Friday, October 24, 2014

Suspension, Termination and Conflicts Relating to Advance Directives and Powers of Attorney

Powers of attorney are commonly used instruments, but few people spend the time to really understand how they actually operate. This includes attorneys and lay persons. Depending on whether a power of attorney is considered durable, there are certain events, such as a principal's subsequent incapacity, which may limit, or restrain an agent from exercising his or her enumerated powers pursuant to the power of attorney instrument.

Let's take a look at just some of the events which can result in a suspension or termination of a power of attorney. Firstly, if a power of attorney is not durable, meaning it does not contain certain language referenced by law, the following events will terminate a power of attorney. 1) principal dies, 2) becomes incapacitated. Of course a subsequently executed "poa" that explicitly revokes all previous ones, will also result in its termination.

If a poa is durable, the scenario mentioned above is a little different. While the death of the principal still results in termination, subsequent incapacity of the principal could lead to a multitude of scenarios. If a petition to determine the incapacity of the principle is filed, the authorities granted in the power of attorney are suspended until the petition is dismissed or the court enters an order authorizing the agent to carry out powers granted to him. Certain powers, like the authority to make health care decisions for the principal, remain effective until the Court orders otherwise.

In emergency situations, if the agent feels he needs to act on the principal's behalf the agent may ask or "petition" the court to allow him to use powers which are otherwise suspended, after a petition to determine incapacity has been filed.

Other issues arise when powers of attorney conflict with advance directives which the principal may have executed and which may have given different individuals authority to act on his or her behalf. These disputes sometimes involve family members, who have different opinions on what is best for the principal. The law provides that if an advance directive and a poa conflict, the advance directive controls, unless a poa is later executed, and expressly states otherwise.

While do-it your self forms for powers of attorney and other documents such as a living will and advance directive are easily obtainable, understanding how these instruments interact and often conflict, requires a little bit of patience, and in many instances some attorney advice.
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Thursday, October 23, 2014

What Is An Executor Of An Estate

You can start planning your estate at any time. Typically, though, most people don't begin to draft their Will, or establish a trust to hold property, until the "big" things in life happen -- like getting married, buying a home, having children, or starting a business.

Wednesday, October 22, 2014

Probate and Administrative Process, Know Your Rights

Probate is the system in which the court's system's method of processing the estates of a dead person. It is a legal document that enables the administration of the estate of the deceased. It allows for the resolving of claims and distribution of the deceased's will. Any grievances surrounding a deceased person's estate are filed in the probate court also known as the surrogate court. Once probated, the will becomes a legal instrument that can be enforced by the executor.

Administration process

Administration process of an estate on the other hand is the process by which the deceased person's assets are collected, maintained and distributed. An estate administrator sees to the proper administration of the will.

The Probate process

The probate process begins after the death of a person. An interested person files an application to administer the estate; a fiduciary is then appointed who is to administer the estate and at times may be required to pay a bond to safeguard and to insure the estate. Creditors are notified and legal notices published. There may be filed a petition to appoint a personal representative may need to be filed and letters of administration obtained. All these processes must be done in accordance with the limitation clause.

Property that avoids probate

Property that passes to another person contractually upon the death of a person does not enter probate for example a jointly owned property with rights of survivorship. Property held in a revocable or irrevocable trust that was created when the grantor's was still alive does not also enter probate. In most of these cases the property is distributed privately and without many issues thus no court action is required.

What happens in the probate and administrative process?

After a probate case has been filed in court, an inventory is entered and the deceased's property collected. The debts and taxes are paid first then the remaining property distributed to the beneficiaries. The probate and administrative process may be challenged at any time as a whole or part of it. The issues that arise during such hearings include will contests and paternity issues and these have to be solved before the matter is decided.

The need for the appointment of an administrator arises where the deceased left no will, some assets are not disposed of by the will, in cases where there is a will however, the case goes to probate directly. The estate administrators act like will executors but where the will does not state how to distribute of property, they follow the laid down laws.

Visit the Law Offices Roman Aminov Brooklyn to learn more on Probate Attorney Brooklyn law processes.
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Tuesday, October 21, 2014

QDRO Forms to Divide Pension Benefits in Divorce - "Shared Interest" Or "Separate Interest" Approach

Many people facing the prospect of divorce are surprised to learn that pension benefits accrued during the course of a marriage are considered marital property (or, in some states such as California, community property) that is divided between the spouses upon divorce. A pension plan falls under the category of retirement plans known as defined benefit plans. These types of retirement plans generally provide that upon retirement, the participant (employee) is entitled to a monthly annuity that is payable over his or her lifetime.

Because of certain provisions contained a Federal law known as the Employment Retirement Security Act, a divorce judgment or matrimonial settlement agreement, standing alone, is not a legally sufficient mechanism for dividing a pension plan. It is essential that a further order, known as a qualified domestic relations order (QDRO) be entered by the court and approved by the pension plan administrator.

In situations where the participant spouse is not yet retired, the QDRO form can utilize two different methods for dividing pension benefits. These include the "shared interest approach" and "separate interest approach."

If a QDRO form uses the Shared Interest Approach, payments to the Alternate Payee cannot begin until the Participant chooses to retire and begins to receive a retirement allowance. Furthermore, payments to the Alternate Payee must end upon the Participant's death unless the Alternate Payee was designated in the QDRO as the surviving spouse of the Participant for the purpose of electing a Qualified Joint and Survivor Annuity and such election was elected by the Participant at the time of the Participant's retirement.

If a QDRO form applies the Separate Interest Approach, a "separate interest" is carved out for the Alternate Payee and adjusted to his or her actuarial life expectancy. In addition, the Alternate Payee controls the timing and manner of his or her receipt of the benefit payments. The Alternate Payee can commence receiving benefits at the Participant's earliest retirement date, rather than wait for the Participant to begin to receive a retirement allowance.

In most instances, it is highly beneficial for the non-participant spouse that the QDRO form utilize a separate interest approach. Sample QDRO forms are available for download. Upon completion of a proposed QDRO form, the document must be submitted to the pension plan administrator for approval, and, thereafter, to the divorce court adjudicating the matter.

QDRO forms using both the Shared Interest Approach and Separate Interest Approach are available for download from Marc A. Rapaport is a divorce attorney with 15 years of experience, and he regularly appears in the national media, including NBC News, the National Law Journal, New York Magazine, New York Law Journal, and more. Mr. Rapaport is the founder of, an online provider of QDRO forms and information for dividing pensions, 401k's and other retirement assets in divorce matters.
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Monday, October 20, 2014

Living Will Or Advance Directive

A Living Will, is basically a legal document that describes the preferences of an individual, if he/she is unable to communicate properly, in case of terminal illness or other reasons like getting incapacitated, being in consistent state of coma, unconsciousness, and incapability to respond to the worldly events. An individual in condition of terminal illness, can clearly specify his/her desire to go for a medical treatment or not in the living will. A living Will can not be considered as a Will or a Testament and can not replace it at any point of time. Both Living Will and Will constitute a comprehensive estate plan.

Once a living will is drafted, it should be kept safe, and made known to the concerned medical and legal authorities. One can also chose a person, in the living will, to act as his/her representative for any specific kind of decisions on the individual's behalf. A Living will is also called an Advance Directive.

The Advantages of a Living Will

The most important advantage, a living will provides is the assurance of the unhindered execution of certain actions, an individual wishes to get done. Once a living will is drafted and signed off, the statements are guaranteed to be carried on, as per their design, irrespective of the individual's physical state. Another major advantage Living will serves, is the possibility of a healthy and appropriate resolution to any dispute, regarding the property or other issues that may crop up among the subject's family, friends and close relatives.

A Living will is extremely facilitative, when the patient's burdens of treatment gets more overwhelming than the benefits it offers. Living wills assures that your doctors and physicians conform to your wishes and requirements, if you are not able to convey this to them. In most of the cases, doctors do what they think is right and needful. It is of significant importance that an individual lets his wishes indubitably acknowledged by everyone, because if he/she is incapable to express, as to whether he would like to stay alive by artificial means or medical support and suffer beyond tolerance, or rather prefer dying in peace, the law and medical practitioners would always try to assist as much as they can to make the person live. One can alter and update the course of actions in their living will if they can determine this, by thinking about such things much in advance.

Once a living will is prepared, designed and signed off, the law is bound to follow the instructions as per decided by the living will. In case a living will (or advanced directive) has been executed for the patient, the medical institutions taking care of the patient must always properly document and record this in his history. There are several regulations determined by the local laws that govern the living will and its execution. All the Health care institutions and organization must comply to these regulations.

Living will is very substantial in the situations regarding health care, mostly for unpredictable cases like accident etc. It is advisable that everyone must prepare in advance to such situations, and have an updated living will with them.

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Saturday, October 18, 2014

What Is Probate Law and How Does It Affect You Today?

Have you made your will official yet? It is not pleasant to talk about, but death will inevitably take us all at some point in our lives. Having an officially recognized will ensures that your estate goes to the people that you want it to when you pass away. The simplest definition of probate is 'the official proving of a will'. The laws of probate can be overwhelming at times, especially when emotions are still raw. It does serve its purpose however as not having a will (in-estate) makes the procedures a lot trickier and the results which can take months may not be what stakeholders deem right.

When a will is filed with the courts, the process for probate varies from country to country, even city to city. However the basic process is someone close to the deceased approaches the courts to act as 'executor', once the executor is established the process starts by collecting all assets and getting a value for the total. Once debts have been paid, the remaining assets can be distributed as per the will before the probate process is formally closed.

The Executioner

The executioner is usually the closest person to the deceased (wife, daughter, father etc.) or a close friend.

Probate affects you today in two ways. As someone who files a will and as a person nominated to be the executioner of a will.

Writing Your Will

Writing a will may seem like a death wish, it is something no one wants to ever think about however there is an incentive. You likely have worked hard for what you have acquired in life and would like your estate to be distributed as you see fit according to your values and wishes. It is also to protect your family, pre nuptial agreements may appear to only be agreed to when a high profile celebrity gets married, or someone wealthy but they are doing it for the same reasons as a will. The subject of money makes people act in irrational ways to protect themselves. Family members may lay claim that they should get everything, while others believe it should be theirs. It is not a nice situation for all involved. By writing your will now, you ensure that these disagreements can be solved by simply reading your official legal will.

As The Executioner

As the writer of the will, you will normally want to tell the person who you are leaving in charge of your estate should tragedy strike. It isn't the easiest conversation to begin, but knowing you have someone you trust can put your mind at ease. When someone brings up the subject with you, there is no set way to react. Simply listening to their requests is best, do not try and influence them either way. If you are unsure of anything though, do ask. Documenting everything possible is the safest option as emotions may get in the way of what was truly requested. In a perfect world there will be many, many years to you put everything in place exactly the way you wish. Make it a common practice to revisit the will every couple of years, to verify that it fits how you feel at that time.

Probate is something most people will deal with from both sides as the executioner and the writer of the will in their lifetime. Having a will ready so that the probate law process can be handled appropriately by all parties is law that should be taken seriously.
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Friday, October 17, 2014

Do Not Resuscitate (DNR) vs. Living Will

Do Not Resuscitate (DNR) order covers two types of emergencies: when your heart stops beat or you stop breathing. Living wills covers almost all types of life-prolonging treatments and procedures.

Thursday, October 16, 2014

Costs of Incorporating or Forming an LLC

The decision to form an LLC or incorporate can help you protect your personal assets from debts and obligations of your business. Unfortunately, many small business owners avoid taking this step because they assume it is too expensive. For a few hundred dollars, these small business owners could form an LLC and gain valuable protection that could one day protect them in case of lawsuit.

Incorporating or forming a limited liability company is not necessarily expensive. There are many entities to choose from, as well as states, each with their own costs. You can also choose to work with an attorney to incorporate your business, which is typically the most costly option. If you want to save money, you can do your own incorporation, but this can be tricky because even simple paperwork mistakes can cost you more later. For many small business owners, the best option is using a corporate service company, which is an affordable option to make sure your paperwork is correct and filed promptly with the state.

The following are expected costs if you are ready to incorporate.

Filing Fees

A filing fee is necessary to create an LLC or corporation. The exact fee will depend on the state in which you incorporate, but it usually ranges between $50 and $350. The cheapest option is forming a Delaware LLC, as the state has the lowest filing fee in the United States. Just remember that cost is not your only consideration, and Delaware incorporation may not be in your best interest.

Publication Fees

If you will incorporate in Pennsylvania, Arizona, Georgia or Nebraska, you will need to pay a publication fee of $150 to $300.

Annual Report Fees

This fee usually ranges from $25 to $200 and depends on your state of incorporation.

Franchise Taxes

This fee will be ongoing and paid every year. Most small businesses pay between $800 and $1,000, and there is usually a minimum and maximum amount of taxes you will pay depending on the entity type you choose and the number of shares you issue. For example, the franchise tax in Delaware is a minimum of $350 but may be as high as $180,000 for large corporations. Delaware has the lowest franchise taxes in the country.

Other Costs

You should also take into account other fees that depend on the type of business you operate. For example, you may incur costs to obtain necessary business licenses or set up a business bank account.

If you are interested in incorporating or forming an LLC with as little cost as possible, start by considering the state in which you will incorporate. You do not need to operate in the state you choose, but it may be more affordable to choose your home state if it is the only state in which you operate. If you are thinking about another state, look at their tax rate and compare it to your own.

It can also help to go over your options with a corporate services company or attorney to choose the right business structure. This decision should be made not only considering incorporation costs but also tax advantages, ongoing maintenance, formalities and ownership structure.

Christine writes for USA Corporate Services, Inc, a corporate services company that helps small business owners take the next step to incorporate. Learn more here.
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Wednesday, October 15, 2014

Advance Directives And End Of Life Expenses

Few if anyone would disagree with the ethical premise that a society should do everything possible to make sick people well. But this ethos seems to have gotten confused with something entirely different: the practice of keeping dying people alive as long as possible without concern for their discomfort, loss of dignity, and financial ruin. When you look at the statistics surrounding the issue of end-of-life expenditures they are truly incredible. In 2008 Medicare alone paid out $50 billion to physicians and medical centers to cover costs associated with the last two months of the lives of dying individuals. To put this into perspective, this was more than the annual budget that was allotted to the Department of Education at that time.

It is estimated that between 18-20% of people who pass away each year do so in the intensive care units of hospitals, and the cost for each day in ICU can reach as much as $10,000. This is in spite of the fact that most people polled do not want to be kept alive through aggressive and intrusive medical procedures when there is no hope for recovery. 75% of American die in hospitals or nursing homes, and in 2010 the average cost for a year in a private room in a nursing home was around $83,000. More people are living longer these days as we all know, these costs are rising all the time, and we are already faced with a federal budget deficit that exceeds $1 trillion.

How you feel about being kept alive through feeding tubes and life support systems at the end of your life is a personal decision. You can state your wishes concerning the types of medical procedures you approve and disapprove of through the execution of a living will, and you can add a health care proxy to name someone to make decisions for you in the event of your incapacitation. It may be a good idea to come to terms with the line that exists between medical issues and end-of-life issues and decide how you would like to proceed from a fully informed and personally empowered perspective.

Alan L. Augulis is a leading provider of expert estate planning guidance in Warren, NJ. For more information on advance directives and other estate planning services, visit our website.
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