Wills, Trusts and Estates

Estate planning is tailored to each individual's needs and situation. A critical part of estate planning is creating documents that outline your wishes for distributing your assets after you die. However, as part of a basic estate plan, most people should have a Will, Health Care Proxy and Power of Attorney. Making a Will is especially important for people with young children, because Wills are the best way to transfer guardianship of minors. Few people enjoy estate planning. After all, deciding how you want your assets distributed after you die can serve as an unnerving reminder of your mortality. It does, however, give one peace of mind when your estate plan is complete and in order.

Upon the death of a loved one there are many legal and practical matters that must be addressed. During this difficult time, I will provide you with the guidance and assistance necessary to ensure that all matters are handled properly. This includes petitioning the Surrogate's Court to probate the decedent's Will, or if the deceased did not have a Will, then to have a family member appointed as the administrator of the estate. I can guide you through the complexities that may be encountered in the administration of the estate and distribution of the decedent's property. All legal fees are paid out of the proceeds of the estate. If necessary I can represent family members in Will contests or other proceedings in Surrogate's Court.

FAQS

Answers

A Will is a written document that disposes of a person's property at the death of that person.

Yes. In a Will, one can appoint a legal guardian for his or her children if the children are under 18 years of age when the testator dies. A Will can also create a Trust, called a Testamentary Trust. A Will also appoints an Executor(s) and Trustee(s) if a Trust is created under the Will.

Yes. A Will tells the world exactly where you want your assets distributed when you die. Making a Will is especially important for people with young children, because Wills are the best way to transfer guardianship of minors. Dying without a Will, also known as dying "intestate" can be costly to your heirs and leaves you no say over who gets your assets. Even if you have a Trust, you still need a Will to take care of any holdings outside of that Trust when you die.

A testator is the person who is making the Will.

An Executor is a person appointed by the Testator to carry out the directions and requests in his or her Will, and to dispose of the property according to the provisions of the Will.

All property that is held individually can be disposed under a Will.

Property held jointly, for example, real estate and bank accounts that are held as husband and wife or as Joint Tenants with Rights of Survivorship are disposed of by operation of law. This means that upon proof of death the property automatically vests in the joint tenant.

No. It passes automatically by operation of law.

Yes. A Will can be revoked at any time by making a new Will. In fact, it's a good idea to review your will periodically and especially when your marital status changes. You should also review your beneficiary designations for your 401(k), IRA, pension, and life insurance policy since those accounts will be transferred automatically to your named beneficiaries when you die.

Probate is the act or process of proving a Will. It is a judicial determination by the Surrogate's Court where the decedent resided, establishing the validity of the Will presented. Once proved or probated, the Surrogate's Court issues Letters Testamentary to the Executor of the Will to settle the estate. Probate is necessary because it is the only way to change the title of assets from the deceased person's name to the persons entitled under a Will.

If your family member had no Will but owned property such as real estate or bank accounts that were held individually, in his or her name only, then the answer is yes. In the State of New York State this is called an Administration of an Estate. You would have to petition the Surrogate's Court for Letters of Administration to pass along the assets of the estate according the New York State laws of intestacy, the distribution of assets to family members who stand to inherit under New York State law when a person dies without a Will.

The term Trust refers to an arrangement where one person holds legal title to property for the benefit of another person. There are many different types of Trusts used for many different reasons. The Trust that is often used as a Will substitute is generally called a Revocable Trust, Living Trust or Inter Vivos Trust. This type of trust permits property to be distributed at death without the requirement of probate. A Trust can also be created after death if contained in the Will of the decedent. This type of trust is called a testamentary trust.

Yes. Everyone should also have a Health Care Proxy or Living Will and Power of Attorney.

A Health Care Proxy Law allows you to appoint someone you trust, for example, a family member or close friend, to make health care decisions for you if you lose the ability to make decisions yourself. By appointing a health care agent, you can make sure that health care providers follow your wishes.

That person should be able to do three key things:

  1. Understand important medical information regarding your treatment
  2. Handle the stress of making tough decisions
  3. Keep your best interests and wishes in mind when making those decisions
Your agent can also decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent's decisions as if they were your own. You may give the person you select as your health care agent as little or as much authority as you want. You may also give your agent instructions that he or she has to follow. A Health Care Proxy can also be used to document your wishes or instructions with regard to organ and/or tissue donation.

A Living Will (also known as an advance medical directive) is a statement of your wishes for the kind of life-sustaining medical intervention you want, or don't want, in the event that you become terminally ill and unable to communicate.

A Power of Attorney grants someone you trust, known as your "agent" or "attorney in fact", to manage your financial affairs if you are unable to do so. You can grant your agent broad powers or the powers granted can be specific or limited. Your agent is empowered to sign your name and is obligated to be your fiduciary, meaning they must act in your best financial interest at all times and in accordance with your wishes.

Yes. The two types frequently used in estate planning are:

  1. Durable Power of Attorney. This type of Power of Attorney is effective immediately.
  2. Springing Power of Attorney. This type only goes into effect under circumstances that you specify, the most typical being when you become incapacitated. This means that your agent cannot act until he or she provides doctors' letters and sometimes court orders to prove you are incapable of making decisions for yourself.

Please contact my office, if you have additional questions concerning Wills, Probate, Administration and Estate Planning related matters.