WHY USE AN ELDER-LAW ATTORNEY?

by Mark A. Krohn, Partner
Jacobowitz & Gubits, LLP

Why Use an Elder-Law Attorney? by Mark A. Krohn, Esq. Jacobowitz & Gubits, LLP A client recently asked why he needed to hire an Elder-Law Attorney verses an estate lawyer to prepare a will, health care proxy, and a living will for him and his wife. Elder law attorneys guide clients through the legal complexities associated with long-term health care, guardianships, and disability planning, subjects not usually known or often times considered by the estate planner. For example, I was able to recently prevent problems with a client’s Health Care Proxy which would allow her agent to place her in a nursing home if need be. Elder-law attorneys place special emphasis on preparing for illness or incapacity. Who generally hires an elder-law attorney? Elder-law attorneys are often times retained by either the senior adult or by someone acting on his or her behalf. In any event, the elder-law attorney holds the senior’s interests paramount and seeks to satisfy the senior adult’s desires or needs first. In other-words, the senior adult is generally the attorney’s client, not the person assisting such person. For example, Dick came in and explained to me that he wanted me to prepare a deed to his father’s house to avoid the necessity of probating his father’s estate. I asked Dick if I could speak with his father and, after some difficulty, was given his father’s telephone number. We called his father together whereupon he explained that he had no intention of transferring his home to anyone, including his son. Thus, preparing the deed would have just been a waste of time since it became quite clear the Dick’s father was not going to transfer his home. Matters turned out for the best, however, because we did make an appointment to see Dick’s father and met with him and the entire family separately. The purpose of meeting with the father separately from the rest of the family was due to our concern with “client confidences”, since the father was our client. Based upon our meeting, we were able to provide an elder-law plan for Dick’s father that he understood and was happy with. How do I find an elder-law attorney? Remember that this field of the law is fairly new. There are some attorneys that call themselves elder-law attorneys but have no or very little experience in this area of the law. If you are considering hiring an elder-law attorney you should ask the attorney how long he has been in practice. Next, ask what percentage of his practice is devoted to elder law. Finally, use your sense of experience to help you determine whether the attorney has the experience and knowledge necessary to assist you or your loved ones. Question:
My husband passed away recently. Do I need to go to court for probate proceedings?

Answer:
I frequently receive phone call asking this very same question and the answer is : “It depends”.

Let’s first look at the more basic question: “What is probate?”
Probate is the process of submitting an individual’s Last Will and Testament to the Surrogates Court and asking the judge, among other things, to appoint someone as Executor of the deceased person’s estate. The judge will make this appointment only after you have proved that the Will is valid by bringing in witnesses to the signing or submitting affidavits of the witnesses. Only when a Will is proved to be valid to the satisfaction of the judge, will the judge admit the Will to probate and appoint the Executor.

To complete the picture, in the event that someone dies without a will, assets will be distributed to his or her heirs according to law. The court proceeding required in such cases is call an “estate administration” and the one appointed to distribute the assets is call the “administrator”.

If the Court needs to appoint someone to distribute the assets, isn’t Probate or Administration always necessary?
The first question to ask is whether there is any other alternate means of distribution. When one spouse dies, most of the assets are owned jointly with the surviving spouse. Often this means that as soon as one spouse dies the other automatically owns the property one hundred percent. Consider the following:

The most prevalent example of this is a joint bank account. No transfer is necessary and, therefore, no court proceedings.
Almost all real property (your home, etc.) owned jointly by husband and wife passes automatically as well. In order for such property to fall into this category, look at the deed for the phrases “Tenants by the Entirety”, “Husband and Wife” or simply “His Wife” next to your names. Any of these will transfer property directly to the survivor with no new deed required.
Any asset that designates a beneficiary, such as life insurance or a retirement fund does not need court proceedings.
Motor vehicles can generally be transferred by obtaining the appropriate form from the Department of Motor Vehicles.

What is left? Look for any assets in the deceased spouse’s name alone. This most often comes up in the case of shares of stock especially those distributed by an employer. While recent legislation requires that a shareholder be allowed to designate a beneficiary, many have not taken advantage of this provision. Nonetheless, is often possible to transfer stock directly from a corporation without probate. However, these procedures usually are so time consuming that one may well be better off going to court instead.

Finally, bank accounts in the sole name of the decedent under a certain amount may be transferred to the heirs by the use of affidavits. Banks are usually reluctant to volunteer this information so you must be persistent when you ask them if this can be done in your case.

If there are still assets in your deceased spouse’s name which cannot be otherwise transferred, probate or administration proceedings are most likely necessary. While these proceedings may be costly and time consuming if the estate is large or contested, many probate or administration proceedings, especially in the hands of a skilled Estate Attorney, can, in fact, be relatively painless.