New York resident Roman Blum died last year at the age of 97, leaving behind an estate worth approximately $40 million. To date, a Last Will and Testament has not been found. When no Will is produced, an estate is probated according to the state’s intestate succession laws, meaning that the legal heirs of the decedent inherit the estate assets. The problem is that no heirs have been found either.

Although Blum’s life prior to moving to America is somewhat of a mystery, it appears as though he was born in Poland and was a holocaust survivor. Blum was married but divorced his wife after 50 years and the couple had no children. The public administrator who was appointed to probate the estate has launched an international search for heirs, even hiring a professional genealogist to help. To date, no heirs have been uncovered.

If no heirs are found within three years, what remains of Blum’s estate will be transferred to the State of New York’s unclaimed property fund. The cause of Blum’s failure to execute a Will remains a mystery as well. Although he was a successful developer and used an attorney on a regular basis, friends surmise that he may have not created a Will for superstitious reasons. Whatever the reason, the story should remind all of us why it is so important to create an estate plan.

Individual state laws govern wills and trusts. For that reason, the state in which a decedent is considered a resident at the time of death will determine any legal issues relating to the estate of the decedent. Most states have a law that allows a surviving spouse to “take against the Will”. What this means is that a spouse may elect to take a specific dollar amount or percent of the estate instead of accepting whatever was left to him or her in the Will. If, for example, your spouse left you $10,000 under the terms of his or her Will, but the laws in the state where you live allow you to take $25,000 as a surviving spouse then you would be better off taking against the Will.

Whether you are a surviving spouse or are someone who is in the process of drafting a Will, you should understand your state’s laws with regard to a spouse’s right to take against a Will. As a testator, you need to understand what rights your surviving spouse will have with regard to your estate. On the other hand, if you are the surviving spouse then you may be entitled to more estate assets than the Will left you.

A Will contest can be filed for a number of reasons, but the bottom line is that they must claim that the Will itself is invalid. If the probate court is satisfied that the challenge is not frivolous, it will be litigated. The emotional cost to the family members and loved ones who must go through this process is immeasurable. The financial cost, however, can be measured.

While each Will challenge is unique, they all incur costs. The executor or personal representative of the estate must defend the Will. This requires an attorney. The attorney must prepare a response to the challenge and file that with the court. Discovery will then take place which will include reviewing and analyzing numerous documents, medical records and evidence. Depositions of people involved with case may be scheduled. Hearings will be held along the way. All of these steps along the way incur legal fees that are charged to your estate assets. By the time all is said and done, the cost of litigating a Will challenge will almost always far exceed what it would have cost to simply consult with an estate planning attorney in the first place.

The Veteran’s A&A program has actually been around for years; however, many veterans do not know that it exists. Often considered the third tier of the veteran pension program, the Veteran A&A program can help veterans and spouses who need daily assistance in the home with the expenses incurred in paying for that assistance.

The Veteran’s A&A program is not dependent on the veteran having a service related injury. To qualify, the veteran must be a war-time veteran with at least 90 days of active duty, at least one day of which must have been during an active time of war. In addition, the War-Time Veteran or surviving spouse “must need the assistance of another person to perform daily tasks, such as eating, dressing, undressing, taking care of the needs of nature, etc. Being blind or in a nursing home for mental or physical incapacity, or residing in an assisted living facility also qualifies.”  In addition, the applicant must have less than $80,000 in assets excluding a home and vehicles.

If approved, a veteran can receive up to $1,704 per month in assistance. A surviving spouse could receive up to $1,094 and a couple may be eligible for up to $2,020. To apply, complete Form 21-534 for a veteran or Form 21-536 for a surviving spouse. If you encounter problems in the application process, consult with your estate planning attorney.

An investment policy statement, or IPS, is your opportunity to put down in writing what you goals and wishes are for money or assets that are being managed by someone else. For example, if you create a trust as part of your estate plan the trust will be administered by a trustee. Although the trustee is ultimately responsible for the trust assets, your IPS can provide guidance to the trustee.

Your IPS may include general instructions such as your desire to make safe investments or risky investments as well as more specific instructions such as a goal of growing the fund to a specific dollar amount by the time a beneficiary reaches college age.

Providing a roadmap through an IPS can be particularly beneficial when your trustee is an individual instead of a professional corporation. For example, if you appoint your parent, sibling or child as the trustee, he or she may not have extensive experience investing trust fund assets. By providing an IPS your trustee has a starting point and some general instructions to go by. Be sure to keep a copy of your IPS with all of your other estate planning documents so that it can be put to use when the time comes.

• Your estate planning attorney should be consulted for a broad picture that determines where you want to be in 10, 20, 50 years and what you want to be able to leave behind for your family and loved ones when you die.
• Your financial planner should be consulted when deciding how best to invest the funds you have today in order to realize those goals you discussed with your estate planning attorney.
• Your estate planning attorney understands the law.
• Your financial planner understands investments.
• Your financial planner should be able to provide you with written projections for what your assets will look like in the years to come assuming you follow the plan you have developed with him or her.
• The plans that your financial planner provides for you can then be used by your estate planning attorney to develop a comprehensive estate plan that accounts for those assets both during your retirement and after your death.

State laws define estate planning terms and concepts; however, there are usually similarities among the states. As a general rule, “testamentary capacity” refers to an individual’s mental capacity to sign a document such as a Last Will and Testament. Despite how many books and movies portray the concept, testamentary capacity usually has a relatively low standard.

In most cases, the capacity required to execute a Wills is presumed, meaning that anyone challenging the Will must prove that the testator lacked the legal capacity required. In addition, it is typically only necessary that the testator had the capacity at the precise moment that the Will was signed. If the testator doesn’t remember signing the document the following say, he or she way still have had the capacity at the time of signing under the eyes of the law.

While full blown dementia or Alzheimer’s may be enough to find that the testator lacked the requisite capacity,  early stage symptoms of either may not. For this reason, if you are considering contesting a Will based on the lack of testamentary capacity, be sure to consult with an experienced estate planning attorney first.

1. Narrow down your search using the Medicare online search tool. Along with locating nearby nursing homes, you can also use the tool to view ratings for each home in your area.
2. Check with the state elderly ombudsman program or department of elder affairs. Specifically check to see what types of complaints have been filed against nursing homes in the area where you need care.
3. Visit each potential nursing home at least five or six times. Be sure to show up without an appointment on some of your visits to see how the place runs when they are not expecting a potential client.
4. Talk to residents and/or loved ones of current and former residents. There is nothing better than a first-hand account of how a nursing home runs.
5. Schedule an official appointment with the administrator. Come prepared with specific questions such as what is the staff to patient ratio, what type of professionals are on staff, and does the home employ registered nurses or simply certified nursing aids.

Because Alzheimer’s caused nerve cells in the brain to degenerate and die, a patient may appear physically healthy for years after being diagnosed; however, his or her mental faculties are slowly degenerating, eventually leading to the inability to make legal decisions. Long before your spouse reaches this point you should be prepared by creating an incapacity plan if one is not already in place.

At some point, you will need to take over legal and financial decision making for your spouse. Simply being married does not give you unfettered authority to do this. For this reason, your estate plan must include the appropriate incapacity planning documents now before your spouse reaches a point at which he or she is legally unable to execute them.

In an administration proceeding, a relative of the decedent is often appointed to oversee the proceedings; however, aunts, uncles and cousins are not allowed to be the administrator. When a more closely related relative is not available, the Public Administrator is appointed to fill the position. This means that you will not be able to be involved on a day to day basis, yet may still have a desire to know what is happening.

Another important function of an administration is to determine the heirs. Before the court will declare an aunt, uncle or cousin to be the only existing heir, it wants to be certain that there are no heirs alive who are more closely related to the decedent. This can involve a fairly extensive investigation by the court in some cases. If you would like to know yourself whether any other heirs exist, talk to your estate planning attorney about doing your own investigation.