Scenario 1: You and your spouse have joint card debt.

If you have a joint credit card and either account holder dies, it’s up to the other account holder to pay back the debt. This is true even if you signed as a co-signer and you never used the card. You’ll be responsible for the entire amount even if the deceased spouse was the one who racked up all the charges.

Scenario 2: You have individual card debt.

If you have an individual credit card, this debt must still be repaid but it won’t generally fall to your spouse to do so. Once you die, all your property, including any debts you have, must get repaid through the probate process. Your estate administrator will notify creditors of your death. After that the creditors have a limited time in which to file a claim against your estate. If they don’t file, they don’t get repaid. Also, if they file and the estate doesn’t have enough money to pay the debt back, they also may not get repaid.

Scenario 3: You are an authorized user on your spouse’s card and your spouse dies.

An authorized user is not an account holder and, like an individual card holder, is not obligated to pay on the card holder’s account even if he or she made the purchases. However, not all credit cards allow “authorized users,” so always be sure you aren’t a joint account holder instead.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

It typically takes some time for the law to catch up to changes in technology and society. For many of us, we have online profiles, accounts, or bill payments that play a major part of our life. But how do we take care of these assets if we are incapacitated or transfer them after we die? It’s a question that we need to address carefully when developing an estate plan.

Part 1: Reviewing Your Online Existence. What do you have online? Is it a Facebook account or a Twitter account that you don’t use very often? These assets may not require you to take a lot of preparatory steps. But what about an online bank account? What if you only pay your bills online? The more complicated and important your online existence is, the more steps you’ll need to take.

Part 2: Preparing Your Digital Assets. A good practice to ensure your online assets are properly taken care of is to first collect everything you have. A list of all your online accounts, profiles, settings, and every digital property you have is a necessity. You’ll have to include the passwords and access information and make sure they are categorized so each can be dealt with properly.

Part 3: Transferring Your Digital Existence. You’ll have to ensure there is someone who can take over your online bills, manage your accounts, and be able to access them without a problem. A power of attorney can help you do this, as well as make specific gifts in your will. Talk to your Estate Planning attorney for more detailed information about this process.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

A durable power of attorney for finances lets you choose someone to take over your financial responsibilities when you become sick or otherwise unable to manage them. Your attorney can tell you what specific steps you need to take to create this important document, but you can get a head start on the process by reviewing our brief checklist.

• Preparation. Take some time to learn about powers of attorney and what they can do for you. Make a list of questions you have and ask your attorney for advice if you can’t decide what you want or need.
• Attorneys-in-Fact. The person who you appoint to manage your finances is called your attorney-in-fact or your agent. Select someone you trust who is responsible and good with financial matters. Though called an attorney-in-fact, the person you choose does not have to be a lawyer. Choose more than one and list the others as alternates who can take over the duties in case the original attorney-in-fact is unable to.  Also, ask each candidate before including their names in the document.
• Powers. Your financial power of attorney can be as detailed or as general as you wish. Make sure you review the document to be sure you agree with all the powers outlined within it.

• Documentation and Execution. Your financial POA must meet the requirements as made by the law. You should schedule a meeting with your attorney to formally execute the document.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Previously, we discussed the New York legislature’s enactment of default post-divorce probate statutes. These rules help divorced residents who failed to revise their wills after divorcing their former spouses. If you bequeathed your property to your former spouse while you were married and before your divorce, New York law treats your former spouse as having predeceased you. In this case, the specific bequests to your spouse would fail by operation of law, and your next-of-kin or surviving heir will inherit your property.

However, not all divorces are acrimonious, and some spouses may even remain close friends after they divorce. Although rare, these situations exist. If you and your former spouse remain trusted friends, and you do not want to change your will and dispositions of property in her favor, you need to make sure your will reflects this intent. Your probate attorney should incorporate language that specifically states that you amended your will or redrafted your will after your divorce. Furthermore, your will should contain specific language stating that you intended that your former spouse remain a beneficiary under your will after your divorce became final. Adding this language can prove that you reviewed your will after your divorce and chose to keep it the same.

By taking proper legal steps and scheduling an appointment with our office, we may be able to help you draft your post-divorce estate planning documents accordingly. We can tailor your estate planning documents accordingly by considering your personal needs. You may also ask us to help you draft a new will if you remarry and make special provisions taking into account your blended family’s needs.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Although New York law may revoke any prior bequests to your former spouse in an unchanged will, problems could arise if you failed to amend your other estate planning documents, including your trusts after you divorce your former spouse. You can call our office and schedule a consultation to help you understand your estate planning options after divorce.

The New York legislature amended the probate laws dealing with revocable dispositions or testamentary substitutes. According to the new law, divorce not only changes the beneficiary designations within your will previously naming your former spouse as your beneficiary, but it also changes other testamentary documents, including power of attorney designations.

What this means is that if your former spouse had a power of attorney – either financial or medical – the law assumes you meant to revoke her of these powers after your divorce. Similarly, jointly owned bank accounts will automatically terminate and sever the jointly owned account into separate accounts or accounts that you would own as tenants in common. Furthermore, if you previously appointed your spouse as your personal representative or executor to administer your will, New York law assumes that you meant to revoke or change the designee.

However, in some situations, your former spouse could challenge the state statute and petition a court to uphold the previous designation. If your former spouse can prove that you intended to leave your will or power of attorney as-is without changing your previous designation with clear and convincing evidence, a Surrogate Court may uphold the previous designation and leave your former spouse as your attorney-in-fact. To minimize any future litigation you should discuss the effects of divorce on these power of attorney or healthcare directive documents with our office.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

The U.S. Census Bureau reported that as of 2009, more than 50 percent of first marriages in this country ended in divorce. The divorce rates for second and third marriages were even higher, and almost 75 percent of third marriages ended in divorce. Unfortunately, divorcing spouses caught up in the turmoil of untangling their married lives during the divorce process may not consider their futures without their spouses, and few of them may think about their estate planning documents. Many divorcees forget about changing their wills and revising them.

Divorce is a life-changing event, and not all divorcing spouses seriously consider revising their wills to ensure their former spouses will not inherit their property upon death. If you draft your will while married and subsequently divorce your spouse, will your former spouse inherit your property? That depends on your state’s probate and divorce laws.  According to New York law, absent a specific provision to the contrary in your will, any provisions in your will dealing with your former spouse are void after a divorce.  However, you still will need to update your will to be sure your affairs are handled properly by the person(s) of your choosing.

In making sure that divorcing spouses could rely on New York state default laws if they failed to amend or revoke their wills after divorce, the New York General Assembly considered situations in which divorcing spouses unintentionally left their wills intact after finalizing their divorces. For blended families and families with children from previous marriages, amending or updating estate planning documents is especially important. Because both spouses may have children from previous marriages and may have children together, drafting new wills and other estate planning documents forces these spouses to avoid making unintended bequests through proper estate planning.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Your estate planning attorney can help you draft a special needs trust for the benefit of your special needs child or other family member. After you select a trusted individual that will serve as your trustee, you need to make sure your special needs trust complies with New York State law.

Your attorney must make sure that the trustee will use your assets within your special needs trust only for a limited purpose. Because you may not want your special needs trust property to pay for necessary items that Supplemental Security Income (“SSI”) should cover, you can give your trustee specific powers to use the money for other incidental expenses. Your attorney will most likely designate your special needs or supplemental needs trust as an “irrevocable special needs trust for the benefit of X.” Pursuant to New York law, your attorney should also insert additional language in your trust document to make sure that your estate assets are used only for limited purposes without regard to other expenses or individuals. You must also go over which property to place in your special needs trust.

A special needs trust may help your estate avoid unnecessary property dissipation, legal fees and administration expenses. Because many New Yorkers are unaware of how to create a special needs trust, they may simply bequeath their property to others with the expectation that they will use your bequest to help your loved family members afford their special care to address their medical and financial needs. Often, this plan may not turn out to be the best long-term option. If you do not set up a special needs trust but bequeath your property to others with the hopes that they may take care of your children or other loved ones with special needs, you may be subject to unnecessary income taxes, subject to an equitable property distribution by divorce or subject to claims filed by creditors during bankruptcy. Additionally, they may not be required legally to assist your special needs child.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Why would you want to draft a special needs trust for your disabled child? By creating a special needs trust or supplemental needs trust, you may be able to ensure that your dependent child or family member is able to avoid becoming inadvertently disqualified from receiving financial support from the state and federal governments. In other words, by creating a special needs trust, you can help your special needs child or family member continue receiving monetary and medical government benefits without regard to legal monetary qualification and income limits.

Specifically, the Social Security Administration administers the federal Social Security Act of 1935. This act allows your loved ones with special needs to apply for Social Security disability benefits in limited circumstances. Generally, the Social Security Administration limits provide those with permanent and serious disabilities monthly financial benefits for necessities, including shelter and clothing, separate health insurance benefits and food stamps upon a showing of financial and medical need during the application process. Supplemental Security Income or “SSI” helps those with limited incomes and insufficient work credits who are able to prove the existence of a long-term disability, those who are permanently blind, and those who are age 65 or older.

To qualify for SSI, your special needs child or other family member must have a limited income and limited assets. Typically, the administration limits assets to $2,000, but excludes a primary residence and a vehicle for work or medical reasons.  Because your estate assets may count toward the income threshold if you bequeathed it (gave it) to your special needs child, you may want to avoid unintentionally disqualifying your child from receiving governmental assistance. You can do this by asking your probate attorney to help you draft a special needs trust or supplemental needs trust to benefit your child without disqualifying him from receiving federal SSI benefits.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Special needs planning is often a part of a parent or other family member’s estate planning considerations. To ensure that you make adequate financial arrangements through proper estate planning to protect your loved ones with special needs, you may need to draft special estate planning documents. Because of the legal nuances involved in estate planning, setting up a time to discuss your estate plans with our office may be a wise investment.

Setting up a special needs trust may be necessary for your special needs planning. If you are a parent of a child with special needs, including a child with a physical or mental disability requiring long-term care, you may want to consider setting up a special needs trust. You can also establish a special needs trust if you are a sibling, guardian or any other family member with concerns regarding the financial well-being of your ward or family member with special needs.

Many lawyers and judges refer to a “special needs trust” as a “supplemental needs trust.” Regardless of the terminology used, a special needs trust allows you to appoint someone to safeguard your estate assets for the financial well-being and benefit of your special needs child if you are no longer able to take care of him due to mental incapacity or death. You will need to select a trusted individual to serve as the trustee of your special needs or supplemental needs trust and make sure that you discuss your concerns and your child’s needs, including the suitability of your chosen trustee with your estate planning attorney. Your estate planning attorney should review your individual circumstances and your financial expectations regarding your special needs trust documents.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Information from the National Consumer Law Center underlines the importance of avoiding predatory living trust scammers. Unfortunately, businesses purporting living trust document preparation services often target senior citizens. They may overinflate the importance of living trusts, overemphasize the time and expenses associated with probate and offer senior citizens with limited resources a way to dispose of their assets through coercive sales tactics. Before you pay money to a company that promises you a written living trust plan for a fee, be sure to use caution and exercise your best judgment. If it is too good to be true, it probably is.

A living trust is a legal written document that allows you – the trustor or grantor – to place your assets in trust while you are still living. Although living trusts may be an effective way to avoid probate procedures, only a qualified estate planning attorney can help you decide if a living trust would benefit you more than a written will would benefit you.

Using emotional pleas and deceptive offers to transfer assets through living trusts, these predatory living trust companies promise documents and legal preparation services at low prices. They may even offer self-help kits that allow you to quickly prepare your own trust documents. The best way to avoid these deceptive services is to avoid companies that use names of illegitimate nonprofit organizations.

Often, living trust scammers operate through trust mills and sell their services using company names that may sound similar to a legitimate organization’s name. For instance, a predatory living trust company may use a name such as AARPP, which has no affiliation to the AARP. In fact, the AARP neither endorses nor encourages its members to use living trusts. Sometimes, these predatory living trust scammers can use their services as a deceptive way to collect your private information, including financial information.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.