An individual's largest asset is usually their homes. In an attempt to keep these large assets in the family and to avoid probate, individuals are either gifting the homes away to children early by signing over the deed or setting up a living revocable or irrevocable trust. Unfortunately sometimes these instruments are not used properly, don't take in all that needs to be done in estate planning and could cause harms not initially apparent when initially create them.

Trusts are used to manage assets. They can be set up to accomplish any number of goals such as providing income for a child, grandchild or other family member or it can provide income for a favorite charity or distribute assets in an attempt to reduce tax consequences or security assets from those inevitable issues that come with aging.

If you are setting up a trust in order to protect your assets from creditors or other unforeseeable situations which may arise as you age you must look at both types of trust closely to determine which is best for your circumstance. There are two types of living trusts, revocable and irrevocable. The difference being that the revocable trust can be changed or modified, giving the creator the flexibility of continued control over the assets during his lifetime. The other type of trust is an irrevocable trust. Once an irrevocable trust is established it cannot be changed. The creator will have no access or control over the assets any further through their lifetime once it is placed in the irrevocable trust. Some individuals do not like particular aspect of irrevocable trusts. They want the protection of the trust however they do not want to give up all control of their assets. Depending on what needs to be done in the protection of the assets, an individual might have to give up all control over the property in order to get the protection necessary from creditors or lien holders.

It is important to understand prior to forming such an instrument, that general creditors may use the Uniform Fraudulent Transfer Act (UFTA) under G.L. c. 109A to void or rescind a transfer by a individual debtor for less than fair consideration, regardless of whether the transfer is to an individual or a trust. The Fraudulent Transfer Act can be used by an individual's creditor if they can show that: 1) the debtor had "actual intent" to "defraud either present or future creditors"; or 2) the debtor believed "that he will incur debts beyond his ability to pay as they mature"; or 3) even if there was no fraudulent intent, the debtor was "thereby rendered insolvent". What this act will do is render an individual's trust void and rendered charges against the individual for a fraudulent transfer. This "look back" period as it is called is a statute of four years. If for example an individual has placed a piece of property into a trust and then enters a nursing home the creditor or Medicaid will look back four years from the date of incurring the charges to see if any property was transferred. If such property was transferred and the intent is considered fraudulent then the trust is considered void and the nursing home will be able to attach the home for charges incurred.

Also prior to placing assets into a trust the individual must understand that in bankruptcy, debtors must report all transfers made within one year of signing the bankruptcy petition. In conjunction with the one year "look back" period in bankruptcy, creditors may also use the Fraudulent Transfer Act to reach assets that have been transferred without fair consideration within their four year "look back" period as well.

If after discussing all aspects of why you need an instrument for estate planning with your attorney understanding the difference in the instruments, what they can and can't do is the next step. While a revocable trust gives the individual the ability to continue to control their assets, this control makes it impossible for the trust to offer any protection to an individual from creditors seeking to collect on a debt. "The established policy of the Commonwealth long has been that a Settlor (person who creates the trust) cannot place property in the trust for his own benefit and keep it beyond the reach of his creditors". Following, after the settlor's death, creditors of a settlor also have access to any and all trust assets that the trustee could have distributed during his lifetime. The plain meaning is that a revocable trust offers no creditor protection to the creator of such a trust.

A revocable trust may also result in loss of homestead protection and right of survivorship. A homestead or homestead exemption means that your home is protected from creditors up to the limit of the exemption for as long as the house is your primary residence. A homestead prevents most creditors from taking the house away from you to satisfy a debt that you owe the creditor. It will also protect your home in the event that you have to file for bankruptcy. If the home is placed in a trust, the homestead does not work. The home is no longer a primary residence, it is placed in the trust name and is no longer in your name. The placing of the home in a trust also will break the right of survivorship relative to a spouse that survives you.

An irrevocable trust in turn will protect you from your creditors as long as the trust is created in such a way the individual has no control over the trust asset for which it was made. In making any type of long term estate plan it is the best policy to speak to an attorney regarding your assets, your long term planning, and how you would like to manage such assets during and after your lifetime. Due to the "look back" period this should be done sooner rather than later

By: Michael A. Goldstein
The foregoing article was drafted by The Law Office of Goldstein and Clegg, LLC. For additional articles, see their http://www.goldsteinandclegglaw.com/bankruptcy_blog.

Since 1993 it has been public policy in New York State to allow parents (or other relatives) of a disabled child to set up a trust for their inheritance which will not disqualify them from government benefits, such as Social Security and Medicaid. The reasoning behind these supplemental needs trusts is simple - prior to the protection now afforded by these trusts, parents would simply disinherit their disabled children rather than see them lose their benefits. Since the state wasn't getting the inheritance monies anyway, why not allow it to go to the disabled child for his or her extra needs, above and beyond what the state supplies, such as sundries, clothing, meals, vacations, over-the-counter medicines, upgraded medical procedures, reading material, recreation, improved housing, etc.

These trusts, however, offer traps for the unwary. Since payments to the child will generally reduce their SSI payments dollar for dollar, trustees of such trusts should be advised to make payments directly to the providers of goods and services. Preserving SSI benefits is crucial since eligibility for SSI determines eligibility for Medicaid. In other words, if SSI is lost the recipient also loses their Medicaid benefits. In addition, any benefits previously paid by Medicaid may be recovered. As such, one also has to be mindful of bequests from well-meaning grandparents.

Distributions from the trust to the beneficiary should be "in kind" rather than in cash. For example, the trust may own items such as furniture and allow the beneficiary child the use of them. In addition, the supplemental needs trust must be carefully drafted so that it only allows payments for any benefits over and above what the government provides, not only now but also in the future. The child may not control or have direct access to any portion of the trust.

A major issue for parents today is the increased life expectancy of their disabled child. With major advances in medical care, many disabled children, who would have in earlier days predeceased their parents, are now surviving them. In order to solve this problem, parents often make the planning error of leaving a disproportionate share of the estate to the disabled child. This can engender hard feelings in siblings who, although agreeable to such an arrangement initially, may find themselves in need of funds later on and resentful of the uneven distribution in favor of the disabled child. The surviving siblings are often the only support network available for the special needs child so that it is all the more important to keep peace and harmony in the family.

Often, an analysis with the estate planning attorney will reveal that the income from an equal division of the estate will, in fact, be sufficient to provide for the disabled child's needs. If such is not the case, "second-to-die" insurance may be purchased to provide for any additional funds needed. The policies are written over two lives, those of both parents. Since the insurance company only has to pay when the second parent dies (i.e., when the funds are needed) the premiums are significantly lower than on a single life policy.

Some parents, feeling the family is close enough, think that they can simply leave the inheritance to a brother or sister who will then take care of the disabled sibling. This offers no protection to the disabled child in the event the sibling runs into financial difficulties, has a divorce or predeceases the disabled child. The supplemental needs trust allows the sibling, as trustee, to manage the assets for the benefit of the disabled child while providing complete protection for the funds and the naming of back-up trustees to continue the trust in the event of the death or disability of the initial trustee. Remember, these trusts may have to last for many years.

With the complexity of modern trust administration, many parents are choosing both a personal and a professional trustee, so that the family member can provide the personal input while having the professional trustee handle the administrative items, such as monitoring investments and preparing tax returns.

It is also a good idea to review beneficiary designations on IRA's and 401(k)'s as well as on annuities and insurance policies so that the disabled child's supplemental needs trust is named as the beneficiary rather than the child themselves. Watch out for simple designations such as "my spouse first and my children second".

Another key issue is continuity of care for the child upon the surviving parent's death. Revocable living trusts are often used as the estate plan of choice since the trustee may use and distribute assets for the benefit of the disabled child immediately after the parent's death, unlike in the case of a will, which must first be probated, a court proceeding to determine its validity. These proceedings may tie up the estate assets for many months or even years in some cases.

Not to be overlooked in planning for the disabled child is the "Letter of Intent" or Personal Needs Notebook, where the parents should provide the following information to the trustees (1) the nature of the child's disability (2) emotional and financial care provided by the family (3) persons involved with the child (4) the child's capabilities and limitations (5) their likes and dislikes (6) their behavioral quirks and nuances (7) their daily routine, and (8) how they act with other people and in other places when the parents are not around.

One final word of caution. Where a disabled child is involved, it is of greater importance that funds be available when needed. As such, long-term care insurance for the parents should be arranged so that the money the family is depending on to support the disabled child is not lost for the parents' potential nursing home expenses.

By: Michael Ettinger, Esq.
Principal attorney Michael Ettinger has been a member of the New York State Bar since 1980. He is a law graduate of McGill University in Montreal, Canada and obtained his Master of Laws from the London School of Economics in 1978. Ettinger Law Firm, dedicated exclusively to estate planning and elder law, was formed in 1991. Mr. Ettinger is a founding member of both the American Academy of Estate Planning Attorneys and the American Association of Trust, Estate and Elder Law Attorneys. Ettinger Law Firm has prepared thousands of estate plans using trusts and Medicaid applications. Their staff of attorneys and experienced Medicaid professionals provide over fifty years of combined experience in estate planning and elder law.

Ettinger Law Firm offices are located throughout New York State in Albany, Fishkill, Nyack, White Plains and Staten Island. Please visit their website, http://www.trustlaw.com, for directions and more information about estate planning and elder law.

Vehicular manslaughter, sometimes referred to as vehicular homicide, is a crime in almost every state across America. The punishment for this crime varies from state to state, but in most jurisdictions it is taken very seriously. Generally defined, vehicular manslaughter revolves around a death that occurred because of driving a car in a negligent manner. In some cases, you could be charged with vehicular manslaughter in connection with another charge such as drunk driving, gross negligence, speeding, or reckless driving.

The circumstances surrounding the event is the determining factor on whether you will be charged with a misdemeanor or a felony, however most states consider vehicular manslaughter to be a felony. States such as Alaska, Montana, Arizona, and Oregon do not have vehicular manslaughter laws. But, these states treat a car or vehicle as a potentially deadly weapon. This makes it easier to get a conviction and have more severe penalties.

If you're charged with felony vehicular manslaughter you could be sentenced to jail time in a Federal or state prison. As part of your punishment, you may also be required to pay heavy fines, undergo mandatory rehabilitation, and be put on probation. Additionally, the felony conviction would appear on your permanent record. If convicted of misdemeanor vehicular manslaughter, you could be sentenced up to one year in a county jail and also be subject to fines, rehabilitation, and probation. As with the felony conviction, the misdemeanor offense appears on your permanent record.

If you have a prior criminal record, are on probation and/or parole, or have previously been convicted of vehicular manslaughter, the penalties could be a lot more severe. If you've been charged with vehicular manslaughter or vehicular homicide you should seek the advice of a qualified criminal defense attorney. A lawyer can evaluate the charges against you and help obtain the most favorable outcome in your case.

By: William I. Wright
If you are facing felony or misdemeanor charges charges, the advice of criminal defense attorneys is critical. An experienced criminal law lawyer can evaluate your case and help you determine the best way to proceed with legal action.

A personal injury attorney can handle many different types of cases where someone has been injured or even killed. Some of them work with several different kinds of injuries while others focus on a specific injury. To find a lawyer that best meets your needs and will be able to handle your case, look for a lawyer knowledgeable about your particular area of tort law. Here are just four types of legal experts you may need:

Product Liability Lawyer
Laws, rules, and regulations are set in place to ensure that all products are safe for the consumer or labeled in such a way that the customer is aware of a product's dangers. If a company fails to take the necessary steps to ensure this and someone gets hurt, a personal injury attorney concentrating on product liability will have the expertise to lead you in righting this wrong. This may include damages, but it may also involve corporate repercussions such as product recalls or fines.

Brain Injury Legal Expert
A legal expert in brain injuries is knowledgeable in the area of head trauma as well as its causes and results. These experts will better understand the needs of the victim as well as the circumstances surrounding the case. This type of lawyer likely has a team of experts he or she is familiar with to help a judge or jury understand the circumstances surrounding the injury so that you have the best representation possible.

Mesothelioma Lawyer
Regardless of how little asbestos you are exposed to or whether it was caused by accident or through negligence, mesothelioma cancer is devastating and often fatal. This disease can take between 15-40 years to appear. These types of cases can often be difficult to deal with. What is worse is that it was not banned until the late 1980s and these cases will continue to crop up until well after 2030. Depending on the circumstances of your exposure, it may also involve class action suits and will require a series of experts in order to prove your case.

Accident Attorney
If you are hurt in a commercial or personal auto accident, an accident attorney will be needed. He or she will be able to let you know what your options are and what you have in terms of rights. This type of personal injury attorney is used to working with insurance companies and other organizations you will be contacting. They understand how car and truck accidents work and will be able to help you through courts if you need to take things that far.

A focused legal expert will understand what kinds of professionals he or she will need to call in to get you the results you deserve. This may include financial compensation to offset the costs incurred by the injury, but it also may cause laws, regulations, and other changes that will prevent others from suffering the same fate. Even if your case doesn't go to court, a personal injury attorney will be able to tell you about your options and help you to decide which steps are best to take next.

By: Christine Harrell
Author is a freelance copywriter. For more information on a personal injury attorney in GA, visit http://www.MarkThomasLaw.com