart
(The Best 2,500 Web Sites - 1999 & 2000).
The following information is designed to help you prepare yourself to make informed
legal decisions in a timely way.
- Health care proxy
- Will information sheet
- Executor Has Responsibilties
- Where There's a Will, There May NOT be a Way
- Will Questions
- Testamentary Trusts
- Start Estate Planning Now
- Trustees' Duties
The New York forms below are meant to be a guide to the user. Subsequent statutory
changes and court decisions may affect their validity. The user is advised to verify
the continued validity of any form in light of any changes in the law and to consult
with an attorney.
1. Health Care Proxy
Health Care Proxy
1. I, __________________________________________________________ hereby
(name, home address and telephone #)
as my health care agent to make any and all health care decisions for me, except
to the extent that I state otherwise. This proxy shall take effect when and if I
become unable to make my own health care decisions.
2. Optional instructions: I direct my proxy to make health care decisions in accord
with my wishes and limitations as stated below, or as he or she otherwise knows.
(Attach additional pages if necessary.)
(Unless your agent knows your wishes about artificial nutrition and hydration [feeding
tubes], your agent will not be allowed to make decisions about artificial nutrition
Sign here if your agent knows your wishes. _______________________________
3. Name of substitute or fill-in proxy if the person I appoint is unable or unavailable
to act as my health care agent.
(name, home address and telephone #)
4. Unless I revoke it, this proxy shall remain in effect indefinitely, or until
the date or conditions stated below. This proxy shall expire (specific date or conditions,
Statement by WitnessI declare that the person who signed this document is personally
known to me and acting of his or her own free will. He or she signed (or asked another
to sign for him or her) this document in my presence.
Witness 1 __________________________________________________________
Witness 2 __________________________________________________________
2. Will Information Sheet
INFORMATION FOR WILLS
Your appointment is scheduled on ____/____/ 01_ at_____a.m./p.m.
at our Akron/Batavia/ Clarence/West Seneca/Buffalo officewith Robert Friedman/Elizabeth M. DiPirro/Michael H. Ranzenhofer
City, County, State & Zip Code:_____________________________________
Home Phone:___________________ Business Phone:____________________
DOB:__________________ Social Security Number:_____________________
Spouse's Social Security Number: ___________________________________
Citizenship:________________ Referred By:___________________________
- All relatives who would share in your property if you had no Will (e.g. children,
parents or siblings):
Date of Birth
Any prior marriages for you or your spouse?_____________________________
- Names of step-children:_____________________________________________
- Do you have a safe deposit box?_______ If so, where?___________________
- Do you have a: Living Will?_____________ Health Care Proxy?____________
Power of Attorney?_____________ Living Trust?________________________
- Which of the above items would you like us to prepare?__________________
- Date and location of old Will:________________________________________
- Who do you want to act as Guardian or Trustee of your children?
- Who do you want to act as Executor and Alternate Executor?
- List all life insurance policies:
Beneficiary 1st & 2nd
- List bank accounts, CDs and money market funds (individual and joint):
Type of Account
Name of Owners
- List all real estate (individual and joint):
Name of Owners
- List all retirement plans, IRAs, 401-Ks, etc.:
- Stocks, bonds, mutual funds and annuities (individual and joint):
No. of Shares Class
Name of Owners
- List any other property you own or in which you have an interest, including business
interests, notes or mortgages owed to you, autos, boats, valuable jewelry, art work,
- Do you reasonably expect to inherit any property or receive any substantial gifts
or powers of appointment?________________. If so, explain briefly:_______________
- Would you like us to hold your original will in safekeeping?________________
- What disposition do you wish to make of your property?
3. Executor Has Responsibilities
QUESTION: My aunt has asked me if she can name me as the executor in her
will. Before I agree to be executor, I would like to know what my responsibilities
ANSWER: Generally speaking, the executor's responsibilities include the following:
- Meeting with the funeral director, cemetery representative and clergy to make burial
and funeral arrangements.
- Collection of the following documents in order to establish rights for insurance,
pensions, social security and ownership: will, birth and marriage certificates,
social security number, citizenship papers, insurance policies (life, health, accident
and property), bank books and statements, deeds, leases, car title/registration,
income tax returns, veterans discharge certificates, disability claims, unpaid bills,
property tax bills and credit card information.
- Notification of the post office, relatives, friends, employer, insurance agents
(life, health and accident), religious fraternal, civic and veterans organizations,
unions, newspapers regarding notices, attorney and accountant.
- Collection, conservation and appraisals of the personal property of the estate.
- Securing the residence and review of insurance coverage.
- Payment of all valid debts including funeral costs, fees and expenses incurred in
administration, estate taxes, income and other taxes, medical bills and utilities.
- Applying for social security benefits and employer identification number.
- Distribution of the money and property in accordance with the will.
4. Where There's a Will, There May NOT be a Way
Q. My late father left his home to me in his will. However, the attorney
for my father's estate said my step-mother has rights to the house. How can this
A. A common mistake in estate planning is the failure to realize that a will
does not control the disposition of real estate under the following circumstances:
- Right of Election. Regardless of what your father's will stated, your step-mother
has the right to file a "right of election" as surviving spouse. She is entitled
to the greater of $50,000.00 or one-third of your father's estate and any transfers
he made within one year prior to death. However, she would have waived her right-of-election
only if she had signed a valid prenuptial or antenuptial agreement; she had abandoned
your father or failed to support him.
- Life Estate. If your father deeded the house to your step-mother and retained life
use, the home automatically went to her upon his death.
- Tenants-by-the-Entirety. If the home was owned by your father and step-mother as
tenants-by-the-entirety, it automatically passed to her upon his death. However,
if the home was owned as tenants in common, his share of the house would go through
the estate in accordance with his will or if he had no will, to his surviving heirs.
- Living Trust. If the real estate was owned in the name of a living trust, it would
be disposed of pursuant to the trust agreement.
Contact an attorney to review the facts and advise you of your rights.
5. Will Questions
Q. Is owning my home jointly with my wife a substitute for having a will?
A. No. If you and your spouse bought your home together, she automatically
gets ownership of it upon your death. But what if you both died together: The home
that you worked so hard for might be sold and the proceeds controlled by a stranger
until your children reach the age of 18, at which time they could spend it as they
wish. A person's major asset is usually his home. With inflation rapidly driving
up home values and mortgage insurance covering the mortgage, many homeowners have
a much larger estate than they may think.<
Q. What happens if I die without a will?
A. Dying without a will may result in your estate going to someone you didn't
intend to receive it, unnecessary estate taxes, delays in settling the estate, added
estate expenses and leaving your estate assets without proper management and protection.
If you die without a will, New York State law makes the decision as to the distribution
of your property. If you die leaving a spouse and one child, your spouse receives
$50,000.00 in money or personal property and one-half of the estate and your child
receives the remaining one-half. If your spouse and two or more children survive,
your spouse receives $50,000.00 and one-third of the estate.
Q. What does a will do?
A. A properly drawn will is the only way to be sure that your property at
your death goes where you want it to go. By executing a will you may dispose of
real and personal property at your death in the proportions and to the persons you
wish; appoint competent and trustworthy executors, trustees and children's guardians;
and create trusts. If you will be leaving large sums of money to your minor children,
the will should provide for a trust with a trustee, such as a bank, which can provide
proper money management until your child reaches the age of 18 or older. Making
a will is a privilege and if it is not executed in strict compliance with state
law, it may be declared to be invalid and your property will pass as if you had
Q. Can I disinherit my children?
A. Yes, you can disinherit your children but you cannot disinherit your spouse.
Your spouse has a right to the greater of $50,000.00 or one-third of your estate.
Q. When should I update my will?
A. You should review your will with your attorney every few years or when
there is: a birth or adoption; a change of residence; the executor, guardian or
trustee named in your will becomes unavailable; you or your beneficiaries' financial
worth increases dramatically; a change in your marital status or that of a family
member; a change in the status of your business, a change in the tax laws; or the
death or the disability of anyone named in the will.
6. Testamentary Trusts
Would you like your children's inheritance managed for them until they reach the
age of 25 or even 35?
The answer is not to leave your estate directly to your children or to a
guardian but to provide in your will for a testamentary trust to be managed by a
bank or trusted friend. If your estate is left to a guardian for your child, the
guardian must turn the property over to the child when he or she reaches the age
of 18 to do as he or she wishes. When drafting a testamentary trust in your will,
consider the following situations of your children and grandchildren: 1) their ages;
2) their educational needs - the costs of undergraduate, graduate and technical
school; 3) the best age at which to distribute trust income and principal in a lump
sum or installments; 4) their ability to manage money (disabilities, alcoholism
and gambling problems); 5) their financial needs and earning capabilities; 6) if
disabled, the effect distributions may have on their eligibility for disability
benefits or medicaid; and 7) if divorced, on the verge of bankruptcy or being sued,
the need to safeguard their assets from creditors and ex- spouses.
The trust can provide for either specific monthly payments; payments in the discretion
of the trustee for the children's support, medical expenses and education; partial
distributions of principal at certain ages, e.g. one-third at 25 years of age, one-
third at 35 years of age and one-third at 45 years of age.
You should discuss the above with your attorney before executing a will.
California enacts landmark competency law.
California became the first state to enact legislation that includes specific medical
factors for judges to consider in determining a person's competency to make decisions
about medical treatment, marriages or contracts. The law, effective January 1, 1996,
requires judges to determine capacity based on: (a) alertness and attention, including
orientation to time and place; (b) ability to process information, including remembering
and recognizing others; (c) thought processes, including whether they experience
hallucinations or delusions; and (d) ability to control mood. (# 10306)
7. Start Estate Planning Now
Estate planning is not just for the old and wealthy. Even young, single people should
start legal, financial and medical planning for death or disability.
You should discuss the following legal tools with your attorney:
- Durable Powers of Attorney. By signing a power of attorney, you can authorize another
person to act on your behalf to perform any number of specified onto such as: real
estate transactions, banking, operation of a business, insurance or lawsuits. There
are two types of durable powers of attorney:* An "immediate power of attorney" which
is not affected by your subsequent disability or incapacity; and * A "springing
power of attorney" which does not go into effect until you become disabled or incapacitated.
- Trusts are an agreement under which a person or institution (trustee) holds legal
title to real or personal property for the benefit of another (beneficiary). The
person who creates the trust is known as the grantor.
The trust agreement sets forth the rights and responsibilities of all parties involved.
Living trusts, also known as inter vivos trusts, have numerous advantages including
proper management of assets; avoidance of probate; eliminating the need for guardianships,
life estates or joint ownership; and assuring privacy.
- The Living Will is a declaration which instructs your family and your doctor about
life-prolonging medical procedures when your condition is terminal and there is
no chance of recovery. Under constitutional and common law, you have the right to
refuse medical treatment. A living will gives you the opportunity to express your
wishes in advance, since you may not be able to make them known when it becomes
necessary to do so. Life prolonging procedures include hooking you up to a machine
when you cannot breathe on your own, performing operations or prescribing antibiotics
that cannot realistically increase your chance of recovery, starting your heart
mechanically when it has stopped beating or feeding you by tube.
- Health Care Proxies recognize your right to appoint a health care agent that you
trust to decide about medical treatment in the event that you become unable to decide
personally. Unless you specify otherwise, the agent will have the same authority
that you would decide about treatment. The authority encompasses the right to forego
treatment or to consent for needed treatment. The agent's authority begins only
when a physician determines that you have lost the capacity to decide about treatment.
- Wills. By executing a will, you may dispose of property at your death in the proportions
and to the persons you wish, appoint competent and trustworthy executors, trustees
and children's guardians and create testamentary trusts.
- Life Estates should be explored
- Joint Ownership should also be considered.
- Gifts can also be a significant element of one's estate-planning strategy.
8. Trustees' Duties
The responsibilities of a trustee are:
- Read a copy of the trust agreement, keep it with the trust records and review it
- Deposit checks or bank drafts funding the trust. Attach a photocopy of same to Schedule
"A" of the trust agreement.
- Obtain a federal employer identification number for the trust.
- Consult with your financial advisor as to the types of accounts (brokerage firm,
management account, bank account) to open and deposit funds. Under the Prudent Investor
Rule, trustees must formulate an overall investment strategy that takes into account
general economic conditions, inflation, the beneficiary's needs, the duration of
the trust and the tax impact. They usually must diversify their investments and
can delegate their duties to outside experts.
- Annual fiduciary tax returns (IRS form 1041) and equivalent state forms will be
due on or about April 15th of the year following the opening of the trust and each
subsequent year thereafter. Consult with your attorney or accountant for further
- Consider change of trustees when there is a change of circumstances.
- Review requirements for closing the trust with an attorney. (i.e. releases and final
tax returns.) For further information, order the "Living Trusts" pamphlet from the
For all legal information provided by Legalsurvival.com read the
© Copyright 1996-2001 by Legal Survival, LLC
Sponsored by: Friedman & Ranzenhofer, P.C. Buffalo, New York