Wills, Trusts & Estates

The estate planning attorneys at the Law Offices of Todd Cushner & Associates possess an in-depth knowledge of the legal, and personal issues that often involve planning an estate. We understand all aspects of estate planning, including asset protection. Our experience in drafting wills and trusts ensures that our clients’ wishes are always carried out.

Our attorneys have a broad range of experience in a number of matters, including Wills, Trusts, Powers of Attorney, Health Care Proxies, Living Wills, Will Contests, as well as Probate and Estate Litigation. We have successfully represented clients in a broad range of Surrogate’s Court litigation, including contested probate proceedings.

Why Have a Will?

The primary reason for making a Will is to leave your property to those you care about and in the proportions that you choose. If someone dies without a Will, the property in their name in most cases will be distributed among family members, and perhaps not exactly the way the person would prefer.

Thus, if the deceased is survived by:

  • Spouse and descendants – the spouse take the first $50,000 and one-half the balance of the property, and the descendants share the rest
  • Spouse, but no descendants – the spouse takes all
  • A parent or parents, no spouse, no descendants – the parent or parents take all
  • Descendants, no spouse – the descendants take all
  • A parents’ descendants but none of the closer relatives – the parents’ descendants take all
wills, trusts & estates

Should you pass away without a Will and leave behind a child who is under 18-years-old, unless the child has another parent, the custody of the child will be in question. The court will often appoint a stranger to manage the money for your child. That’s why it’s important to have a Will to direct who should serve as Trustee/ Custodian of your child’s money should the situation arise.

Types of Trusts

Another way to manage your money is through a trust. A trust is a legal entity under which one person, the “trustee,” holds legal title to property for the benefit of others (the beneficiaries). The trustee must follow the rules provided in the trust instrument.

There are many types of trusts, and the one you choose will depend on your needs and the needs of the people you want to share your money and property with.

Revocable vs. Irrevocable Trusts

A “revocable” trust is one that may be changed or rescinded by the grantor, the person who created it. If you have second thoughts about a provision in the trust or change your mind about who should be the beneficiary, then you can modify the terms of the trust through a “trust amendment.”

The downside to a revocable trust is that assets funded into the trust will still be considered your own personal assets for creditor purposes. Therefore, a revocable trust offers no creditor protection if you are sued. Medicaid considers the funds that make up the trust (aka the principal) to be assets that are countable on determining Medicaid eligibility. Thus, revocable trusts are of no use in Medicaid planning.

An “irrevocable trust” cannot be modified or terminated without the permission of the beneficiary. After the grantor has transferred assets into the trust, they remove all of their ownership rights of the assets and the trust. The property is safe from creditors and is preserved for the beneficiaries.

Testamentary Trusts

Testamentary trusts are trusts that are created under a Will. The assets of these trusts are treated as available to the Medicaid applicant only to the extent that the trustee has an obligation to pay for the applicant’s support. Testamentary trusts can allow spouses to leave funds for their surviving institutionalized husband or wife that can be used to pay services that are not covered by Medicaid. These may include extra therapy, special equipment, evaluation by medical specialists, legal fees, transfers to another nursing home.

Supplemental Needs Trusts

For people who are disabled and under the age of 65, Medicaid has certain exceptions for care. Even after moving to a nursing home, if you have a relative who is under 65-years-old and disabled, you can transfer assets into a trust for their benefit without incurring any period of ineligibility. The drawback to Supplemental Needs Trusts, also called Special Needs Trusts, is that after the disabled individual dies, the state must be reimbursed for any Medicaid funds spent on behalf of the disabled person.

With proper preparation, a Will can be designed to support your family’s needs and concerns. Call the Law Offices of Todd Cushner & Associates for a free Will planning consultation.

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