To keep assets from disappearing or being claimed by a creditor, your estate plan should…
Vlad Portnoy is an attorney with a concentration in Trusts & Estates, including asset protection; business succession and planning; and Probate and Administration of Estates. Vlad also deals with Elder Law, including Medicaid and Disability planning; Guardianships for persons alleged mentally incapacitated; and Special Needs Planning for disabled individuals. Vlad is licensed to practice in New York, New Jersey and the United States District Court for the District of New Jersey. Formerly a corporate in-house attorney, Mr. Portnoy switched gears in 2009 to concentrate on Estate Planning and Elder Law.
What is your background and what inspired you to enter Estate Planning?
I really did want to be a lawyer from the age of eight. I have been working in the legal industry for over 20 years, in every possible position: file clerk, paralegal, law clerk, General Counsel of a corporation, and now a law firm partner. Originally, I only wanted to be a corporate attorney. However, over time, I realized that my talents and experience would be better utilized in elder law and estate planning. Elder Law is fascinating as you work with many different people and their families; you really learn something new every day. It is relevant to everyone and becomes increasingly important over time.
Which Trusts & Estates organizations do you belong to?
I am a former Secretary of the New York City Bar Association’s Committee on the Legal Problems of the Aging (Elder Law). I am also a current member of Elder Law and Trusts & Estates committees in several Bar Associations in New York and New Jersey.
What services and benefits can your Clients enjoy?
My Clients receive a thorough explanation of mechanisms behind any proposed legal work. I also keep them informed as to progress, every step of the way. As their attorney, I am never out of reach. My office tries to answer all calls and return any we missed within 24 hours. It’s important to me that Clients should never feel lost or abandoned.
About 65-75% of our work is dedicated to probate, trusts and estate planning law. The rest is Medicaid Planning and Guardianships.
Being fluent in English and Russian is quite rare (and comes in handy more than you’d think). Being bilingual comes in handy when we handle international matters for Clients all over the world.
I am also happy to present on estate planning and asset protection for professionals or anyone interested in a particular subject. Whether I am speaking to a group of financial professionals about addressing the specific needs of their high-net-worth clients, or parents with special needs children, or aging adults with potential need for Medicaid, it is never too early to start a conversation. The planning we do impacts not only the current Clients but generations to come.
In short, we go the extra mile. A Client should expect honesty, integrity, and fast service.
What questions should potential Clients ask?
“What do you think I should do?” The Client should be as candid as possible. Estate planning is all about the Client, their family and their relationships. But an estate-planning attorney should also take into account the Client’s hopes, dreams, aspirations and goals. Estate planning is a marathon, not a sprint. As families grow and change, older paradigms make way to the new ones, relationships break up and new ones form. Therefore, the Client must think ahead, address major life changes and check them against their current estate plan if they already have something in place. The plan that was perfect ten years ago might need a tweak or even a complete overhaul!
Other questions for the Client to ask are: Would I be disinheriting anyone? Is someone going to contest the Will? Do I or any of my Estate’s beneficiaries receive public benefits? Are there persons with special needs in my life that would be affected upon my death? Do I want to plan for my beloved pets? Do I own property in another state or country? Who are my beneficiaries, and who are their successors, (should the original beneficiaries predecease me)? Should I leave anything to charity? The questions really depend deeply on the Client’s personal situation that needs to be explored.
What is your estate planning process?
I usually meet with Clients at my office; and if they are elderly or disabled, I can visit them.
I take a “snapshot” of the Clients’ financial and health situation as well as some personal data, like family size and marital relationship status among many others. Then I explain the legal process to the Clients and make recommendations for various courses of action they may choose from. Legal documents are then drafted and given to the Client for review.
It is very important that Clients understand the process and the basic legal concepts before they sign anything. You do not need to be an attorney to read the estate documents and comprehend the basic legal principles behind each provision, if those were properly explained during the consultation.
What are the essential clauses in a will?
The Clients should always pay close attention to whom they appoint as Executor. This is an expression of immense trust but choosing the wrong person may present a liability to the Estate or executors themselves. As an estate planner I am always concerned with the executors’ honest and professional performance of their entrusted duties. But as an Elder Law attorney I am also aware that if an executor is a recipient of public benefits (such as Medicaid or SSI) or is an outright beneficiary under the will, this may cost them their benefits. It is crucial to understand all the ramifications when planning the estate.
If a beneficiary is a minor, a pet, has special needs or is suffering from substance abuse, these issues must be fully addressed. The solutions may include Special Needs Trusts and appointing a guardian as the case may be.
Any advice for Clients for choosing executors, trustees, guardians, and agents for medical and financial Power of Attorney?
When appointing any of these agents (fiduciaries), you should always ensure that the person you are choosing is both trustworthy and capable of carrying out the duties required of them. Any shortcomings may have negative consequences for the estate and could even cause civil or criminal liability to the agent, so choose wisely.
What are the different types of assets that can be left to beneficiaries?
There are personal items, cash and real estate. Personal items may be of monetary or sentimental value, or both.
A person may also have retirement accounts or life insurance policies that may or may not become a part of the estate, depending on whether all the proper designations were timely made. Those who own retirement accounts should always have policy beneficiaries in place. You do not want your IRA to become part of your estate.
Can New York State tax regulations have an impact when winding up an estate?
Yes, and this is a vital consideration for larger estates. It’s crucial you give your lawyer a complete picture of your assets, so calculations can show if there will be potential tax consequences.
What are the ramifications if a person becomes incapacitated and never formally designated an agent with a valid power of attorney?
Their loved ones or those genuinely concerned with their health and well-being would have to petition the courts to obtain a guardianship over the incapacitated person. The process is complex, arduous and often contested. Again, the option is there if you need it, but timely planning is always the better option.
The documents are drawn up, how often should they be reviewed?
Clients should review their documents at least once a year. Usually, my Clients are well-informed during our initial sessions and can do the routine check-up without assistance. For more complex questions they can always reach out to me. It also depends on the age and family situation; if the Clients are young parents, they may not need to review their documents as often. However, as they get older, the documents should probably be looked at more closely due to growing health concern, change in family dynamic, or potential eligibility for Medicaid, for example.
Do you communicate with a Client’s other advisers such as their CPA, or financial planner?
Always. Every time a Client is working on an estate or financial plan, they should have a CPA, a financial planner and an estate planning attorney communicating so that the Client does not end up with contradictions or conflicts. In the end, it’s all about teamwork.