The Surviving Spouse in Same-Sex Marriages: A New Federal Approach in New York

Several foreign countries, eight states, and the District of Columbia now permit gay couples to marry.  Many gay couples who are New York domiciliaries have been married in these jurisdictions.  New York recognizes these marriages, granting these couples equal protection under state law.  As to federal law, these duly married couples have until now been denied the same protection under federal law. 

On 23 February 2011, the Obama administration took a new legal position with respect to the 1996 Defense of Marriage Act (DOMA), in effect granting federal legal protections to married gay couples.  Section 3 of DOMA states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The administration's position does not go to the issue of whether same-sex couples should be allowed to marry.  Instead, the focus is on preventing federal discrimination against same-sex couples after they have been legally married.

Under this new approach, the burden of proof will now shift from a gay spouse or same-sex couple who challenges a federal statute to show that they are not prohibited under DOMA from making the claim and places the burden on the federal government to show that DOMA does not impermissibly discriminate against the gay spouse or couple.   

Courts will now apply a heightened standard of legal review to cases involving DOMA.  Since the passage of the law, courts have applied a legal standard of review called rational basis to all sexual orientation discrimination cases that concern federal issues.  For instance, same-sex couples who sought equal protection of the law under the Fifth Amendment (the Fourteenth Amendment's equal protection clause applies to the states) were generally denied equal protection so long as the government could state a rational basis for the existence of DOMA.  The government almost always won a legal challenge under rational basis review because the challenger of DOMA had the burden to show that there was no legitimate purpose to the law and that the means used to enforce the law were not rationally related to its purpose. 

But moving forward, the government will no longer defend the law under rational basis review.  Instead, a heightened standard will used by the federal courts in cases involving DOMA.  Henceforth, the burden will fall on the government to show that the law is substantially related to an important government objective.  The government will base its position on the legislative record used to pass the law. 

One case that will be affected by this new position is Windsor v. United States, No. 1:10-cv-8435,  filed in U.S. District Court in the Southern District of New York on November 9, 2010.  In the complaint, the plaintiff Edith Windsor seeks "a refund of the estate tax levied on a married same-sex couple, which would not have applied to a married straight couple, and which consequently violates the United States Constitution."  In 2007 Edith Windsor and Thea Spyer were married in Canada after an engagement lasting 40 years.  Two years later, Spyer passed away as a result of complications from a heart condition.

26 U.S.C. § 2056(a) permits an unlimited marital estate-tax deduction that allows property to pass from a decedent spouse's estate to the surviving spouse free of the federal estate tax.  But because of DOMA, married same-sex couples are denied this marital estate-tax deduction that is enjoyed by every other married couple.

Both spouses had done extensive estate planning, each creating revocable trusts.  According to the complaint, Edith "in her capacity as executor of Thea's estate, filed a Claim for Refund and Request for Abatement (Form 843) and a Disclosure Statement (Form 8275) with the IRS on April 7,2010, stating that Edie and Thea were lawfully married in Toronto, that New York State recognizes that marriage under local law, and that DOMA unconstitutionally discriminates on the basis of sexual orientation. As a result, Edie argued, Thea's estate is entitled to the marital deduction and to a refund in the amount of $363,053.00." (Windsor, at 19).

The IRS replied and denied the refund because "under DOMA '... the words [sic] "spouse" refers only to a person of the opposite sex who is a husband or a wife'. Section 2056 is inapplicable because the surviving spouse is not a spouse as defined by DOMA (Id.)."

But under the new Obama administration position, the federal government will no longer defend the legal position articulated by the IRS.  According to the letter from Attorney General Eric Holder to Speaker of the House John Boehner dated 23 February 2011, " heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law."

The net effect of the Holder memorandum is that the government will not file a motion to dismiss on or before March 11, 2011.  The case will move forward with the government still a party in the case, but the court will be instructed to apply a heightened standard to the case, and to remove Section 3 of DOMA as a barrier to possible recovery in this case.

If you would like to discuss your own personal situation with me, review your current Will, or put together an estate plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.
 
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The Medicaid Five-Year Look-Back Asset Transfer Rules: Avoiding Costly Errors in Long-Term Care Planning

For many people, Medicaid (a joint federal and state program) is their only available source for long-term nursing home care.  For those who can afford it, New York State provides a partnership for long-term care with some participating insurers.  Under this program, the insured person can apply for New York State Medicaid Extended Coverage that allows for either partial or total asset protection from the mandated federal estate recovery provisions described below. Even under this program, income is a factor in determining eligibility.

In 1993 Congress passed legislation requiring States to implement a mandatory estate recovery program for Medicaid recipients over the age of 55.  Three years later, Congress mandated that States set up agencies for the recovery of funds spent on long-term care from people who did not meet eligibility requirements.   Then in 2006 the Deficit Reduction Act (DRA 2005) inaugurated changes in the ineligibility period (or penalty period) to the Medicaid asset transfer rules.  Lawmakers were concerned that some Medicaid participants were meeting their eligibility by shifting assets to their children that would otherwise be used to cover the cost of their care.

To be eligible for long-term care in Medicaid nursing homes or for a community waiver, the person requiring the care must be receiving Social Security and his/her income and assets cannot exceed the income and asset guidelines (note that this chart has not changed for 2011).   DRA 2005 mandates a 60-month look-back period for any evidence of asset transfers, a significant increase from the prior three-year look back period.  If any evidence is found, then the clock for the look-back period will begin at the time of the application for services rather than the date of the asset transfer, a rather stiff penalty.

When contemplating a transfer of assets for the purpose of Medicaid long-term care eligibility, it is important to remember that any asset over which the individual retains control may be used to reimburse Medicaid for nursing home expenses.  And sometimes the best intentions of an individual can be defeated by a residual ownership interest.

Matter of Padulo v Reed presents such a scenario.  Between 1976 and 1994, Ada J. Romeo purchased U.S. savings bonds, naming herself and either her daughter Juliet Padulo or one of Juliet's children as the bond owners.  On 15 December 2001, Ada gave all her her bonds to Juliet, and Juliet distributed the bonds among herself and her children. 

In 2004 Ada moved to a nursing home.  In the months between July 2004 and February 2005, Juliet cashed out all of the bonds, including those that she had given to her children.   Juliet took the money and put it into a joint account that she held with her husband and her mother.  She used part of the money derived from the sale of the bonds to pay for Ada's nursing home care.  In September of 2005, Juliet applied for Medicaid benefits on behalf of her mother, thinking that she had met the then three-year look-back period under pre-DRA 2005 rules.  The New York State Department of Health denied the application.

The Appellate Division, Fourth Department agreed with the Department of Health.   Because the proceeds from the sale of the bonds were placed in a joint account with Ada, there was a presumption that Ada had full control over the funds and thus that the money belonged to her.  Joint bank accounts also have a right of survivorship, so it would have been possible for Ada to become the sole owner of the account had her daughter and son-in-law predeceased her.   Thus Ada's transfers to her daughter and grandchildren failed to satisfy the look-back period for Medicaid because she still maintained control over the money.  After Ada's death, her estate became subject to the federal estate recovery provisions for the cost of her nursing home care.

If you would like to discuss your own personal situation with me, review your current Will, or put together an estate plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

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Costly Omissions in Wills: The Missing Power of Appointment

We are  a "do-it-yourself" society.  If something needs to be done, then we will find a way to do it.  However, there are certain tasks that we should never tackle without expert professional help (in my case, plumbing goes to the top of the list).  Drafting a Will is one of those tasks because ambiguities and omissions in drafting can be very costly to those you leave behind.

Here are a few reasons why.  Each state has laws that govern the language, including terms of art (language with special legal meaning), the proper means of execution, and a set of distribution rules that must be clearly understood and clearly followed.  In addition, there are tax implications with respect to bequests.  These must be carefully analyzed with your attorney so as to minimize the impact on beneficiaries.  The reason that we write a Will in the first place is to protect the people we love.  By having an attorney draft your Will, you also ensure that the people in your life receive the care and financial support that they will need to carry on.  This is especially true for small children, persons with disabilities, persons with special needs, and surviving spouses or domestic partners.  Finally, things change every year in our lives and it is a very good practice to review the contents of your Will on a yearly basis.  You likely won't change your Will yearly, but you will better understand its meaning with respect to your present circumstances after this review.

Consider the case of Anita Hamilton [In the Matter of the Estate of Hamilton, 190 A.D.2d 927 (1993)].  She married Milton Hamilton in a second marriage.  Milton had two daughters from a prior marriage, Mary H. McLaughlin and Gwendolyn H. Stevens, and Anita had a son by a prior marriage, John H. Ricketson.  

On February 26, 1989  Milton passed away.  Over the years, Milton had drafted several Wills, one in 1966, one in 1975 revoking the 1966 Will, and one in 1982 revoking the 1975 Will. He had drafted his last Will and testament on April 5, 1982 and directing that his residuary estate should be divided into two funds.  Fund A was a marital deduction trust.  Fund B constituted Milton's bequests to his daughters.  With respect to Fund A, Milton directed that the remaining principal be "paid,  transferred or distributed ... in such manner ... as [Anita Hamilton] may by her last Will and Testament direct and appoint" (Hamilton, at 928). 

Milton's Will was very specific concerning this power of appointment.  It was  "exercisable only by specific reference to said power in [Hamilton's] last Will and Testament".  Failure to effectively exercise the power of appointment in this specific way meant that the assets remaining in Fund A passed to McLaughlin and Stevens.

Anita Hamilton passed away 15 days after her husband died.  Her last will and testament dated December 22, 1967, fifteen years before her husband had executed his last Will.  In Anita's Will were the following words:  "By this paragraph of my Last Will and Testament, I do specifically exercise the power of appointment given to me by paragraph "Sixth" of the Last Will and Testament of my husband ... dated the 26th day of August, 1966, in favor of my son, JOHN HENRY RICKETSON ... or to his issue him surviving, to the extent of seven-eighths (7/8ths) of the fund over which I have the power of appointment, and I give, devise and bequeath to SUE M. RICKETSON, wife of my son, one-eighth (1/8th) of the fund over which I have the power of appointment under the said Last Will and Testament of my husband ...  By these provisions, I do specifically exercise the power of appointment given to me by the Will of my said husband" (Id. at 928).  Both Milton's and Anita's Wills were admitted to probate. 

The Surrogate Court of Albany County looked at the specific language in Milton's 1982 Will and decreed that Anita had not made proper reference to that specific power of appointment in her Will.  Instead, she had referenced Milton's 1966 Will that had been revoked by two subsequent Wills.  Consequently, the court decreed that the principal of Fund A be awarded to Milton's daughter's.  Anita's son John Ricketson appealed.

The Appellate Court, Third Department affirmed the Surrogate Court's decision.  The Court made explicit reference to the language of EPTL 10-6.1:  "[i]f the donor has expressly directed that no instrument shall be effective to exercise the power unless it contains a specific reference to the power, an instrument not containing such reference does not validly exercise the power."  Because Anita's Will referenced a Will that had been revoked, her power of appointment failed.  The result was that her stepdaughters received what she had intended for her son and his family.

A carefully review of Anita's Will by an attorney would have revealed the omission.  A do-it-yourself Will in such a case would also be grossly ineffective to preserve the bequest.  Moreover, the Hamilton case illustrates the dependencies of one Will document on another Will document.  Every family is different and each person in it represents a unique instance.   A Will drafted by another family member could impact or limit your ability to pass on a bequest to a designated beneficiary.  That is why it is always best to consult and work with an attorney who is versed in these matters.

If you would like to discuss your own personal situation with me, review your current Will, or put together an estate plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

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The Life Estate, Part 2: The Problem of Children as Remaindermen

A life estate is a estate in land with a present life tenant, and a future vested remainderman.  Each person has different interests in the land.  The person who has a life estate in land is a legal life tenant and has a present interest in the land/property.  The life tenant is the measuring life, meaning that once the life tenant dies the property goes to the remainderman, the person named in the life estate agreement.   A remainderman has a vested future interest in the property.

Here is a typical scenario.  An aging parent wishes to remain in his/her home and to be cared for in the home for as long as possible.  To avoid any complications that might arise from ill health or dementia, the parent executes a new deed retaining exclusive use and occupancy of the property with the property passing to a named remainderman (usually a child) when the parent's life estate terminates.  The remainderman has a vested future interest in the property that will ripen into full ownership once the life estate expires.

Clearly this scenario works well in a predictable world.  But more often than not, your attorney will advise you to protect yourself against the following possible events:

• the remainderman precedes you in death;
• the remainderman suffers a catastrophic mental or physical illness;
• you and the remainderman have a serious falling out;
• family circumstances have changed and another child is a better candidate to receive the property.

To mitigate against such eventualities, the original donor/grantor of the life estate (usually the owner of the property at the time of the life estate agreement) may reserve for himself/herself not only a life estate but also a limited power of appointment.  The donor/grantor may then exercise the limited power of appointment to change the remainderman provided that s/he has the mental capacity required to transfer the property and that the change in remainderman is done through a properly executed written instrument.

Consider the case of Richard C. Voght and his three children.  In December 2006, Richard Voght executed a deed conveying property in Montgomery County to his son Gilbert M. Voght.  Richard reserved for himself a life estate as well as a limited power of appointment to be used, if at all, during Richard's lifetime.  In order to exercise this power of appointment, Richard had to execute another deed and make specific reference to the 2006 limited power of appointment.

One year later on December 2007, Richard exercised this limited power of appointment to remove Gilbert from the deed and to name his two siblings instead as sole owners of the property.  The 2007 deed  still reserved to Richard a life estate as well as the same limited power of appointment as in the previous 2006 conveyance.

Richard and his two other children then commenced an action to eject Gilbert from the property   Gilbert sought an injunction from the court and a determination that the 2007 deed did not transfer property rights to his siblings.  He also asked that the 2007 deed be corrected to reflect the language of the 2006 deed.  Richard and his remaining children moved for summary judgment.  The New York Supreme Court sided with Gilbert and confirmed his title in the property subject to his father's life estate.  In effect, the court determined that Richard had not reserved a limited power of appointment that could, if executed, change the identity of the remainderman.  The defendants appealed.

In Voght v. Voght, 64 A.D.3d 984, 882 N.Y.S.2d 551 (N.Y. App. Div. 3d Dep't 2009),  the Appellate Court overturned the lower court and found that Richard had indeed reserved a limited power of appointment for himself.  Citing EPTL 10-4.1,  the court found that a donor can transfer property or reserve to himself/herself the power with a written instrument executed with all due formalities, so long as the transfer is not used as a way of avoiding creditors.  What Gilbert had received in the 2006 conveyance was a vested remainder subject to complete defeasance if during Richard's lifetime he decided to use his limited power of appointment.  Thus the 2007 deed completely divested Gilbert of the property and gave it to his siblings instead as remaindermen in the life estate -- for the time being at least, until such time as he chose to exercise his limited power of appointment again. 

The Voght case is a cautionary tale about the benefits of creating a life estate agreement with a limited power of appointment.  Circumstances may change such that there is a need to name a different remainderman. However, it must be kept in mind that a change in remainderman can have a disruptive effect on an estate plan.  A life estate is best used as a tool for long-term estate planning where the totality of the circumstances warrant it.  Depending upon your goals, an attorney can suggest alternatives, including a trust, that can not only achieve your estate planning objectives but also maintain family harmony.

If you would like to discuss your own personal situation with me, review your current legal life plan, or put together a legal life plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

The Life Estate, Part 1: Defining the Asset Conveyed

Life estates are sometimes used in estate planning to avoid probate and/or to make certain that the intended person receives the asset.  Life estates are sophisticated planning tools and you should seek the advise of an attorney to draft a document that will meet your individual needs.  As we will see in future installments of this series, problems can arise from the conveyance of a life estate if not done properly.  Estate problems can also be avoided with a carefully crafted life estate.

A life estate is a estate in land with a present life tenant, and a future vested remainderman.  Each person has different interests in the land.  The person who has a life estate in land is a legal life tenant and has a present interest in the land/property.  The life tenant is the measuring life, meaning that once the life tenant dies the property goes to the remainderman, the person named in the life estate agreement.   A remainderman has a vested future interest in the property, meaning that s/he has standing before a court to bring an action against a life tenant for waste.

The life tenant has the present use and enjoyment of the land during his/her lifetime, including derivative income from rents, agricultural, and other uses, while the remainderman waits patiently for his/her future full ownership to mature at the death of the life tenant.  However, the life tenant may not engage in waste.  Waste is a legal theory that gives rise to a cause of action by the remainderman.  There are three types of waste that can give rise to a cause of action by a remainderman.

The first type of waste is called permissive waste.  Here the life tenant fails to do something to maintain the property either physically or financially.  For example, the life tenant fails to make ordinary repairs, pay maintenance charges, pay taxes, or pay the mortgage or mortgage interest on the property.  Permissive waste is like the sin of omission.  There is no bad act per se, but the failure to act results in the damage.

If the failure to act causes permissive waste, it it better for a life tenant to improve the property?  Not if the improvement changes the character of the property.  That is called ameliorative waste. The life tenant may not engage in ameliorative waste even if the improvement increases the value of the land.  The remainderman can ask the court for injunctive relief, even if the property is in miserable condition.  The exception is when the neighborhood has sufficiently changed from residential to commercial.  The life tenant may then change the nature of the land use from residential to commercial without committing ameliorative waste.

Voluntary waste occurs when the life tenant intentionally or negligently causes harm to the property, or depletes its resources.  The exception to this rule is when there is a pre-existing use, if for instance part of the property was originally used for lumbering.  Where there has been continuing exploitation of a resource already in use, then there is no voluntary waste.

Where a court finds waste, the remainderman may be awarded money damages for the loss, the life tenant may be ordered to restore the property to its original state, or the court may divest the life tenant of the property and vest title immediately in the remainderman.

While a life estate can be a good tool in estate planning, the language of the life estate agreement has to be carefully crafted by an attorney to avoid potential problems.  For instance, a life estate is a terminable interest and thus may not qualify for the estate tax marital deduction.  Also, a life tenant cannot will ownership in a life estate.  Therefore, careful consideration of the totality of the family's circumstances must be taken into account so that there are no unintended consequences.  The life tenant may become physically or mentally disabled and inadvertently commit permissive waste as a result.  The agreement should include a process for taking care of necessary payments in the event of such incapacity.  Finally, the remainderman may die before the life tenant.  It is thus very important to draft a life estate agreement that takes this possibility into account.

In subsequent posts in this series, we will look at cases where a life estate is at the center of the estate dispute.  If you would like to discuss your own personal situation with me, review your current legal life plan, or put together a legal life plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form.  I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

A Thanksgiving Checklist as We Count Our Blessings...

More than any other holiday, Thanksgiving is the time when we gather around the table to celebrate with family and friends.  Many of you are traveling to visit your family, and many of you are receiving family and friends for Thanksgiving.  Soon there will be the familiar and anticipated aromas coming from the kitchen and we will gather around the table to enjoy a fabulous meal prepared by loving hands and give thanks for all of our blessings.

This is also the time of year that I suggest for an annual review of your legal life plan because the people you love and want to protect are right there with you.  So this weekend, as you savor the leftovers, ask yourself the following questions.

• Do I need a Will?
• If I have a Will, has anything major occured in my life this past year so that I should review it with an attorney?
• Do I need to look into setting up a trust?
• Have I reviewed all of my beneficiary designations on such things as life insurance policies and retirement plans?
• Do I need a living Will?
• Do I need a Power of Attorney for financial matters?
• Do I need a Power of Attorney for health care?
• Do I need a prenuptial agreement?
• Do I need a postnuptial agreement?
• Do I need a domestic partnership agreement?

If you would like to discuss your own personal situation with me, review your current legal life plan, or put together a legal life plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

From my home to yours, I wish you a very Happy Thanksgiving!  May you and your family continue to be blessed.

Mental Capacity and Marriage in New York, Part 3: The Secret Marriage

Marriage fraud has always had as a consequence the disruption of family estate planning, or even the potential of an unfair result where the state's intestate laws are applied when the decedent dies without a Will.  But if the bride or groom suffers from dementia and their fiance(e) has been in a caregiver position, the resulting marriage could be considered a form of elder abuse because the person suffering from dementia is being exploited for financial reasons.

Consider the case in Matter of Berk, 2010 NY Slip Op 02139 [2d Dept 2010]).  Irving Berk was a very successful businessman, having founded the Berk Trade and Business School.  In 1982, he executed a Will naming his sons Joel and Harvey as co-executors.  Over the next few years, Irving's memory began to fail.  His physical health also deteriorated, and he became wheelchair bound.    In 1997 his sons decided to hire a live-in caregiver. At the time, Irving Berk was 91 years old.  His caregiver, a recent immigrant from China named Hua Wang (also known as Judy Wang), was 40 years old.

Friends of Irving reported that Wang took advantage of Berk's increasing dependency on her, and that she physically and verbally abused him.  By 2005 Irving Berk could no longer recognize his sons who by then were contemplating guardianship proceedings.   As part of this process, Irving was examined in April 2007 by a physician who diagnosed him as having dementia and stated that Berk did not possess the mental capacity to enter into contracts.  His family physician who examined him a short time later found that Irving did not have the mental capacity to handle his social affairs.

Nevertheless, on 17 June 2005 Irving Berk and Judy Wang were married in the civil ceremony in the New York City Clerk's Office.   The marriage was kept a secret.  Neither Berk nor Wang wore wedding bands thereafter, nor did family and friends ever witness displays of affection between them.

On 16 June 2006, Irving Berk died leaving an estate worth more than $5 million.  The day before the funeral, Wang informed his sons of the secret marriage as they drove to the funeral home.  When the Will was read, it was discovered that Irving Berk had never changed his Will to make his new wife a beneficiary.  The named beneficiaries remained his two sons and four grandchildren.  Because Irving had made no provision for his new wife in the Will, Judy was now entitled to ask for the elective share. 

On 29 December 2006, after the Will was filed for probate and within the requisite six months after the Will was probated, Judy Wang Berk petitioned the Surrogate's Court in King's County for a determination of her right to take her elective share as Irving's surviving spouse.  Under New York law, the surviving spouse is entitled to $50,000 or one-third of the decedent spouse's estate, whichever is greater.   The Surrogate found that Judy was married to the decedent at the time of his death and that, as a matter of law, she was entitled to her elective share under EPTL 5-1.1-A [a].

Berk's sons appealed.  The Appellate Division, Second Department found that Judy Wang had married Irving Berk in the full knowledge that he lacked the mental capacity to consent to a marriage.   Under the principles of equity, the court found that Wang should thus not be unjustly enriched because she took unfair advantage of Berk's mental incapacity at the time of their marriage.

Over 5 million people are affected by Alzheimer's disease and other forms of dementia, and this number is expected to grow.  The time is now to protect your assets and your loved ones.  You cannot afford to wait for a diagnosis because once you have been diagnosed with dementia, your diminished mental capacity will prevent you from taking the necessary legal steps to protect yourself, your property, and your family.

What can you do to protect yourself?  Irving Berk had a Will, after all.  A Will is certainly a good first step, but it is not enough.  Unless the Will has been carefully drafted by an attorney to make sure that it is in compliance with New York Law and contains the necessary language about the elective share so as to mitigate against unscrupulous persons, then the door is left open for a sham marriage or other forms of unjust enrichment to occur.  Do-it-yourself online wills should be used with extreme caution or not at all as a result.

Secondly, you should meet with your attorney at least once a year in the same way that you meet with your doctor for your annual physical exam.  Your attorney will ask you questions to determine what has changed in your personal and legal affairs, and may suggest redoing your Will or adding a codicil based upon your responses.  Your attorney will also evaluate your mental capacity as you answer the questions.  If the attorney determines that there is a doubt about your mental capacity, then your attorney will strongly advise that any codicils or new Will be videotaped during the execution ceremony.  This service is worth its weight in gold.

Next, your attorney may suggest that you place you assets into a trust.  If you go this route, you may want to execute a pour-over Will, meaning that your assets will go directly into the trust at the time of your death, to be administered according to the terms of the trust.  Remember that assets such as bank accounts and property that can be held jointly are vulnerable to sham marriage schemes.  You may want to re-title these in the name of the trust.  Note that trusts are contracts, and that contracts require the highest level of mental capacity in New York.  If you wait too long, you may not have the requisite mental capacity to execute the trust documents.

You will also need full mental capacity to give a durable power of attorney to someone you trust or to your bank so that your affairs can be managed should you lose mental capacity.  Your attorney will discuss these options with you in detail so that you comfortable with your choices.

Finally, your attorney will review your planning for medical decision-making including having a living Will and a health care proxy.  These are known as advance directives.   The case does not disclose whether Irving Berk had these instruments in place.  If he did not, Judy Wang Berk as his legal wife would have been the one to make the decisions about his health care, and not his sons.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation  simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.