The Law Offices of Daniel Timins Blog

When Should I (and Shouldn’t I) Have My Attorney Hold On to My Original Will?

Posted on September 21, 2015

An original will is a powerful legal document: It is almost always required to start a Probate proceeding, meaning that several estate plans could be confounded in its absence. This makes a will a very important document. The cynic in me gets extremely perturbed when I see an attorney presume possession of his client’s original will. This attorney is forcing the family to come back to him when the decedent dies, thereby getting a “second bite of the apple” by being in the best position to do the Probate. I have heard of 70 year old attorneys holding onto a 30 year old client’s original will, then the dying or going out of business before reuniting his client and

Destroy Your Old Will! Avoiding Problematic Probates

Posted on September 9, 2015

To probate a will you typically need the original document for the courts to commence the legal proceeding. Unlike Trusts, LLC Operating Agreements, Powers of Attorney, etc., where a copy shall typically suffice, a valid will is expected to be an original will. So what happens when there are two original wills that differ from one another? It’s more expensive: The first sentence of 99.9% of all wills is “I hereby revoke all wills and codicils.” This means that any previous version of an will is superseded by the new, most recent will. It also means that those parties who have been adversely-affected by the new will, must be given formal legal notice of the new will being offered

Why ITF & TOD Accounts Are (Sometimes) Worse Ways of Transferring Assets than Using a Will

Posted on August 24, 2015

If you read my blogpost dated August 8th, 2015 you saw my argument stating that “In Trust For” and “Transfer on Death” accounts are better ways of transferring your assets than using a will because these transfers are accomplished quickly, free of legal expenses, and are not public information. Transferring assets by probating a will, on the other hand, is not immediate, which assesses court filing fees and legal costs, and makes it a public affair. But I only told you one side of the story… There are several instances in which transferring assets by probating your will may be preferable, especially when utilizing a “Testamentary Trust” in your Last Will and Testament. While I can appreciate that the following

When to Begin Medicaid Planning

Posted on August 17, 2015

I have several prospective clients approach me to discuss Medicaid planning. They have typically just finished handling their own parent’s age-related issues (dementia, Parkinson’s Disease, etc.), and want their younger relatives to avoid the same kind of emotional turmoil and financial commitments when they age. Medicaid compliance requires a person to relinquish either assets or control over those assets, but many people in their 60s are just not ready to part with either of these. A large percentage of these individuals are not even retired and have yet to enjoy the best years of their lives in which they have the physical, mental, and emotional capacity to enjoy their free time. In many cases, their knee-jerk response is based on

Why ITF & TOD Accounts Are Better Ways of Transferring Assets Than Using a Will

Posted on August 8, 2015

Many financial institutions offer the account holder a choice of establishing a bank account as an “In Trust For” account and an investment account as a “Transfer on Death” account. For example, my bank account statement may say “Daniel Timins I.T.F. Barack Obama” or my investment account may be titled “Daniel Timins T.O.D. Herman Munster.” My personal choice of beneficiaries aside, while seeing these words on a statement may be a bit unnerving, there are huge post-mortem benefits to having ITF and TOD accounts: The accounts are solely under my control during my life (the beneficiary doesn’t even get statements during my life) They are revocable Upon my passing my beneficiary merely needs to show up at the bank with

Who Owns Your Money?: Correct Asset Titling Means Everything

Posted on August 6, 2015

“Titling” boils down to current and future ownership: An account with only your name on it means you own the account. Adding other individuals to the title determines who else has access to your accounts while you are alive, and what happens to those assets when you pass away. Titling your assets correctly can have a huge impact on taxes, transfer costs, and legal fees when unfortunate events happen to you. Owning an account jointly allows multiple parties to have full access to assets in the account. One critical caveat, which has led to a shocking number of legal disputes, is whether the account is created as Joint Tenants With Rights of Survivorship, or merely a “Convenience Account.” The former

How to Protect the Aging from Aging Issues

Posted on July 26, 2015

How does a person protect an aging family member who still has some decision making abilities? Waning decision making abilities are more likely for people as they age. I see elderly people get increasingly frustrated by mixing up their family members’ names, forgetting what they were talking about in mid-sentence, reminiscing about events that never took place. These individuals can still make certain decisions at certain times, but are not really 100% competent. The problem is that courts are loath to consider these people incapacitated, so younger family members are stuck worrying that a financial predator will strike the aging client in a moment of weakness. MONEY: When paid care givers are working at the homes of these individuals, it

Cain and Abel: When Siblings Despise Each Other

Posted on July 17, 2015

There are no perfect families. Even the first biblical family had an extreme sibling rivalry (with some rather bad results). And while most of us don’t have to worry about such an extreme outcome, many parents do worry that their children will not play well in the estate sandbox as their parents age and pass away. The worries: One child helps mom and dad as they age, is given a lot of money prior to and after their passing, and the other child brings a lawsuit for absconding with the money that they feel is one half theirs. One child helps mom and dad as they age, is given the same amount of money as the child who did nothing,

THE SILENT TWIN: How State Estate Taxes Have Replaced Federal Estate Tax Planning

Posted on July 17, 2015

To any one of a number of government entities the average person can be boiled down to one category: We are revenue-generating machines. Federal, state and local government entities know how to get their funding, as it seems almost every aspect of life (and yes, death too) is now taxable. And next to actually having to pay all these taxes, the most frustrating thing about taxes are that they are never as intuitively straight-forward as one would suspect. I met with a couple recently who is domiciled in New York. Their net worth is approximately $8,000,000, they are semi-retired, and their retirement income is substantial. Assets include a nice Manhattan apartment, a large sum of money in several retirement plans,

Contracts: Your Will and the Probate Process

Posted on July 17, 2015

Many people aren’t aware of the number of contracts that apply to them every day. Like all contracts, there are at least two parties to any given contract: Your bank account was opened by signing a contract under the bank’s terms; your attendance at the Yankee game is contingent on you following the 2 point font contractual terms on the back of the ticket; the credit card receipt you signed to pay for lunch today is a contract; even the US Constitution is a contract between “we the people” and the US government (though many would say one party is gravely in breach of their end of the bargain, but that is for someone else’s blog to address). Your Last

Smart Ideas for Making Your Agents Known (When Needed)

Posted on June 27, 2015

Too many attorneys make the mistake of not informing a person’s Power of Attorney, Health Care Agent or Executor that he/she has been named as a person’s agent or, even worse, not telling a client how to inform these people of their responsibilities. These practitioners appear to have the attitude of “I’ve been paid, you have your legal documents, let’s both move onto the next thing in our lives.” While this does not rise to the level of legal malpractice, it certainly is inconsiderate and potentially dangerous: These documents are not public record. If there is an emergency, how is a Health Care Agent going to be identified by the admitting health care facility? The documents may be hard to