Definitions

Activities of Daily Living - Activities of daily living (ADLs) is a term used in medicine and nursing, especially in the care of the elderly. They are evaluated in order to determine a person's level of function. ADLs are the things normally done in day to day living, including self-care activities, that are ordinarily done without assistance.

The basic activities of daily living consist of these self-care tasks:

• • Bathing/Personal hygiene

  • Dressing and undressing

  • Eating

  • Transferring from bed to chair, and back

  • Toileting

• Moving around (as opposed to being bedridden)

Administration - As used in the expression "Administration Proceeding", it is the name of the Court proceeding done when someone dies without a Will. The person appointed by the Court to be in charge of the Estate is called the "Administrator", who is issued "Letters of Administration".

As used in the expression "Estate Administration" is the name for the combination of activities that are commonly necessary in handling an Estate, including: gathering the deceased's assets, paying the taxes and debts, distributing to the heirs (which, in New York, are called "distributees"), etc.

Administrator - An "Administrator" is the person appointed by the Court to be in charge of an Estate where there is no Will. The Court proceeding is called an "Administration Proceeding" and the Administrator is issued "Letters of Administration". By contrast, an "Executor" is the person appointed where there is a Will, who is instead issued "Letters Testamentary". (One exception is that a person who applies for Letters where there is a Will but that person has not been named as Executor in the Will itself is granted Letters of Administration C.T.A, and is appointed the Administrator C.T.A. of the Estate -- C.T.A. is from the Latin for "with Will attached")

Advance Directives - Generally speaking, these are documents that explain your wishes concerning what should be done in the event of your absence, death or disability, and giving authority to someone you choose to act as your agent to carry out your wishes. Typically, Advance Directives in New York are considered to include a "Power of Attorney", a "Living Will", and a "Health Care Proxy"; often, a Last Will and Testament (commonly called a Will) is also included as an Advance Directive. For articles by Jim D. Sarlis, Esq. on Advance Directives and related topics, see Advance Directives: Who Will Handle Your Affairs If You Cannot? Also, New Power of Attorney Law for an update eff. Sept. 1, 2009; New York changes Power of Attorney Law ... Again! for an update eff. Sept. 2010; and MOLST: Medical Orders for Life-Sustaining Treatment, which became NYS law July 9, 2008.

Advocacy - Argument in favor of a particular position. The person doing the arguing is called an Advocate.

Beneficiary - A beneficiary is a person who receives something under a Will. By contrast, a "distributee" (also know as an "heir") is a person who would be entitled to receive a portion of an Estate if there were no Will. Under the general category of beneficiary, if you are the beneficiary of a bequest of personal property, you are a "legatee" and what you are to receive is called the "legacy"; if you are the beneficiary of a bequest of real property, you a "devisee" and what you are to receive is called the "devise". (A beneficiary can also be someone who is named in a Trust or in an insurance policy as the person who is to receive under that written document as well.)

Bequest - A gift of property under a Will (see also Legacy and Devise).

Consideration - Anything of value given in exchange for something else. Well known examples of consideration include money and property, but consideration can also be in the form of doing something valuable, or refraining from doing something your ordinarily would have the right to do.

Constructive Trust - A relationship where, even in the absence of a written trust document, a trust is considered to exist because of the circumstances and the actions of the parties (for an article on Constructive Trusts, click here).

Deed - A written legal document that transfers a right, title, or interest in real property ("real estate"). The person who gives the interest is generally called the "grantor", and the person who receives the interest is generally called the "grantee". There are different kinds of deeds, including a Warranty Deed, a Bargain and Sale Deed, and a Quitclaim Deed.

Where property is owned by more than one person at a time, the property law concept is called a "concurrent estate" or "co-tenancy". New York recognizes the following forms of co-ownership: "tenants in common", "joint tenants" (sometimes called "joint tenants with right of survivorship"), and "tenants by the entirety" (sometimes called "tenants by the entireties"). [Note: a few jurisdictions other than New York treat the phrase joint tenancy as synonymous with a tenancy in common].

The type of ownership determines the rights and responsibilities of the co-owners of the property, with each requiring a different set of conditions in order to exist.

Co-owners share a number of rights by default:

1. Each owner has an unrestricted right of access to the property. When one co-owner wrongfully excludes another from using the shared property, the excluded co-owner can bring a cause of action for ouster. As a remedy, the court may grant the wronged co-owner the fair rental value of the property for the time that they were ousted.

2. Each owner has a right to an accounting of profits and expenses made from the property. If the property generates any income (e.g. rent, farming, etc.) each owner is entitled to a pro rata share of that income.

3. Each owner has a right of contribution for the costs of owning the property. Co-owners can be forced to contribute to the payment of expenses such as property taxes, mortgages for the entire property.

See also "Tenants in Common", "Joint Tenants", and Tenants by the Entirety", below

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Devise - A bequest of real property in a Will (as opposed to a Legacy, which is a bequest of personal property). The person who receives the Devise is called a Devisee.

Distributee - A person who would be entitled to receive a portion of an Estate if there were no Will. In New York, such a person is called a "distributee". In most other states, such a person is called an "heir" -- that is why most people even in New York call such a person an "heir". (See also Intestacy or Intestate, below).

Elder Law - Elder Law encompasses the wide range of issues and concerns that affect the older client, as well as clients and their families as they age. Using a holistic approach, the Elder Law practitioner handles general estate planning issues and counsels clients about planning for incapacity with alternative decision making documents. The attorney would also assist the client in planning for possible long-term care needs, including nursing home care. Locating the appropriate type of care, coordinating private and public resources to finance the cost of care, and working to ensure the client's right to quality care are all part of the Elder Law practice.

The fields encompassed by Elder Law include:

• Preservation and/or transfer of assets for estate planning purposes, as well as for Medicaid eligibility purposes (including to preserve assets when a spouse, parent or other family member needs nursing home or other long term care);

• Medicaid planning and other issues;

• Medicare claims and appeals;

• Social security and disability claims and appeals;

• Supplemental and long term health insurance issues;

• Disability planning, including use of durable powers of attorney, living trusts, living wills, and other tools for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity;

• Conservatorships and guardianships;

• Estate planning, including planning for the management of one's estate during life and its disposition on death through the use of trusts, wills and other planning documents;

• Probate;

• Administration and management of trusts and estates;

• Long-term care placements in nursing homes, Assisted Living Facilities, and other settings;

• Nursing home issues including questions of patients' rights and nursing home quality;

• Elder abuse and fraud cases;

• Housing issues, including reverse mortgages, discrimination, and home equity issues;

• Age discrimination in employment;

• Retirement, including public and private retirement benefits, survivor benefits and pension benefits;

• Health law;

• Mental health law;

Most elder law attorneys do not specialize in every one of these areas.

Estate - Generally speaking, for our purposes, an Estate is all of the property that was owned by someone who has died, and may also include whatever interests, rights or powers that person had in property.

Estate Tax - The government imposes a tax on the Estate of a person who has died. There is a Federal Estate Tax, and also a New York State Estate Tax. (NOTE: In 2010, there is no Estate Tax and, so far, none has been enacted that is retroactive or otherwise. This has created some uncertainty and unforseen outcomes [see Blog article on 2010 Estate tax by clicking here]. The Estate Tax is scheduled to resume on January 1, 2011.) An Estate Tax is imposed on the Estate based on the value of its assets; by contrast, an Inheritance Tax (which is what some states other than New York have) is imposed on the beneficiary of the assets based on the value of the property inherited by the individual. For a video on Estate Tax, click here.

Executor - An "Executor" is the person appointed by a Court to be in charge of an Estate in situations where the deceased died leaving a Last Will and Testament ("Will"). The person is, in fact, named or "nominated" in the Will as Executor. (By contrast, an "Administrator" is the person appointed by a Court in situations where there is no Will, who is instead issued "Letters of Administration".)

Fiduciary - Fiduciary is the generic term for someone who is responsible for someone else. Examples of fiduciaries are: an Executor, an Administrator, a Trustee, and a Guardian. A fiduciary is held to high and strict standards, also known as "fiduciary duties". For example, the fiduciary has a duty of loyalty to act in good faith for the best interests of his ward. A duty not to act in his own best interest. A duty not to engage in self-dealing.

Gift Tax - There is a federal tax and a New York tax imposed on gifts above a certain amount. A gift is anything given to another in exchange for less than its fair market value. For an article by Jim D. Sarlis, Esq. on Gift Tax, click here; for a video on Gift Tax, click here.

Guardian - A person who is responsible for the person and/or property of another because his ward is a minor or is incapacitated. (See Guardianship) for more information about Guardianship:

Guardianship - Guardianship is a legal procedure whereby someone is appointed to make personal and/or financial decisions for another person. For an article on Guardianship in New York, click here; for a video on Brooklyn's Guardianship Project, click here.

Health Care Proxy - The "Health Care Proxy" is one of the "Advance Directives". It is a document whereby You can designate a particular person to be able to make health care decisions for you if and when you cannot make such decisions for yourself.

Heir - Pronounced like the word "air". A person's "heirs" are what are also called "next of kin". In New York, heirs are called "distributees". A person's heirs are the people who would receive their estate if there is no Will. They take under the laws of "heirship" or "intestacy". For example, if a person dies survived by a spouse and children, the spouse and children are his or her heirs.

Inter Vivos - Latin for during your lifetime, or while you are alive.

Inter Vivos Trust - A trust that is effective while you are alive. Also commonly called a Living Trust or Lifetime Trust. It is created by a written trust document (certain circumstances can create a trust relationship even without a written document, however; to view an article on Constructive Trusts, click here).

Intestacy or Intestate - This is the situation where a person dies without a Will.

Joint Tenants - A joint tenancy or joint tenancy with right of survivorship (JTWROS) is a type of co-ownership (or "concurrent estate") in which co-owners have a right of survivorship, meaning that if one owner dies, the deceased owner's interest in the property will pass to the surviving owner or owners by operation of law. The deceased owner's interest in the property does not pass by inheritance to the deceased owner's beneficiaries by Will or, if there is no will, heirs, by intestate succession. Under this type of ownership, the last owner living owns all the property, and on his or her death the property will form part of their estate. Unlike a tenancy in common, where co-owners may have unequal interests in a property, joint co-owners have an equal share in the property.

It is important to note, however, that creditors' claims against the deceased owner's estate may, under certain circumstances, be satisfied by the portion of ownership previously owned by the deceased, but now owned by the survivor or survivors. In other words, the deceased's liabilities can sometimes remain attached to the property.

Joint tenancy is a form of ownership common between family members and in any other situation where parties want ownership to pass immediately and automatically to the survivor. For bank and brokerage accounts held in this fashion, the acronym JTWROS is commonly used in the account name as evidence of the owners' intent.

To create a joint tenancy, clear language indicating that intent must be used: e.g. "to X and Y as joint tenants with right of survivorship". Absent such clear language, a tenancy in common would be formed, by default.

To create a joint tenancy, the co-owners must share "four unities":

• Time - the co-owners must acquire the property at the same time.

• Title - the co-owners must have the same title to the property. If a condition applies to one owner and not another, there is no unity of title.

• Interest - each co-owner owns an equal share of the property; for example, if three co-owners are on the deed, then each co-owner owns a one-third interest in the property regardless of the amount each co-owner contributed to the purchase price

• Possession - the co-owners must have an equal right to possess the whole property

If any of these elements is missing, the joint tenancy is ineffective, and the joint tenancy will be treated as a tenancy in common in equal shares. See also the explanation of co-ownership under the definition of "Deed", above.

Last Will and Testament - Commonly called a "Will", it is a document in which the person making the Will (called the "Testator" [a female is still sometimes called a "Testatrix"]) states his or her wishes regarding how property is to pass after his or her death, funeral and burial instructions, who is to care for his or her minor children, how tax issues are to be treated, and who is to carry out the wishes (the Executor). A Will takes effect upon death, after probate.

(Interesting historical note: In the strictest sense, a "will" was historically limited to real property while "testament" applied only to dispositions of personal property -- thus the popular title of the document as "Last Will and Testament" -- though this distinction is virtually never observed today.)

For an article entitled Wills 101: The Basics - Part 1, click here. For an article entitled wills 102: The Basics - Part 2, click here. For an article entitled What a Will Won't Do (and What it Will), click here.

Legacy - A bequest of personal property in a Will (as opposed to a Devise, which is a bequest of real property). The person who receives the Legacy is called a Legatee.

Letters of Administration - These are issued by the Court in an Administration Proceeding to appoint the person -- called the Administrator -- who is given authority to handle the Estate of a person who died without a Will. They are customarily in the form of a certificate with a raised seal.

Letters Testamentary - These are issued by the Court in a Probate Proceeding to appoint the person -- called the Executor -- who is given authority to handle the Estate of a person who died with a Will. They are customarily in the form of a certificate with a raised seal.

Letters of Trusteeship - These are issued by the Court in a Probate Proceeding to appoint the person -- who is called the Trustee -- who is given authority to handle the Trust set up in the Will of a person who died. They are customarily in the form of a certificate with a raised seal.

Litigation - The filing of a lawsuit or other proceeding to prosecute a dispute or controversy. Typically, this is the name given to court work such as the service of pleadings, the making of motions, the conducting of depositions and other pre-trial discovery, and trial.

Living Trust (another name for Inter Vivos Trust)

Living Will - A Living Will is one of the Advance Directives. It is the document whereby a person explains that he or she does not want heroic measures to be taken to keep them alive if their condition is terminal and irreversible. It often provides that treatment is to be stopped if it merely prolongs the person's dying.

Medicaid - Medicaid is a federal program, which is administered by each state, that pays for medical or custodial care for people whose assets and income fall below a certain level.

Medicaid Planning - Medicaid Planning is the use of sophisticated techniques to make a person eligible for Medicaid. This is often used in situations where some one needs care at home, in an Assisted Living Facility, or in a Nursing Home in order to accomplish the Activities of Daily Living.

Medicare - Medicare is a federal program that pays for medical care for older people and people with certain ailments, such as kidney failure.

NAELA or the National Academy of Elder Law Attorneys - As the organization itself explains:

"The National Academy of Elder Law Attorneys, Inc. is a non-profit association that represents lawyers, bar organizations and others who work with older clients and their families. Established in 1987, the Academy provides a resource of education, information, networking and assistance to those who deal with the many specialized issues involved with legal services for seniors and people with special needs.

The mission of the National Academy of Elder Law Attorneys is to establish NAELA members as the premier providers of legal advocacy, guidance and services to enhance the lives of people as they age as well as individuals with special needs. The NAELA membership is comprised of attorneys in the private and public sectors who deal with legal issues affecting the elderly and disabled. Members also include judges, professors of law, and students.

Some of the issues NAELA members assist their clients with include, but are not limited to: public benefits, probate and estate planning, guardianship/conservatorship, and health and long-term care planning. NAELA's vision is to be the recognized leader inspiring and empowering attorneys to enhance the quality of life for the elderly.

Power of Attorney - A Power of Attorney is one of the Advance Directives. The Power of Attorney is the document whereby a person designates an agent to have authority to act on his behalf. The powers given to the agent can be broad (as in a General Power of Attorney) or narrow (as in a Limited or Special Power of Attorney). Usually, the Power of Attorney continues to be effective even after the person who gave the Power of Attorney becomes incapacitated -- this is called a Durable Power of Attorney. There is a special kind of Power of Attorney that comes into effect upon the happening of a specific event (such as the incapacity of the principal) -- this is called a Springing Power of Attorney, so called because it "springs" into being. Effective as of September 1, 2009, the Power of Attorney law of New York was significantly overhauled. Among the important changes is that now the Power of Attorney must be witnessed by two witnesses (as well as having to be notarized, as before), and must now also be signed by the agent as well, and the agent's signature must also be notarized. For an article on New York's new Power of Attorney law, click here.

Probate - From the Latin meaning "to prove". The Probate Proceeding is the Court proceeding done where a person dies leaving a Will. The Court is literally proving that this is indeed the Last Will and Testament of the deceased. A Will is not valid and effective until it is probated.

Supplemental Needs Trust also known as Special Needs Trust or "SNT" - A special kind of trust, expressly authorized by law, that can hold assets in a way that allows the beneficiary to enjoy the benefits and security associated with those assets, while still allowing the beneficiary to qualify for government benefits, such as Medicaid. This is because the assets held by the SNT are not counted as available resources for the beneficiary, since, strictly speaking, the beneficiary does not own them in his own name and does not have direct access and control of them -- the trustee of the SNT does. The law says that these assets are not to replace or "supplant" government benefits; instead, the assets are to supplement any government benefits for which the beneficiary would otherwise be eligible. For an article by Jim D. Sarlis, Esq. on Supplemental Needs Trusts (also know as Special Needs Trusts or SNTs), click here.

Surrogate's Court - The Court in New York that focuses on issues concerning Estates. A Will is probated in the Surrogate's Court. Estate issues such as contested probate, administration (see above), and trust issues are generally dealt with by the Surrogate's Court. The Surrogate's Court often also handles adoptions, and certain kinds of guardianship (guardianships involving Mental Hygiene Law Article 81 are generally handled in the Supreme Court). The judge of the Surrogate's Court is called the "Surrogate".

Tenants in Common - Tenancy in common is the default form of co-ownership (or "concurrent estate"), in which each owner, referred to as a tenant in common, is regarded by the law as owning separate and distinct shares of the same property. By default, all co-owners own equal shares, but their interests may differ in size. This form of ownership is most common where the co-owners are not married, not family members, or have contributed different amounts to the purchase of the property; for example, the assets of a joint commercial venture might be held as a tenancy in common. Tenants in common have no right of survivorship, meaning that if one tenant in common dies, that tenant's interest in the property will be part of his or her estate and pass by inheritance to the deceased owner's beneficiaries by Will or, if there is no will, heirs, by intestate succession. Also, as each tenant in common has an interest in the property, they may, in the absence of any restriction agreed to between all the tenants in common, sell or otherwise deal with the interest in the property (e.g. mortgage it) during their lifetime, like any other property interest. See also the explanation of co-ownership under the definition of "Deed", above.

Tenants by the Entirety - A tenancy by the entirety (sometimes called a tenancy by the entireties) is a type of co-ownership (or "concurrent estate") unique to married couples; ownership of property is treated as though the couple were a single legal person. [Note: While formerly available only to married heterosexual couples, that situation is likely to evolve now that same-sex marriages and domestic partnerships are increasingly being recognized. For example, in Hawaii, the option of Tenants by the Entirety ownership is also available to domestic partners in a registered "Reciprocal Beneficiary Relationship"; also, Vermont's Civil Union statute qualifies parties to a civil union for tenancy by the entirety). Like a JTWROS, the tenancy by the entirety includes a right of survivorship, so if one spouse dies, the entire interest in the property passes to the surviving spouse, by operation of law, without going through probate. In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise. Also, besides sharing the four unities necessary to create a joint tenancy with right of survivorship - time, title, interest, and possession - there must also be the fifth unity of marriage. However, unlike a JTWROS, neither party in a tenancy by the entirety has a unilateral right to sever the tenancy. The termination of the tenancy or any dealing with any part of the property requires the consent of both spouses. A divorce breaks the unity of marriage, leaving the default tenancy, which may be a tenancy in common in equal shares. Benefits can include the ability to shield the property from creditors of only one spouse, as well as the ability to partially shield the property where only one spouse is filing a petition for bankruptcy relief. If a non-debtor spouse in a tenancy by the entirety survives a debtor spouse, the lien can never be enforced against the property. On the other hand, if a debtor spouse survives a non-debtor spouse, the lien may be enforced against the whole property, not merely the debtor spouse's original half-interest. [Note: Many US jurisdictions other than New York no longer recognize tenancies by the entirety.] See also the explanation of co-ownership under the definition of "Deed", above.

Testamentary Trust - A trust formed under a Will. Common testamentary trusts include a trust for a surviving spouse, a trust for a minor child, and a trust for a person with disabilities (usually called a Supplemental Needs Trust, or a Special Needs Trust, commonly abbreviated as "SNT").

Testator - The person whose Last Will and Testament it is [a female is still sometimes called a "Testatrix"]).

Trust - A trust is a relationship based upon an agreement. In a trust setup, there are basically three main positions: the grantor, who is the person who creates the trust and puts an asset into the trust; the trustee, who is the person who holds title to the asset and actually carries out the trust; and the beneficiary, who is the person for whom the trust is set up. A trust is, essentially, a way to hold on to an asset where the title to the asset is held in one person’s name (i.e., the trustee) for the benefit of another person (i.e., the beneficiary). There are inter vivos trusts (or living trusts), which take effect while the grantor is alive. These can be revocable (meaning that they can be changed or terminated at any time) or irrevocable (meaning that, generally speaking, they cannot). There are also testamentary trusts that are included in a Will, which take effect after death. For an article on Trusts, click here; for a video on Trusts, click here. There is also a concept called Constructive Trust where a trust relationship will be considered to exist by the circumstances and the actions of the parties (for an article on Constructive Trusts, click here).

Trustee - The person who holds title to the assets in a trust arrangement for the benefit of the beneficiary. The trustee is the fiduciary of the trust. For an article on Trustees' duties, click here.

Will (another name for Last Will and Testament)

The foregoing are complex concepts that cannot be fully explained simply within the time and space limitations here. Of necessity, therefore, we can only provide general explanations that have been simplified. We cannot address all the nuances, exceptions, and variations that are possible. More information is available throughout the website; however, we strongly recommend that you consult with an attorney knowledgeable in these fields to discuss your particular situation.