Wills, Trusts and Estate Law
Last Will and Testament:
The Last Will and Testament, commonly known as a Will, is an extremely important document. A Will is created by a person during his/her lifetime.
The Will must then be properly executed according to New York State Law in order to be valid.
A Will can be revoked (cancelled) or changed at any time before the creator’s death. In order to revoke (cancel) or change a Will, certain formalities must be followed in order for the new Will to be valid.
When a person dies, the Will is presented to the court to be validated. After a Will is deemed to be valid by a judge, the Will then controls the distribution of any and all assets of the deceased person including property, investments, personal property, cars, art, bank accounts and money. All assets, property, personal property, investments and money is referred to as “the estate”.
When executed properly, a Will informs the court as to how the creator (Testator or Testatrix) would like his/her Estate to be distributed. If a person creates a Will, the creator (testator or testatrix) can decide how to distribute any property, assets, investments and money. There are certain exceptions which control the distribution of some assets and/or property; for example: regarding spouses and/or property held with rights of survivorship. Other than the few exceptions, a Will creator (testator or testatrix) can distribute his/her Estate in any manner they desire.
A Will is extremely valuable to people with minor children. A Will allows a parent with minor children to decide who will become guardian of their children in the event they die. If no Will exists then the guardianship of the children will be decided in court.
When a person dies without a Will, the Estate is then entered into a process known as Intestacy. Intestacy is the process by which the court uses the statutory regulations in deciding how a person’s Estate shall be distributed.
Intestacy: a brief and basic overview. For more details, please contact the office:
If when you die:
-You are married and no children then everything goes to your spouse, or
-You are NOT married but have children then your estate is divided among the children, or
-You are married and have children then spouse inherits the first $50,000 of your intestate property plus
1/2 of the balance then the rest to your children equally, or
-You have no spouse and no children then your estate is split between your parents, or
-You have no spouse, no children, no parents then estate goes to your siblings.
The process of Intestacy which forces the State to decide how to distribute your assets can be avoided by creating and executing a valid Will.
Living Will and Heathcare Proxy:
A Living Will and a Heath-care Proxy are instruments which allow the creator to decide what type of treatments that he/she would want if they were incapacitated or were deemed incompetent. These documents allow a person to either give a specific person control of their heath-care decisions in the event of incapacity or it can be very specific as to what procedures should be done.
Common instruction from creators of this type of document is the request that they not be kept alive through mechanical respiration or via a feeding tube if they do not have brain activity.
This is a very important document to have because when a loved one has the option to keep their loved one alive, it can be difficult for them to decide to let that person go.
Having specific instructions as to your wishes lifts the burden off the loved one and makes the decision more manageable.
Springing Durable Power of Attorney:
A Springing Durable Power of Attorney is a document which creates a fiduciary relationship between the creator (grantor) and the person they declare (grantee) as having the power of attorney. This fiduciary relationship allows the grantee to control the finances of the grantor at the time of a specific date or event.
A Springing Durable Power of Attorney is an extremely important document in cases of incapacity. Incapacity results when a person is no longer able to control their own finances in such cases as accidents resulting in brain damage, mental illness or any other occurrences that result in the inability to understand and control one’s finances.
If a person becomes incapacitated due to an accident or an illness and that person can no longer control their finances; then who will pay the bills and debts of that person?
If a person becomes incapacitated without a Springing Durable Power Attorney then the court will have to intervene, often times resulting in an expensive proceeding to determine a guardian. Many times the person determined to be guardian is an appointed attorney.
This process can be easily avoided by creating a Springing Durable Power of Attorney.
This document states who is in charge of your finances in the event of incapacitation, if incapacitation never occur then the grantee never becomes in charge of your finances. Typically a person grants this power of Attorney to their spouse or child or close friend. It is used to ensure that in the event of incapacitation the bills and other expenses as well as income are seamlessly taken care of during your time of need.
Appointment of Disposition of Remains:
This is a document which states the creator’s wishes as to what he/she would like to be done with his/her remains after death. This document allows for the creator to states that he/she does not want to be cremated or that he/she does not want to be buried. This document can be an invaluable tool after death because sometimes religious beliefs of family members can cause arguments and disagreements as to what to do with the remains. If a person has this document then there is no arguing because you have direct instructions from the deceased.
A trust is a document, depending on the type of trust created, which can have many advantages when used correctly. There are many different types of trust which convey a different advantage.
A trust can be used to avoid probate. A trust can be used to delay lump payment to a beneficiary until they reach a specific age. A trust can help to reduce tax liability. A trust can be used to help a loved one, who may have a problem spending, get their inheritance monthly so they are unable to spend all of it at once.
The following are a few different types of trusts which have various benefits.
-Revocable Trust: Helps to avoid Probate
-Testamentary Trust: a trust which is created as part of a Will
-Irrevocable Trust: a Trust which can be designed to reduce estate tax liability
-Spendthrift Trust: A trust created to ensure that a beneficiary does not spend entire inheritance at once.
A Trust is not appropriate for everyone. Contact a lawyer to see if creating a Trust is in your best interest.