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Fighting over Estate issues.

In our new world of multi-marriages, divorces and step-children, Will contests and objections to probate are becoming more and more common

There are ways to deal with these conflicts to resolve differences without going to court. The best advice is for parents to do estate planning, which includes preparing a Last Will and perhaps a Trust document. Preparing a personal letter(s) to heirs explaining one’s intention prior to death is an excellent idea but rarely followed.

A Will challenge can be based on three things:

  1. 1. The will is defective on its face; the will may be missing essential elements.
  2. 2. Incapacity, the deceased did not have testamentary capacity to make a will.
  3. 3. Undue influence.

A valid Will must be witnessed by two disinterested parties. A challenge of incapacity must be based on medical records and medical conditions at the time the Will was executed. Undue influence is difficult to prove unless a new will was created in favor of a non-family member when the decedent was ill or infirm. When a conflict arises between siblings, a cross petition and or an objection to Probate/Administration may be filed. Extensive discovery proceeding may uncover clues to the decedent’s testamentary intentions.

In many cases, a resolution may be reached in a court supervised settlement conference. Our law office has extensive experience reaching out of court settlements, resolutions of disputes between once “close” family members.

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Power of attorney, living wills & end of life

End-of-life issues can be extremely complex, and many people avoid making decisions about how such issues will be handled because it can be an uncomfortable and difficult subject to address. However, it is crucial that you do spend time thinking about how you want your final days to play out, both for your own personal comfort and for the well-being of your loved ones. At the very least, strongly consider making a living will and determining who you want to grant a durable power of attorney for healthcare decisions.

The Living Will

living will is a document that sets forth what to do, and what not to do, if you are incapacitated and unable to make those decisions. This could be because you are in a coma, suffered a debilitating injury, or because you have become seriously mentally incapacitated. Here are some of the most basic considerations to account for in your living will:

  • Life-Prolonging Medical Care: Your living will should state whether you want to receive life-prolonging treatments at the end of your life. Typical treatments include blood transfusions, respirators, dialysis, drug treatment and surgery.
  • Do Not Resuscitate (DNR) Directives: In conjunction with directives about whether you want to receive life-prolonging medical care, most living wills will state whether or not you want to be resuscitated (CPR) at the end of your life. It is advisable to let your doctor and local hospital know about your DNR decisions and, if you do not want paramedics to try to resuscitate you, to wear a Medic Alert bracelet, anklet or necklace with those instructions.
  • Life-Prolonging Food and Water: Often, if someone is comatose or seriously injured, they will only be able to survive through the external administration of food and water. When such treatment is stopped, the patient will die naturally of dehydration and medical professionals will typically apply medication to make such a passing comfortable. You should specify whether you want to receive food and water, under what conditions and timelines you would like to receive such treatment and when to stop it.
  • Pain Management: Even if you decide you want to let death occur naturally, without intervening care, it does not mean you have to die with pain. Now commonly called comfort care or palliative care, the goal of such care is to emphasize qualify of life and dignity by keeping the patient comfortable and free of pain until they pass. Specify in your living will if you want doctors to emphasize pain management at the end of your life.

Need a Living Will or Durable Power of Attorney? An Estate Planning Attorney Can Help

Imagine suffering from a massive stroke, resulting in the inability to move your body or even speak, and thus unable to convey your wishes to doctors or other caretakers. That is what living wills and powers of attorney are meant to remedy. But it’s important to get ahead of the curve while you’re healthy and lucid. Learn more about your health care and end-of-life legal options by speaking with an estate planning attorney near you today.

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Choosing a healthcare proxy

Choosing a healthcare proxy helps to ensure you receive the care you want at the end of life. Your healthcare proxy, or agent, should be someone you trust, a family member or close friend. Your agent makes medical decisions for you when you no longer can. You can ask your proxy to make all your healthcare decisions or only certain ones. Your proxy can also decide how your wishes apply as your condition changes. Appointing a proxy ensures that providers follow your wishes.

Everyone over age 18 should have a healthcare proxy. Situations that may require a proxy:

  • You are in a coma from an accident or illness.
  • You are terminally ill and not expected to recover.
  • You have Alzheimer’s or another form of dementia.
  • You are under general anesthesia, when something unexpected occurs.
  • You are in a persistent vegetative state.

Appointing the right person to be your healthcare proxy can be difficult. Here are some steps to guide you:

Clarify your values and beliefs.

Consider what’s important to you. What contributes to the quality of life you want? How do you want to spend your final years, weeks or days? What activities are essential to having a quality life? What role does your faith play in making these decisions?

Frame your medical wishes around these values and priorities. Determine which treatments you are willing to accept. Figure out which treatments you would never want. How much medical care are you willing to have to stay alive? What kind of medical risks are you willing to take? When would you want to shift from treatment to comfort care?

Have an honest conversation.

Talk to family members and friends about what you want. During those conversations, look for someone who is most likely to represent your wishes.

Once you choose a proxy, continue to share your wishes, thoughts and opinions with that person. It’s impossible to predict every scenario that may present itself. But explaining your views will give your agent the information to make decisions on your behalf.

Discuss your wishes with providers.

It’s important to share your wishes with your providers, particularly your primary care provider. This information will enable them to care for you in a manner that is consistent with your wishes. You should also let them know you have a healthcare proxy.

Once you have a healthcare proxy, complete the New York Health Care Proxy form. Instructions are available in several languages:

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Estate planning without politics, protecting your wealth

Changing legislation and tax laws can affect your estate planning but there are some estate  planning issues that remain the same regardless of those changes.

The first is making sue you update your health care documents and will(s). Make sure the people named in those documents are still the people you want named in those documents. Some things to think about are power of attorney, trustees, has your relationship changed with anyone name in your documents?

For example, if your power of attorney has moved across the country you might want to designate a new one closer to home.

Setting up new trusts

You can set up trusts for your kids and grandchildren. While exemptions have changed over the years, the gifting exemption has stayed relatively constant. By setting up these trusts you can avoid gifting taxes.

Sell off assets

You can sell of the family business, real estate and other assets and place the proceeds in a trust. A family business is along term investment so if you sell it off and place the process in a trust it will provide economic security and prevent it from any local state, estate taxes.


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Talk about dying

We’ve mentioned it before but many people delay estate planning because they don’t want to talk about death, their own specifically. But it has to be done. By not discussing it you can leave much uneeded stress for those you leave behind.

Getting your estate plans in order doesn’t have to be complicated. Here are some common questions:

  • If you wind up on life support, o you want to remain on it or have someone pull the plug?
  • Who do you want to carry out your last wishes. Who will be your executor?
  • How do you want your assets distributed?

Main documents

Power of Attorney for healthcare: Who will make decisions for yo if you can’t?

A living will; In some states this is called an advanced medical directive. This is for end-of-life decisions, like life support.


It is very common for people to forget to update their beneficiaries on various forms. This is most important if you’ve remarried. For example, chances are you don’t want to leave your 401(k) to your ex-spouse.

These are just a few of the things to remember when estate planning. Contact a credible estate professional who will be able to help you with the details and with anything we haven’t mentioned here.

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