Wills and Trusts
Wills and trusts are two different but necessary tools in any estate plan. Wills and trusts can allow a person to take control of their wealth and assets, plan for future health care, and help provide for family and loved ones. Most importantly, a well-developed estate plan can offer peace of mind. At Morgan Legal Group, P.C., our estate planning attorneys guide clients through essential document preparation for wills and trusts in order for every aspect of their estate to be secured for the future. Although they are not the only estate planning tools available, wills and trusts form an integral part in establishing a sound plan that covers the most critical areas of an individual’s finances and related affairs. It is also important to note that there isn’t just one type of will or trust. Whether an individual is looking to provide funds for a disabled family member, become eligible for Medicaid, or appoint a guardian for their children, there are a number of options available.
If you are looking to draft a will or trust, contact our estate planning attorneys at Morgan Legal Group, P.C. We will carefully evaluate your goals and needs and develop an estate plan that is right for you.
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important things you should know
Questions And Answers
Laws pertaining to a last will and testament can differ across each state. In New York, a will must abide by certain legal formalities in order to be considered a legitimate last will and testament. The document must be dated and signed by the testator (the maker of the will) in the presence of two witnesses. These witnesses should not be named beneficiaries in the will nor is it necessary for them to read the contents of the will. In addition, in New York a will can be used to appoint an executor who will be responsible for ensuring that the instructions and terms laid out in the will are carried out after the testator’s death. A testator may choose to modify or revoke their will at any time.
A will contest occurs when an interested party refutes the content or the validity of a will. In New York, only those interested parties who would be affected by a potential financial gain (or loss) through the probate of a will have the right to contest it. These include the decedent’s beneficiaries and heirs-at-law. However, having the standing required to challenge the probate of the will is only a small part of a will contest. Beneficiaries or heirs-at-law must prove that their challenge is warranted based on certain legal grounds. Under New York law, these grounds are listed as undue execution, revocation, incapacitation, fraud, or undue influence. It should also be noted that in cases where an individual has no financial interest, they may only object to the will’s designated executor. They may not challenge any other terms of the will.
Many people believe that drafting a last will and testament will safeguard their estate from probate proceedings. However, this is not the case. A will must be presented to New York’s Surrogate Court in order to be authenticated and approved for use in the formal transfer and distribution of a decedent’s assets. Probate provides a means of legally carrying out the provisions of a will in order to ensure that an estate is distributed according to the terms set down by the decedent in that document.
Enrolling in a pooled income trust in New York is a strategy that can be used to assist individuals who are looking to meet Medicaid’s income or asset threshold in order to qualify for the program. A pooled income trust essentially allows prospective Medicaid applicants to transfer excess assets into the trust so that they can be eligible for the program. In addition, this type of trust allows for individuals to access the funds in the trust in order to finance expenses not covered by Medicaid without the risk of being disqualified. In New York, pooled income trusts are operated by several non-profit organizations. As such, the enrollment process, minimum deposits, and fees for the trust can vary. This type of trust is intended for the elderly and individuals living with a disability.
A special needs trust is a financial tool used in estate planning that helps individuals with disabilities to finance certain expenses and maintain a quality standard of living. This type of trust is specifically designed to protect funds and assets for a person with a disability and retain their eligibility for government benefits. The funds and assets placed within a special needs trust are not counted towards any income eligibility limit. A trustee will be in charge of managing the funds of the trust for the beneficiary, which can be helpful for children who are minors or adults who are unable to manage their finances. It is important to note that a special needs trust is unique in that its funds cannot be used to pay for basic necessities such as housing, utilities, groceries or other items that are covered by public benefits.
A Medicaid Asset Protection Trust (MAPT) is a planning strategy that is implemented for the purpose of qualifying for Medicaid. As the name suggests, a MAPT also has the added benefit of safeguarding an applicant’s assets. This type of trust is similar to an irrevocable trust in that the funds and assets that are transferred into it are no longer considered to be owned by the applicant. As such, they cannot be counted towards Medicaid’s eligibility limit. However, the funds and assets in the trust can no longer be transferred back to the applicant as they now belong to the trust’s beneficiaries.