If you start to look into the subject of estate planning, you will definitely run across the word “probate” quite a bit. Here in New York, probate matters are handled by the Surrogate’s Court. In this post, we will look at the function of probate as it applies to elder law and estate planning matters.
Proving of a Last Will
One of the major misconceptions that people harbor about estate planning is the notion that a last will is the simplest and most efficient estate planning device to utilize. Individuals that adopt this perspective do not understand the fact that a will must be admitted to probate.
The court determines the validity of the will during this legal process. If any interested party wants to contest its legitimacy, a challenge could be presented before the court. Acceptable grounds would include coercion, fraud, improper execution, intimidation, and the incapacity of the testator.
During probate, creditors have a chance to come forward seeking payment from assets that are contained within the estate. In addition to handling this facet, the executor will identify and inventory the assets that will eventually be distributed to the heirs. The preparation can include appraisals and liquidation of resources.
Ultimately, when the court is satisfied that everything has been taken care of appropriately, the estate will be closed. At that point, the executor will get the green light to distribute assets to the inheritors in accordance with the wishes of the decedent as stated in the last will.
According to the Social Security Administration, a man that is turning 67 today has a life expectancy of 85 years, and it is 87 for a woman. The Alzheimer’s Association tells us that about 40% of people that are 85 and older have contracted Alzheimer’s disease.
These are a couple of very profound statistics when you put them together. Clearly, people with Alzheimer’s induced dementia are going to become unable to make their own decisions at some point in time. And of course, Alzheimer’s is not the only cause of incapacity among elders.
Who would act as your representative if you were to become unable to handle your affairs? In a very real sense, the answer is that it is entirely up to you.
If you do nothing to prepare for incapacity in advance, the court could be petitioned to appoint a guardian to act on your behalf. This is a necessary remedy, but the person that is chosen may not be the same individual that you would have selected when you were of sound mind.
You can take the matter into your own hands through the execution of the right legally binding documents. A living trust is a widely used estate planning tool, and you can name a disability trustee to act as the administrator in the event of your incapacity.
To complete the plan, you can add a durable power of attorney for property to give an agent of your choosing the ability to manage property that is not in a trust. A health care proxy should be added to name a medical decision-maker. When these documents in place, there would be no reason for the court to appoint a guardian.
While we are on the subject, we should look at a couple of additional devices that should be part of a well-constructed incapacity plan.
The Health Insurance Portability and Accountability Act (HIPAA) prohibits doctors from releasing medical information to anyone other than the patient. You can include a HIPAA waiver to give your health care agent, and anyone else that you choose, access to this important information.
A living will should be part of the plan as well. You use this document to state your preferences with regard to the use of life-sustaining measures like feeding tubes, artificial respiration and hydration, etc.
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