In the basic sense of the term, a will is a document that is made up by a person, or several people, to spell out how final affairs should be taken care of once the person has passed away. Each will must meet a set standard that is determined by the state in which a person lives. If poorly crafted, the will may not be useful in a court of law, especially if it is contested.
To draft a will, there is a lot of information that is collected upfront. Figuring out executors, beneficiaries, assets, debts, and the distribution of your estate is essential to the seamless administration of your estate when the time comes. The will drafting process should be thorough enough to cover most situations in life, but everyone has different circumstances. Your needs, the nature of your estate, and even the way you interact with potential heirs all affect how your will should be drafted in life, and how your assets are distributed after your passing.
When setting up a will, it is necessary to first figure out the type of will that best suits your needs. At New York Legacy Lawyers, our team of New York estate planning lawyers is ready to assist you in determining the best type of will for your needs. With our experience and attention to detail, we can guide you through the process of securing your assets and protecting your loved ones. Contact us today at (718) 713-8080 to schedule a consultation.
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The Simple Will
This type of will dictates how property from a person’s (testator’s) estate is to be distributed. This will is usually created by a person that has a straightforward financial makeup. It is simple enough that the testator can make it out themselves with the occasional guidance of a lawyer to avoid mistakes. It includes the testator’s name, address if they were married or not, and a list of instructions spelling out how all assets are to be distributed. It is also be typed and not handwritten to avoid the issue of forgery. The will names a person responsible for executing the will, the executor. Moreover, it also has a section that determines where minor children are to be placed. The testator will need to date and sign the will in front of witnesses for it to become binding and legal.
The Testamentary Trust in Your Will
The testamentary trust is a structure you can set up that will smooth the task of responsibly administering all funds and property that are named in a trust identified within the will. For instance, a person might set up a “spendthrift trust” for someone that is not financially responsible enough to manage their assets due to age or financial immaturity. The solution in your will is to name someone responsible as the administrator of the trust that you had previously setup with the help of an estate planning attorney. Once the trust recipient (beneficiary) has met certain conditions, usually they reach a certain age, the contents of the trust are distributed to them..
The Joint Will
This type of will is created by two testators that have decided to leave their property one to another. The way that this kind of will works is that the person who dies last is the one that gets everything. Beyond that, a joint-will also spells out what happens to the estate once the second person passes away. The will becomes permanent once one of the testators dies. Which makes sense, since the trigger of the will, a death of one of the testators, has occurred. If both testators are living, then the will can be dissolved or recreated. However, it can only be changed at the consent of both testators.
The Living Will
This kind of will does not deal with monetary or property issues. In fact, it’s not a Will as you would understand it; instead, it is a valuable tool for your family or trusted friends to utilize while you’re still alive. A living will provides healthcare professionals and trusted friends and family the instructions a person needs when they are unconscious or unable to speak or coherently make decisions.
A living will is beneficial for when a person is near death or unable to make decisions for their self-care. For example, if a person were hooked up to a breathing machine and the family was conflicted on whether to keep the person on life support, they could (or would) seek guidance from the wishes of the person on life support – via their living will.
Types of Wills
Description
Simple Will
Dictates distribution of property from a testator’s estate. Created by individuals with straightforward finances. Includes testator’s name, address, marital status, and asset distribution instructions. Typed to avoid forgery. Names an executor and determines placement of minor children. Requires testator’s signature in front of witnesses.
Testamentary Trust
Structure within a will to administer assets in a trust. Ensures responsible management for beneficiaries who may be financially immature or of a certain age. Names a trust administrator. Contents distributed to beneficiary upon meeting specific conditions.
Joint Will
Created by two testators leaving property to each other. Survivor inherits everything. Specifies estate distribution upon second testator’s death. Becomes permanent after first testator’s death. Can be dissolved or recreated only with both testators’ consent.
Living Will
Not a traditional will. Provides instructions for healthcare professionals and trusted individuals when testator is unable to make decisions. Helps guide self-care decisions when near death or incapacitated. Offers guidance on life support continuation based on testator’s wishes.
Nuncupative Wills
Nuncupative wills, commonly referred to as oral or “deathbed” wills, are an exception to traditional estate planning, allowing individuals to express their final wishes verbally under specific circumstances. Recognized under New York Estates, Powers and Trusts Law § 3-2.2, these wills are permitted in limited situations and must meet stringent requirements to hold legal validity.
A nuncupative will involves no written documentation. Instead, the testator—a person making the will—declares their wishes aloud in the presence of at least two witnesses. This method is reserved for individuals in exceptional circumstances, including members of the armed forces during active service in a war or armed conflict, civilians accompanying military forces, and mariners while at sea.
These wills are inherently temporary. For example, if created by a service member, the will becomes invalid one year after their discharge from the armed forces. Mariners’ nuncupative wills expire three years after being made. However, if the testator lacks testamentary capacity when the time limit expires, the will’s validity may extend for an additional year after capacity is regained.
While nuncupative wills offer a critical option in urgent situations, they are fraught with challenges, including the difficulty of proving the testator’s intent without written documentation. This vulnerability to disputes highlights their limited use and the preference for formally executed wills in most scenarios. For long-term estate planning, drafting a written will with legal guidance is strongly advisable to avoid ambiguity and potential conflicts.
What are the Four Major Components of a Will?
In New York, it is mandatory for a will to be in written form, requiring the testator’s signature, and the attestation of two individuals who are at least 18 years old. It’s important to note that beneficiaries named in the will cannot serve as witnesses to ensure its validity. If an unsuitable witness is used, it can result in the permanent invalidation of the will. Meeting the legal criteria for witnesses is typically challenging for blood relatives.
While there are a few exceptions to these requirements, they are rare. A nuncupative will, spoken aloud or recorded in the presence of at least two witnesses, is one such exception. Another exception is a holographic will, entirely handwritten by the testator, which doesn’t require any witnesses. However, both holographic and nuncupative wills are generally not preferred because they don’t provide the same level of authenticity as written and authenticated wills, and they are considered legally valid only under exceptional circumstances.
One such circumstance is when a member of the armed forces or an accompanying person, such as a reporter, drafts the will during a military conflict. In such cases, a holographic will lose its validity one year after the testator leaves military service, serving as a measure of last resort. The other exception is when a mariner drafts the Will while at sea, which becomes void three years after its establishment.
To ensure that your will satisfies the required components, it is important to get the help of an experienced New York estate planning attorney. An attorney can guide you on the necessary guidelines and ensure that your wishes are reflected in the relevant documents.
Getting Professional Guidance on Wills
If you are looking to establish a will, then all of us at Yana Feldman & Associates, PLLC can help you. We specialize in estate planning and elder law. We desire to help families like yours to take care of the things that matter.
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Facing the reality of death or incapacitation can be challenging, but it’s essential to have these conversations, especially if you have young children or a non-traditional family structure. Ensuring your wishes are respected and your loved ones are protected is where estate planning comes into play.
Both a will and a living trust can help you manage your estate and medical concerns if you’re no longer able to do so yourself. But how do you know which one is right for you? Is a living trust necessary? How do you set up a will? Can a will and living trust be used together?
To make an informed decision about estate planning, consider consulting with a knowledgeable estate planning attorney in New York. At New York Legacy Lawyers, our team of skilled Brooklyn estate planning lawyers can assist you in selecting the most suitable option and creating a comprehensive plan tailored to your needs. Contact us today at (718) 713-8080 to schedule a consultation.
What is a Living Trust?
A living trust is a legal document created by the grantor, the individual who contributes assets to the trust. The objective of a living trust is to maintain ownership of your assets during your lifetime. The general strategy involves moving as many assets as possible into the trust, although certain assets like life insurance and retirement accounts are not eligible for inclusion. Once placed in the trust, these assets are administered for your advantage throughout your lifetime.
The responsibility of managing the trust falls upon a trustee of your choice. While you have the freedom to appoint anyone as the trustee, it is common to designate yourself for full control. In addition, you can also name a successor trustee who takes over the role after your passing. Once you pass away, the trustee maintains management and protection of your assets and subsequently allocates them to your designated beneficiaries.
One advantage of a living trust is its capability to avoid probate. Probate involves court procedures for validating and executing a will, which can be a time-consuming process that can take several months and become expensive over time. However, a trust can eliminate the need for probate while also allowing you to orchestrate an immediate distribution of your assets through the trust terms.
If you’re curious about the intricacies of living trusts and how they can help you achieve your estate planning goals, it is crucial to seek guidance from a skilled New York estate planning lawyer. At New York Legacy Lawyers, our attorneys can help you understand how a living trust works and guide you through the process of establishing one that is tailored to your unique needs. We can provide clarity and peace of mind for your estate planning journey. Contact us today to discuss your specific situation and ensure that your assets are protected for the future.
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Living Trusts and Wills: Essential Differences in Estate Planning
Understanding the differences between living trusts and wills is essential in estate planning. Both tools have unique features and benefits that can significantly impact how your assets are managed and distributed. Recognizing these differences helps ensure your estate is handled as you intend.
Complexity
Living trusts and wills don’t have to be overly complicated. Complexity arises when significant assets, such as property, investments, or vehicles, are involved, or when multiple individuals may claim entitlement to your estate.
Living trusts come in two types: revocable and irrevocable. Irrevocable trusts are less common because they cannot be altered after they are established. They are often used to protect assets from lawsuits or reduce tax liabilities.
Revocable trusts, on the other hand, provide flexibility. They can be modified to reflect changes in your financial situation or personal preferences. This type of trust can also simplify the process of asset distribution after the trust holder’s passing.
Privacy
A revocable living trust is a private agreement between the trust entity and trust holder. It helps your beneficiaries by allowing them to avoid probate,, the court process used to distribute assets after the estate holder’s death. In addition to the protection from probate, trusts also offer privacy, as they are not part of the public record.
Conversely, a will becomes public record once it is filed with the court to initiate probate. This means the details of assets and finances being transferred are accessible to anyone who wishes to view them.
Health
A living trust manages your financial affairs both during your lifetime and after your death, while a will only takes effect after you have passed. Individuals who are elderly or facing illness may also consider creating a living will.
A living will handles your medical affairs if you are unable to speak for yourself. It allows you to specify whether you want to receive life-saving treatments, such as CPR or life support. This type of document is only necessary for these specific situations.
A living trust allows you to name a successor trustee to manage your finances if you become mentally incapacitated. This can be especially important for same-sex partners, unmarried individuals, or those who wish to designate a friend or non-family member to advocate on their behalf and handle their estate.
Without a living trust or power of attorney, the court will appoint someone to manage your affairs, which may not align with your preferences. Filing for a power of attorney can help ensure your wishes are respected.
Matters Involving Children
Living trusts allow you to leave property to children, but since minors under 18 cannot legally own property, a designated manager must be appointed to oversee it. Only a will allows you to arrange both guardianship for your children and the management of their property after your passing.
Your Estate After Death
To designate property in a living trust, you must transfer the property into the trust. For many items, making a list and attaching it to the trust document is all that’s required. Larger items that have a title document require that you rename the title to the name of the trust.
You will also need to appoint someone to handle your estate affairs after your death. In a will, this person is called an executor. They are responsible for managing your assets and distributing them after probate. In a living trust, the successor trustee handles only the assets placed in the trust.
Most estates will still require an executor, even if the majority of property is transferred to a trust. The same person can serve as both the executor of the will and the successor trustee.
Choosing between a living trust and a will depends on your personal circumstances. Carefully considering the advantages of each option will help you make informed decisions that align with your estate planning goals and provide peace of mind for the future.
Factors
Living Trust
Will
Complexity
Two forms: irrevocable and revocable. Revocable trusts can be changed while irrevocable trusts can’t be changed once papers are signed.
Handwritten wills are acceptable, but not advised. It can become complicated if there are significant assets or multiple potential beneficiaries.
Privacy
A private contract between trust entity and holder, and helps beneficiaries avoid probate.
Becomes public record when filed with the court for probate.
Health
Manages financial affairs during the end of life and after death. Allows naming of successor trustee if mentally incapacitated.
Handles affairs after death. Living will necessary for medical affairs if unable to advocate for oneself.
Matters Involving Children
Allows leaving property to children, but requires a designated manager as children under 18 can’t own property.
Only a will allows for arranging children’s guardianship and property.
Your Estate After Death
Property must be transferred to the trust. Large items require renaming of the title to the trust’s name. Successor trustee manages assets in the trust.
Executor manages assets and distributes them after probate. Most estates require an executor, even if property is transferred to the trust.
Difference Between Trust and Will
Wills and trusts are legal documents that are commonly utilized for transferring assets to loved ones after one’s death. Despite sharing some similarities, such as the ability to modify or revoke them during one’s lifetime, the primary difference between these documents lies in their approach to asset distribution among beneficiaries.
A will, also known as a last will and testament, designates an executor to manage the distribution of assets after death. In addition, a will can also serve to appoint a guardian for minor children and outline funeral arrangements. However, a will must go through the probate court process in order to be legally binding. This involves the court assessing the value of the property left by the will and approving its distribution to beneficiaries. Unfortunately, probate can be time-consuming, expensive, and public, as the details of the estate become part of the public record.
On the other hand, a trust establishes a relationship between the assets of the owner and a trustee who manages them for the beneficiaries. Assets placed in a trust bypass probate, reducing court costs and the time required to receive inheritances. Furthermore, trusts are private documents that cannot be viewed by anyone outside of the trust, making them ideal for those concerned with privacy.
Trusts offer greater control over the distribution of funds, particularly for those with minor children, numerous beneficiaries, or concerns about their heirs’ spending habits. For example, an individual may opt to distribute a child’s inheritance over time to prevent overspending, or delay the distribution of assets until the heir reaches a specific age. Trusts can also be beneficial in supporting someone with special needs without affecting their eligibility for government benefits.
Revocable Trust vs. Will
When planning for the future management and distribution of your assets, deciding between a revocable trust and a will is crucial. Both serve the purpose of guiding the transfer of your assets to your heirs, but they operate differently and offer distinct benefits.
A revocable trust is active immediately upon creation. This means the designated trustee, potentially you, manages your assets right away for the benefit of your beneficiaries. This setup not only provides a smooth transition of asset management without court involvement but also offers privacy, as the contents of the trust do not become public record. Importantly, you can modify or dissolve a revocable trust at any point during your lifetime, provided you are mentally competent.
A will, on the other hand, is a document that only takes effect after your death. It outlines who will inherit your assets and may include provisions for the guardianship of minor children. The execution of a will requires probate, a legal process that validates the will and oversees the distribution of the estate. This process is public, which means the details of the will can be accessed by others. Like a trust, a will can be changed at any time during your life.
Choosing between a revocable trust and a will depends on your personal circumstances, including your privacy preferences, the complexity of your assets, and your goals for how and when your heirs receive their inheritance. Consulting with a New York estate planning attorney can help clarify which option best aligns with your needs.
Can You Have Both a Will and a Living Trust?
Many individuals wonder if they can incorporate both a will and a living trust in their estate planning strategy. The answer is affirmative, and it can even be advantageous in specific situations. By combining a will and a living trust, individuals can ensure that their assets are distributed according to their preferences and their loved ones’ future necessities are fulfilled.
A living trust can provide more security to those who wish to evade probate or have minor children who might not be capable enough to manage their inheritance prudently if they receive it as a lump sum at a young age. On the other hand, a will permits the nomination of a guardian for underage children, which is not possible with a trust.
A suggested approach is to use a will to finance the living trust with any assets that were not previously included in the trust before death. A “pour-over” will directs that any assets outside the trust at the time of death be shifted to the trust, which will be supervised by a successor trustee for the beneficiaries’ advantage. This strategy guarantees that the assets intended for children are managed according to the creator’s directives.
To determine the most suitable course of action for your unique circumstances, consulting a competent estate planning attorney in New York is highly recommended. They can provide assistance with wills and trusts, helping you create a plan that addresses both your needs and those of your loved ones. Contact us today to schedule a consultation.
Living Trust vs. Will: A Look into the Best Choice for Your Situation
58% of Baby Boomers (ages 53-71,) and 81% of those 72 or older have a living will or trust. They already see how smart it is to begin planning for the fact they will not be around forever. Likely this planning is tinged with years of experience watching family and friends go through the confusion and disputes that often arise over assets and estates when the original owner of them passes without making their wishes known.
One estate planning tool that many of these baby boomers have turned to, and that many more are looking at, is a living trust. A living trust and a last will & testament often go hand-in-hand. Here’s what you need to know about how they compare. Reach out to us at the New York Legacy Lawyers to consult with a skilled New York estate planning lawyer. Discover valuable estate planning tips and determine whether a will or trust is the best option for your situation.
Probate Is Different Than a Trust or a Will
Unlike a will, a living trust is something you can use and benefit from while you are still alive. In a living trust, you transfer some or all of your assets into the trust (as the grantor), then you manage the trust as the trustee, and receive the benefits of the trust as the original beneficiary. Knowing that you may become incapable or unfit to manage your assets (trust) one day, you can designate someone to be responsible for your property if and when you become mentally or physically unable to do so. When you pass away, a successor trustee becomes responsible for carrying out the intent of the trust to whichever beneficiaries you’ve designated.
You and your spouse will likely want to be co-trustees while you are still alive, maintaining full control of your assets. Your spouse can take over if you become incapacitated.
Most couples name their children as successor trustees in the event of their death. If they are uncomfortable with this arrangement, they can appoint a professional to oversee their assets.
While you are alive, your living trust can be altered or dissolved at any time.
Both a will and trust give detailed inheritance instructions, and allow you to designate someone to oversee the distribution of your assets. With a will, however, your document will likely go through probate. This process can take months and become costly if it is contentious. Your assets will be tied up during this time.
With a living trust, the parts of your estate in the trust will not pass through probate court. Instead, the person you have designated as your trustee will carry out the requirements you outlined in the trust.
Opacity = Trusts | Transparency = Wills
Official documents, such as a will, and those that go through probate, become a part of the public record. Living trusts will not be subject to public scrutiny unless a beneficiary or trustee demands court approval. Many people prefer that their wishes remain a private matter and a trust is a great way to keep the value and assets of your estate confidential.
Why would that matter? Imagine you’re leaving $2 million for your 15-year-old son to inherit when they turn 20 years old. You can imagine some people will want to share their ideas on how to spend $2 million with anyone new to that kind of cash on hand. Or worse, if you wanted to leave that $ to your son, but your estranged sister knew about it and preyed on their guilt to siphon some of it away.
These are only two scenarios, the point here is that the fewer people you have poking around your estate and knowing who received what, the better-off the beneficiaries are likely to be.
For Estates of a Certain Size, Tax Planning Is Critical
Many folks with larger estates can take advantage of tax exemptions by dividing their assets smartly. Trusts and wills have very different tax exposure risks. Make sure you choose to work with an estate planning attorney that knows about how taxes will affect your estate.
401k and Life Insurance
Many couples have a 401K or life insurance policy that they would like to leave to their children, if they do not reach the age of retirement. If you have a will, those funds would go into the hands of a court-approved guardian until your child reaches the age of 18.
With a revocable living trust, however, a trustee can accept these funds in the event of your death. You can decide if your child receives them at age 18, 25, or 30, or through some other manner other than age.
Working with an Experienced Brooklyn Estate Planning Attorney
Understanding the difference between a living trust and a will is essential when planning how to manage and distribute your assets. A living trust offers flexibility during your lifetime, allowing you to control your assets and avoid probate after death. In contrast, a will only takes effect after your passing, detailing how your estate should be distributed and naming guardians for minor children. Both tools have unique advantages, and selecting the right one depends on your specific goals and circumstances.
At New York Legacy Lawyers, our skilled Brooklyn estate planning lawyers can guide you through the decision-making process to help create a plan that reflects your needs and priorities. Whether you are focused on avoiding probate, providing for your loved ones, or achieving peace of mind, professional guidance can simplify the process. Contact us today at (718) 713-8080 to schedule a consultation and take the first step toward securing your estate plan.
I. Introduction to Estate Planning
A. Definition of Estate Planning
Estate planning is the process of arranging for the management and distribution of one’s assets and affairs after death.
B. Importance of Estate Planning
Estate planning ensures that your wishes are carried out regarding asset distribution and guardianship of minor children.
It minimizes potential conflicts and legal complications among family members.
Estate planning allows for tax planning and asset protection.
C. Key Entities:
1. Testator
The testator is the person who creates and executes a valid will or living trust.
2. Intestate
Intestate refers to the condition of dying without a valid will or living trust.
3. Intestacy Laws
Intestacy laws are state laws that govern the distribution of assets for individuals who die without a will or living trust.
D. Overview of Asset Distribution and Beneficiaries
Asset distribution involves transferring a person’s assets to designated beneficiaries or heirs.
Beneficiaries are individuals or entities named in a will or living trust to receive assets, benefits, or property from the estate.
Proper estate planning ensures that assets are distributed according to the testator’s wishes, minimizing disputes and ensuring the intended recipients receive their intended share.
II. Understanding Wills
A. Definition and Purpose of a Will
A will is a legal document that specifies how a person’s assets should be distributed after their death.
The primary purpose of a will is to ensure that the testator’s wishes are carried out regarding the distribution of their assets and the appointment of guardians for minor children.
B. Role of the Testator in Will Creation
The testator plays a central role in will creation by making decisions about asset distribution, guardianship, and the appointment of an executor.
They have the freedom to outline specific instructions for their assets and designate individuals or organizations as beneficiaries.
C. Executor and Probate Process
An executor is an individual appointed by the testator to carry out the provisions of the will and administer the estate.
The probate process involves validating the will, settling outstanding debts and taxes, and distributing assets to beneficiaries.
D. Handling Property Ownership and Privacy
A will can address property ownership by designating how ownership should be transferred to beneficiaries.
It may include provisions for the sale or distribution of specific properties.
Wills are generally public records, potentially affecting the privacy of the testator and beneficiaries.
E. Protecting Minor Children and Guardianship Designation
A will allows the testator to designate guardianship for minor children in the event of their death.
It ensures that the testator’s wishes for the care and upbringing of their children are documented.
F. Contesting a Will and Legal Considerations
Interested parties may contest the validity or terms of a will under certain circumstances.
Legal requirements and formalities must be followed to create a valid will, and it is important to consider potential challenges during the drafting process.
III. Exploring Living Trusts
A. Definition and Purpose of a Living Trust
A living trust is a legal arrangement where assets are held and managed by a trustee for the benefit of designated beneficiaries.
The primary purpose of a living trust is to provide for asset management and distribution during the testator’s lifetime and after death.
B. Benefits of Revocable Living Trusts
Revocable living trusts offer flexibility, as the testator can make changes or revoke the trust during their lifetime.
They help avoid probate and allow for privacy in asset distribution.
C. Trustee and Successor Trustee Roles
A trustee is responsible for managing and distributing assets according to the terms of the living trust.
A successor trustee steps in if the original trustee becomes unable or unwilling to fulfill their duties.
D. Trustor’s Control and Flexibility
The trustor retains control over the trust assets during their lifetime and can make changes as needed.
Assets can be added or removed from the trust, providing flexibility.
E. Asset Management and Protection
A living trust allows for centralized management of assets, potentially simplifying administration.
It may offer asset protection benefits, such as protecting assets from creditors or ensuring their intended use.
F. Incapacity Planning and Advanced Healthcare Directives
A living trust can include provisions for managing assets in case of the trustor’s incapacity.
Advanced healthcare directives within the trust can guide medical decisions.
IV. Comparison: Wills vs. Living Trusts
A. Probate Process and Cost Considerations
Wills typically go through probate, which can be time-consuming and costly.
Living trusts may help avoid probate, potentially saving time and money.
B. Privacy and Public Record
Wills are generally public records, whereas living trusts maintain privacy.
A living trust allows asset distribution to remain private and confidential.
C. Avoiding Intestacy Laws and Trust Administration
A will protects against intestacy, ensuring asset distribution according to the testator’s wishes.
Living trusts bypass intestacy laws and may simplify the administration process.
D. Pour-Over Will as a Complement to Living Trusts
A pour-over will ensures that any assets not included in the living trust are transferred to it upon the testator’s death.
It acts as a safety net to capture any overlooked assets and maintain the overall estate plan.
E. Asset Distribution and Beneficiaries
Both wills and living trusts allow the testator to designate beneficiaries and specify how assets should be distributed.
The chosen distribution method and flexibility may vary between the two estate planning options.
F. Managing and Preserving Assets
Both wills and living trusts provide mechanisms for managing and preserving assets for the benefit of beneficiaries.
Considerations include the nature of the assets, ongoing management, and tax implications.
V. Making the Right Choice
A. Factors to Consider in Estate Planning
Various factors influence the choice between a will and a living trust, including asset complexity, family dynamics, and personal preferences.
Other factors include tax planning, privacy concerns, and the need for flexibility.
B. Individual Circumstances and Goals
The individual’s unique circumstances and goals play a significant role in determining the most suitable estate planning option.
Factors such as age, health, family structure, and financial situation should be considered.
C. Consulting an Estate Planning Attorney
Seeking advice from an experienced estate planning attorney can provide valuable guidance in making informed decisions.
An attorney can assess individual circumstances, explain legal implications, and provide personalized recommendations.
D. Reviewing and Updating Estate Plans
Estate plans should be periodically reviewed and updated to reflect changes in personal circumstances, tax laws, and beneficiaries’ needs.
Regular reviews ensure that the estate plan remains relevant and effective over time.
E. Importance of Flexibility and Lifetime Management
Flexibility is important in estate planning to accommodate potential changes in asset distribution and family dynamics.
Lifetime management of assets is essential to ensure they align with the intended goals and changing circumstances.
F. Balancing Complexity, Cost, and Personal Preferences
The complexity and cost associated with wills and living trusts should be weighed against the desired level of control, privacy, and ease of administration.
Personal preferences and peace of mind play a significant role in the decision-making process.
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Facing the possibility of incapacity can be daunting, but taking steps to prepare for it is a critical component of comprehensive estate planning. It’s not just about safeguarding your assets; it’s also about providing clear directions and support for your family during such a challenging time. Planning ahead allows you to articulate your wishes regarding asset management and medical treatment, helping ensure that your preferences are respected and followed, even if you’re unable to communicate them yourself.
If you’re unsure where to start or have questions about planning for potential incapacity, the team at New York Legacy Lawyers by Yana Feldman & Associates PLLC is here to assist you. Our New York estate planning lawyers can provide practical advice and support in this often-overwhelming process. Our approach is tailored to meet your unique needs and circumstances, avoiding the common pitfalls and providing you with peace of mind knowing that your estate planning is in capable hands. Contact us today at (718) 713-8080 to schedule a consultation.
What Is a Durable Power of Attorney?
A Durable Power of Attorney is a document that empowers another individual to carry on your financial affairs in the event you become disabled or incapacitated. Without a Durable Power of Attorney, it may be necessary for one of your loved ones, including your spouse or adult child to petition a court to be appointed guardian or conservator in order to make decisions for you when you are incapacitated. This guardianship process is time-consuming, expensive, often costing thousands of dollars and it can be emotionally draining for your family.
There are generally two types of durable powers of attorney: a present Durable Power of Attorney in which the power is immediately transferred to your attorney in fact; and a springing or future Durable Power of Attorney that only comes into effect upon your subsequent disability as determined by your doctor. When you appoint another individual to make financial decisions on your behalf, that individual is called an agent or attorney in fact. Most people choose their spouse or domestic partner, a trusted family member, or a friend.
Who Can Establish a Power of Attorney?
Generally, any individual over the age of majority and who is legally competent can establish a Power of Attorney.
Who May Act as an Agent Under a Power of Attorney?
In general, an agent, or attorney in fact, may be anyone who is legally competent and over the age of majority. Most individuals select a close family member such as a spouse, sibling, or adult child, but any person such as a friend or a professional with an outstanding reputation for honesty would be ideal. You may appoint multiple agents to serve either simultaneously or separately. Appointing more than one agent to serve simultaneously can be problematic because if any one of the agents is unavailable to sign, action may be delayed. Confusion and disagreement between simultaneous agents can also lead to inaction. Therefore, it is usually more prudent to appoint one individual as the primary agent and nominate additional individuals to serve as alternate agents if your first choice is unwilling or unable to serve.
What Is a Durable Power of Attorney for Health Care?
The law allows you to appoint someone to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a “Durable Power of Attorney for Health Care” or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your healthcare agent to decide about all healthcare or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that healthcare professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors, and other healthcare providers must follow your agent’s decisions as if they were your own.
What Is a Living Will?
A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.
What Is a HIPAA Authorization?
Some medical providers have refused to release information, even to spouses and adult children authorized by the Healthcare Power of Attorney on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. Therefore, as part of your incapacity planning, you should sign a HIPAA authorization form that allows the release of medical information to your agents, successor trustees, family, or any other individuals you wish to designate.
Living Revocable Trust With Incapacity Clause
A living revocable trust with an incapacity clause is a practical tool for asset management in the event the grantor cannot manage their affairs due to incapacity. Typically, the grantor acts as the initial trustee, controlling and managing their assets freely. However, should they become unable to do so due to mental or physical incapacity, this trust contains a critical provision. It designates a substitute trustee to step in and manage the trust’s assets, adhering to pre-set conditions by the grantor.
The primary advantages of incorporating an incapacity clause in a living trust are the smooth transition of asset management and the potential bypass of guardianship. These are particularly important for assets that require immediate and ongoing attention, such as investment real estate. Without this provision, these assets would be left in a precarious state, potentially leading to significant financial losses.
The incapacity clause should clearly define what constitutes incapacity, often determined by medical evidence such as a letter from the treating physician or confirmation from two independent doctors. This safeguard prevents premature or unwarranted transfer of control. Moreover, if the grantor’s condition improves and they regain the ability to manage their affairs, the trust is structured to allow for a seamless return to their role as trustee. This setup helps maintain asset management continuity without court interference, preserving the value and integrity of the estate.
For further assistance or to address any additional concerns, contact New York Legacy Lawyers by Yana Feldman & Associates PLLC today at (718) 713-8080. Our New York estate planning lawyers can support you in securing your future and helping ensure your wishes are respected.
Aspect
Details
Definition
A Durable Power of Attorney allows another individual to manage your financial affairs if you become disabled or incapacitated, avoiding the need for court-appointed guardianship, which can be time-consuming and costly.
Types
Present Durable Power of Attorney: Immediate transfer of power to the attorney in fact. Springing or Future Durable Power of Attorney: Comes into effect upon subsequent disability as determined by a doctor.
Who can establish a Power of Attorney?
Any individual over the age of majority and legally competent can establish a Power of Attorney.
Who may act as an agent under a POA?
Any individual legally competent and over the age of majority. Common choices include spouses, siblings, adult children, trusted friends, or professionals with a reputation for honesty. Multiple agents can be appointed but may lead to delays or confusion.
https://yanafeldmanlaw.com/planning-for-incapacity-faqs/
from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/planning-for-incapacity-faqs/
Taxes are a part of life and if you live in New York and own a taxable estate, you’ll need to know New York’s estate tax rules. Taxes are also a part of death. And frustratingly, if we’re not careful in life, we can pass them on to our loved ones in death through inheritance taxes.
In New York, while there is no inheritance tax on gifts received as part of an inheritance or trust, estate taxes are still applicable. These taxes are calculated based on the total value of the deceased’s estate rather than on what each beneficiary receives individually. Many gifts are eligible for tax exemptions, which can significantly reduce or even eliminate the estate taxes that might have otherwise been due.
Effective estate tax planning is one of the most important plans you can make. Our Brooklyn estate tax planning lawyers at New York Legacy Lawyers can help you manage the intricacies of estate tax to protect yourself and your loved ones from paying more than what they should. Contact us today at (718) 713-8080 to schedule a consultation.
Estate Tax Vs. Inheritance Tax
Estate tax and inheritance tax are two different things. While they are both paid to the IRS, the most significant difference is who pays them. The estate pays estate taxes and covers any taxes that are levied against the assets included in the deceased’s estate. Inheritance tax is paid for by the people who are inheriting an asset. You may be able to set aside an exclusive account that can be used to help defray the cost of the inheritance tax so that your loved ones won’t be responsible for the entire amount.
You can also avoid inheritance tax by using certain types of trusts.
New York Inheritance Tax
In New York, there is no “inheritance tax” that is levied on the property and money received by an heir from an estate. The heir bears the responsibility of paying inheritance taxes. However, it’s important to note that if a New York resident owns property in another state, their heirs may be subject to that state’s inheritance tax unless proactive measures are taken to avoid it.
While the majority of a New York resident’s property is typically situated within the state, it is not uncommon for them to possess vacation homes or investment properties in states where inheritance taxes are enforced.
New York Legacy Lawyers can be your reliable partner for out-of-state inheritance tax concerns. Our skilled New York estate planning lawyers can guide you in creating thorough estate plans that effectively reduce the impact of inheritance taxes. Trust our dedicated professionals to handle your estate tax concerns with the highest level of professionalism. Contact us today to find tailored solutions that cater to your specific needs.
How Much Can You Inherit Without Paying Taxes in New York?
Understanding the difference between inheritance tax and estate tax in New York is crucial when determining what you might owe after receiving an inheritance. Fortunately for beneficiaries, New York does not impose an inheritance tax, meaning you don’t pay taxes simply because you inherit assets.
However, New York does enforce an estate tax. This tax is not paid by the inheritor but by the estate of the deceased before the assets are distributed. For the year 2024, the estate tax exemption in New York is set at $6.94 million, an increase from the $6.58 million exemption in 2023. This means that if the total value of the estate at the time of death exceeds $6.94 million, the estate must file a New York estate tax return and potentially pay estate taxes on the amount over this threshold.
It’s important to note that this tax exemption applies to the estate as a whole rather than to individual beneficiaries. Therefore, as an inheritor, you wouldn’t need to pay any taxes unless the entire value of the estate surpasses the $6.94 million mark. Beneficiaries of estates valued below this threshold are exempt from New York estate taxes.
If you are managing or expecting to inherit an estate near or above this exemption threshold, consulting a Brooklyn estate tax planning lawyer can be beneficial to understand the specifics of New York’s estate tax laws effectively. To arrange a consultation, reach out to New York Legacy Lawyers today.
Trust Options Available in New York
When undertaking estate planning, one may encounter multiple legal documents to transfer their estate to beneficiaries. Alongside creating a last will and testament, establishing a trust can offer asset protection and secure asset distribution according to the individual’s preferences. As each type of trust carries its own set of benefits and drawbacks, consulting an estate planning attorney is recommended to assess the available options thoroughly. The following are trusts that can be established in New York:
Irrevocable Life Insurance Trust. An option to prevent your life insurance policy from being included in your estate. An irrevocable trust means that you will have to give up any ownership rights, and you will not be able to borrow money against the trust or modify the beneficiaries. When you pass away, the benefits from the policy are paid to your beneficiaries as tax-free income. This can be useful for your loved ones who may need extra money or can help pay for any remaining estate-related expenses.
Charitable Remainder Trust (CRT). A life income gift trust is the most frequently used charitable trust. You move your assets to the trust while you’re alive, and you or a beneficiary can receive tax-free income from it for the remainder of your life. The remaining funds in the CRT are given to a charity, and you receive a charitable and income tax deduction for a part of the transfer.
Charitable Lead Trust (CLT). A charitable lead trust is a type of trust that enables you to select the charities that will receive the interest from the assets held in the trust for a predetermined length of time. After the specific period, the remaining amount in the trust transfers to your beneficiaries or family members.
Special Needs Trust. A special needs trust is a trust designed to supply financial assistance to a loved one with a disability for the duration of their lifetime. The assets from the trust can be used to supplement any benefits the individual may receive from government programs like Social Security, Medicare, or others.
Dynasty Trusts. This trust allows the tax-free transfer of a large sum of money to your beneficiaries who are at least two generations younger than you.
Qualified Personal Residence Trusts. Using these trusts can exclude the value of your personal home from your estate. This kind of trust is frequently utilized in locations with thriving real estate markets or areas where properties are expected to increase in value over time.
Qualified Terminable Interest Property Trust. Assigns assets to specific family members if your family includes stepchildren, remarriage(s), or children from a prior marriage. The trust will give your surviving spouse an income after you pass away. Once your spouse passes away, only the beneficiaries you designate (such as your children from a previous marriage) will receive the remaining trust assets.
Types of Trusts Available in New York
Key Features
Irrevocable Life Insurance Trust
Prevents inclusion of life insurance policy in the estate. Provides tax-free income to beneficiaries upon policyholder’s death.
Charitable Remainder Trust (CRT)
Transfers assets to trust while grantor is alive. Offers tax-free income for life to grantor or beneficiary. Donates remaining funds to charity, resulting in tax deductions.
Charitable Lead Trust (CLT)
Allows selection of charities to receive trust’s interest for a specified period. Transfers remaining amount to beneficiaries or family members.
Special Needs Trust
Provides financial assistance to individuals with disabilities. Supplements government benefits like Social Security or Medicare.
Dynasty Trusts
Enables tax-free transfer of a significant sum to beneficiaries two generations younger than the grantor.
Qualified Personal Residence Trusts
Excludes personal home value from the estate. Often used in thriving real estate markets or areas with expected property value appreciation.
Qualified Terminable Interest Property Trust
Allocates assets to specific family members in complex family situations. Provides income to surviving spouse and remaining assets to designated beneficiaries (e.g., children from a previous marriage).
How is Inheritance Tax Calculated?
Inheritance taxes vary significantly from state to state, with rates ranging from 1% to 20%. The tax obligation can also differ within a state depending on the size of the inheritance. For example, if a state exempts the first $2 million of an inheritance and you are bequeathed $10 million, taxes would only apply to the $8 million over the exempt amount.
It’s important to consult with the administrator of the will or an estate law attorney to fully understand the applicable tax rates and the process for filling out inheritance tax forms in your state. As mentioned, in New York, there is no inheritance tax imposed. This means that while you need to be aware of these regulations if you inherit property in other states, any assets received from an estate within New York are not subject to state inheritance taxes.
Inheritance Tax Exemptions
Not all inheritances are taxable. States that have an inheritance tax allow for a certain amount of money to be received without having to pay an additional tax. Several states offer tax-exempt status to the deceased person’s spouse. Children may also qualify for this exemption. There are instances, however, in which the amount received is large enough to put the inheritance into a taxable category. The main rule of thumb is that family members usually bear some degree of tax-exempt status. The beneficiaries who have no family connection to the deceased can expect to pay a much higher inheritance tax.
As a person who is planning their estate, if you want to prevent your beneficiaries from paying any inheritance tax, you may want to look into placing your assets into trusts. This action allows you to leave whatever item or amount of money you want to any person, family or not, and possibly reduce the amount of inheritance tax they are required to pay once they receive their gifts
It is important to note, however, that when inheriting assets located in New York, there is no state-level inheritance tax. This means that residents of New York do not need to worry about state inheritance taxes when planning their estates or receiving an inheritance, regardless of the relationship to the deceased. This exemption allows for simpler estate planning and potential cost savings for New Yorkers, although considerations for property held in other states where inheritance taxes exist should still be made.
Ask New York Legacy Lawyers!
Understanding inheritance tax and its implications can be complex, especially without a solid grasp of your state’s tax laws. When navigating estate laws, having a trusted attorney to provide reliable answers is crucial. At New York Legacy Lawyers, our Brooklyn estate tax planning lawyers are equipped with the knowledge necessary to clarify your questions and ensure you have a comprehensive understanding of how your will functions and the potential inheritance tax implications for your heirs.
It’s important to highlight that in New York, there is no state-level inheritance tax. However, if you have property in other states, it’s essential to consider the inheritance laws applicable there. Our team can assist you in drafting your will and creating trusts that help minimize the tax burden on your beneficiaries, ensuring they don’t have to pay excessive taxes on the gifts they receive.
Contact us at (718) 713-8080 to explore effective estate planning strategies tailored to your needs.
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from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/how-does-inheritance-tax-work/
When it comes to estate planning, most people think it is about what happens to our stuff when we get older. Few people understand that it is also about what happens to ourselves while we are still young.
As soon as we turn 18, we are considered legally responsible for our own decisions in terms of finances and health. This means that parents of young adults lose their legal authority over their child and are no longer able to access their health or education records or assist in managing their affairs. For this reason, it is critical to hire an estate planning attorney. They can help you handle the complex legal issues involved in estate planning and ensure that you have all the necessary documents in place, including advanced directives.
Having a plan in place with the help of a skilled New York estate planning lawyer can alleviate stress and confusion for both the young adult and their loved ones. Don’t wait to secure your future; contact New York Legacy Lawyers at (718) 713-8080 to schedule a consultation and start planning with confidence.
Why Do Young Adults Need Advanced Directives?
Advanced directives are essential legal documents that young adults should consider to ensure that someone they trust can make important decisions on their behalf in the event of sudden incapacitation or unforeseen circumstances. Having these directives allows them to:
Designate a Trusted Person: Young adults can appoint a trusted individual, typically a parent or close relative, to legally access their medical and educational records. This person can manage the health and financial decisions if the young adult becomes unable to do so due to unexpected events or incapacity.
Specify Treatment Preferences: Advanced directives provide clear instructions to healthcare providers and family members about the young adult’s treatment choices, including preferences for medical care, end-of-life decisions, and financial matters.
Ensure Wishes are Respected: By having advanced directives in place, young adults can ensure that their preferences are respected, even if they are unable to communicate them. This helps avoid potential conflicts among family members and provides peace of mind, knowing that their wishes will be followed.
Prevent Delays in Care: Without advanced directives, there may be delays in receiving necessary medical care, as healthcare providers might need to wait for legal permissions. Having these directives in place ensures prompt and appropriate medical interventions.
While young adults may not typically consider the necessity of such documents, the reality is that life is unpredictable. Advanced directives serve as a proactive measure for young adults to maintain control over their healthcare and financial decisions, providing clarity and security for themselves and their families in unforeseen circumstances.
What Documents Are Included in Advanced Directives?
There are four documents we include in our Advanced Directives packets:
Power of Attorney: for financial and legal decisions
Health Care Directives: for health care decisions
FERPA authorization: which allows access to education records
HIPPA release form: which allows access to medical records
Let’s take a deeper dive into each one:
Power Of Attorney
Young adults may need powers of attorney to authorize someone they trust to make important financial or legal decisions on their behalf. Parents may encounter situations where their young adult children are unable to manage their affairs due to unexpected events, such as an accident or illness, or when they are traveling or away from home and need someone to act on their behalf.
Powers of attorney can be durable or non-durable and can cover a range of decision-making authority, such as managing bank accounts, paying bills, signing contracts, and making medical decisions.
A power of attorney can help ensure that their financial and legal matters are taken care of according to their wishes, without the need for a court-appointed conservatorship or guardianship. Having a power of attorney in place can also prevent potential disputes among family members or other loved ones and provide peace of mind to both the young adult and their family.
Mental Health Power Of Attorney
In New York, a mental health power of attorney is a legal document that allows an individual (referred to as the “principal”) to appoint a trusted agent to make mental health treatment decisions on their behalf in the event that they become unable to make decisions for themselves. This type of power of attorney is authorized by the Mental Hygiene Law in New York State.
A mental health power of attorney can be particularly important for individuals who have a history of mental health issues and want to ensure that their wishes regarding their mental health treatment are followed. The agent appointed in the power of attorney document can make decisions about the principal’s mental health treatment, including consent to or refusal of treatment, and decisions about hospitalization, medication, and therapy.
It’s important to note that a mental health power of attorney only applies to mental health, for general Medical Care you need the document up next.
Type of Power of Attorney
Description
General Power of Attorney
Authorizes someone (agent) to make financial and legal decisions on behalf of the individual (principal). Can cover managing bank accounts, paying bills, signing contracts, and making medical decisions. Can be durable (remains valid even if the principal becomes incapacitated) or non-durable.
Mental Health Power of Attorney
Specific to mental health treatment decisions. Allows the appointment of an agent to make mental health treatment decisions on behalf of the principal if they become unable to decide for themselves. Covers consent or refusal of treatment, hospitalization, medication, and therapy. Authorized by Mental Hygiene Law in New York State.
Health Care Directives & HIPAA Release
Health Care Directives (also known as a durable power of attorney for health care) provide a set of instructions for family and medical professionals to follow in the event of a medical emergency. A healthcare proxy should be familiar with their values and wishes, and will help plan for situations that cannot be foreseen, such as a serious car accident or stroke.
FERPA Release
As a general rule, it is a good idea for college students to sign a FERPA release, as it allows their parents or legal guardians to access their academic records and other educational information. The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student educational records, but it also allows for the release of those records to parents or legal guardians of dependent students under certain circumstances.
By signing a FERPA release, a college student can authorize their parents or legal guardians to access their academic records, including grades, transcripts, and financial aid information. This can be helpful for parents who want to stay informed about their child’s academic progress and provide support when necessary.
Now that we have talked about what these documents do and why they are important, let’s discuss how to set them up!
Because all 18-year-olds are considered legal adults, the decision to sign these Advance Directives should be made in collaboration with their parents or legal guardians and an estate planning attorney. While you may obtain some documents on your own such as the HIPPA release, the Financial Power of Attorney in particular is a powerful document that should be properly prepared by an attorney. This ensures that the documents will work as intended and your attorney can also provide counsel on how to use them correctly. Creating advance directives is an important part of planning for the future, if you are ready to get started make sure you contact us today.
Estate Planning For Young Professionals
Many young professionals neglect estate planning, since they have few assets, are single, and in good health. However, estate planning is just as necessary for a young professional as it is for older, rich, and married individuals.
One of the critical aspects of estate planning is creating a power of attorney. This document authorizes someone to act on your behalf in financial and medical situations if you become incapacitated. With the power of attorney, should the unexpected happen, you can avoid guardianship, which can be expensive and time-consuming.
Another important estate planning tool is an advanced directive for healthcare. If you have set up an advanced directive, you will appoint a healthcare proxy to make medical decisions for you should you be unable to make them yourself. This document also enables you to specify your preferences for end-of-life care and organ donation, which can alleviate the burden on your family.
Creating a will or trust is also essential in estate planning. Without a plan, the law determines the distribution of your assets. Having a will allows you to decide on the allocation of your assets, which also involves designating a legal guardian for your underage children. In addition, a trust can help you avoid the probate procedure and make certain that your assets are distributed according to your preferences.
If you’re a young professional looking to secure your future and protect your assets, consider working with a skilled New York estate planning lawyer. At New York Legacy Lawyers, our team of experienced estate planning attorneys may be able to help you create a comprehensive plan that addresses your unique needs and goals. Contact us at (718) 713-8080 to learn more about how we can help.
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from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/estate-planning-for-young-adults/
For most of us, planning for what happens to our possessions after we leave this earth is not a top priority. This is evident from the fact that 6 in 10 American adults haven’t created a will or living trust. This oversight is frustrating because even a small amount of planning regarding our assets can save our heirs a great deal of stress, effort, and money.
Here’s what we’re saying: a will is critically important for the loved ones we will all leave behind. If we all knew a little bit more about what to expect and how to approach end-of-life planning, the number of Americans planning ahead would likely exceed the current 40%.
To help you, we’ve outlined 10 quick facts to help you better understand how wills work. At New York Legacy Lawyers, our New York estate planning lawyers are available to answer your questions and assist you in starting your will and estate plan. To learn more about how we can help, call us today at (718) 713-8080 to schedule a consultation.
1. How Do Wills Work?
A will, also known as a last will and testament, is a legal document that details how you wish your assets to be distributed upon your death. It ensures that your property goes to the individuals or organizations you designate. By clearly expressing your intentions, a will provides a guide for the executor—an individual or institution appointed to manage the estate—to follow, thereby minimizing confusion and conflict among beneficiaries. This document can cover a wide range of assets, including real estate, personal property, financial accounts, and even digital assets. Additionally, a will can name guardians for minor children, specify funeral arrangements, and set up trusts if necessary.
The primary benefit of having a will is that it significantly reduces the potential for disputes among heirs, as it eliminates uncertainty about your wishes. Without a will, state intestacy laws determine asset distribution, which might not reflect your wishes and could lead to lengthy legal proceedings. By proactively addressing these issues, a will helps streamline the probate process, where the court validates the will and oversees the distribution of the estate. This not only provides clarity and peace of mind for your loved ones but also can save time and reduce legal costs, ensuring a smoother transition during a difficult period.
New York estate planning attorney
2. What Really Happens If I Don’t Leave a Will?
If you don’t have a will, that’s when a series of “if/then” property laws will govern how your family will receive your belongings. For example, your property will be divided based on whether or not you have a spouse, children, parents, siblings, and more.
NYCcourts.gov does an excellent job of explaining this further.
3. What Are the Requirements for Creating a Will?
For a will to be legal in New York the following are basic requirements that should be met:
The testator (the person creating a will) must be at least 18 years old and of sound mind.
The will must be signed by the testator (you) or someone with legal authority to sign on a testator’s behalf
The will must be signed in the presence of two witnesses, and it must be written.
4. Do I Have to Leave My Estate to a Person?
If you’d like, you can leave your estate to a charity, school, or church instead of an actual person.
5. Do I Leave Instructions for My Burial in the Will?
You can technically leave instructions for your funeral in your will, but it’s best to express your funeral wishes to your loved ones verbally or in another document.
6. Does a Will Have to Be Notarized?
In New York, wills don’t have to be notarized to be legal.
7. Can I Void a Will Anytime?
You can revoke a will at any time by destroying it. Burning it or shredding it will suffice to demonstrate intent to destroy it. Alternatively, you may create a codicil. Regardless of your options above, it’s best to discuss your options for voiding a will with an experienced estate planning attorney.
8. What’s a Codicil?
A codicil is an amendment or change you make to an existing will.
9. Can I Create a Will If I’m Unable to Sign My Name?
If you’re unable to sign your name but have been legally signing with an “X” that will count as a signature. Or if you have given legal permission for someone else to sign your name, that person can sign your name on a will in the presence of your witnesses.
10. What Classifies as Being of Sound Mind?
If you can understand what you own and who you’d like to leave it to, then you’re likely to have a sound mind.
Will or Trust: Which Is Right for You?
Wills and trusts are both useful for estate planning, but they offer different advantages. The legal documents pertaining to estate planning are subject to state-specific laws and regulations. You may have both a will and a trust, and the information included in each should work together.
In New York, the key difference between a will and a trust lies in the probate court, which is also referred to as the Surrogate’s Court. Probate court is necessary for a will, but not for a trust.
What Is a Will?
A will is a legally binding document that allows you to name an executor to oversee your estate, appoint guardians for your children and caretakers for your pets, determine how your assets are distributed, and express your final wishes and arrangements. However, it is only effective after your death.
A will has some limitations when it comes to distributing assets and is also subject to a probate process, which means it becomes part of public records. Probate can be expensive and time-consuming, which can add to the carrying costs, expenses, and commissions of administering a New York estate. The distribution of assets generally requires a minimum of six months to be completed.
What Is a Trust?
Trusts are more complex than wills and offer various benefits to your estate and beneficiaries. You have various trust options available to you. A significant advantage of trusts is that they avoid probate. To fund your trust, you must transfer legal ownership of your assets to it, and the trust will then become the owner of those assets.
Typically, a trust enables you to administer and allocate your assets throughout your lifetime and beyond. You can place any of your assets inside the trust, which provides greater control over how they are distributed. There are many types of trusts available, more than those available for wills. At New York Legacy Lawyers, our New York estate planning attorneys can assist you and your family in navigating the estate planning process to achieve your asset protection objectives.
Questions About Wills
Answers
How do wills work?
A will directs where your property goes after your passing, reducing legal complexities and disputes.
What really happens if I don’t leave a will?
Without a will, property laws determine how family receives belongings based on relationships.
What are the requirements for creating a will?
The testator must be at least 18 years old and of sound mind. The will must be signed by the testator or someone with legal authority. It must be signed in the presence of two witnesses and be written.
Do I have to leave my estate to a person?
You can leave your estate to a charity, school, or church instead of an actual person.
Do I leave instructions for my burial in the will?
It’s best to express your funeral wishes to your loved ones verbally or in another document.
Does a will have to be notarized?
Wills in New York don’t have to be notarized to be legal.
Can I void a will anytime?
You can revoke a will at any time by destroying it or creating a codicil. Discuss voiding options with an estate planning attorney.
What’s a codicil?
A codicil is an amendment or change you make to an existing will.
Can I create a will if I’m unable to sign my name?
If you’re unable to sign your name, alternatives like an “X” signature or another person signing on your behalf may be used.
What classifies as being of sound mind?
If you can understand what you own and who you’d like to leave it to, you’re likely of sound mind.
Who Keeps the Original Copy of a Will
The disposition of the original will varies based on the preferences of the testator (the person making the will) and the advice of their attorney. Some common practices and considerations for keeping an original will include:
Attorney’s Office: Many people choose to leave the original will with the attorney who drafted it. Attorneys often have secure, fireproof storage meant for important documents, ensuring the will’s safety. It is essential to inform the executor or trusted family members about its location in case of the testator’s passing.
Safe Deposit Box: Some individuals opt to keep their wills in a safe deposit box. However, this choice may have potential complications. Upon death, the safe deposit box could be temporarily sealed, making it difficult for loved ones to access the will promptly. It might require a court order to access the box.
At Home: Storing the will at home in a fireproof and waterproof safe is another option. However, it is crucial to inform trusted individuals of its location to ensure it can be found when needed.
Filing with Surrogate’s Court: Individuals may file their wills with the local surrogate’s court for safekeeping. However, doing so may make the will a matter of public record. It’s essential to consult an attorney to understand the implications and the process involved.
Copies: While the original will is crucial for probate proceedings, having copies is advisable. Ensure that your executor or trusted family members know where the original will is kept. Copies alone are generally insufficient for probate but can provide guidance if there are any questions about the will’s contents.
Review and Update: Wills should be reviewed and updated after significant life events, such as marriage, divorce, birth of a child, death of a beneficiary, or substantial financial changes. Each time the will is updated, make sure the most recent version is securely stored, and older versions are destroyed to prevent confusion.
Regardless of where the will is stored, ensuring that chosen individuals can access it when needed is of utmost importance. For specific guidance related to wills or any other legal topics, it is best to consult with a New York estate planning attorney.
We’re Here When You’re Ready
Setting up a will is a critical step in ensuring that your assets are distributed according to your wishes and that your loved ones are taken care of after you’re gone. Understanding the intricacies of estate planning can be daunting, but you don’t have to do it alone. A knowledgeable New York estate planning lawyer can provide you with the guidance and skill you need to create a comprehensive and legally sound will.
At New York Legacy Lawyers, our experienced New York estate planning attorneys are dedicated to making the process of setting up your will as smooth and straightforward as possible. We can provide personalized advice tailored to your unique circumstances and help ensure that your estate is handled exactly as you wish.
Don’t leave your future to chance. Contact us today at (718) 713-8080 to schedule a consultation and take the first step towards peace of mind for you and your loved ones.
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from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/10-frequently-asked-questions-about-setting-up-a-will/
