Understanding the Different Types of Wills

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 once they have passed away. Each will must meet a set standard that is determined by the state in which a person lives. And if poorly crafted, the will may not be useful in a court of law, especially if 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 are 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 will 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 a 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.

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 loses 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 on 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.

Call us today at (718) 713-8080 or contact us here for more information.

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Matters of Trust: What Is a Living Trust and Do You Need One?

Although death is a difficult subject to discuss, it’s also a part of your financial planning obligations.

You must prepare for the inevitable. Part of planning for the future means having a proper estate plan in place. Doing so minimizes financial difficulties for your family in your absence.

78% of young adults 18-36 and 64% of Generation X—aged 37 to 52—do not have wills. Be it lack of financial affluence or miseducation; both peer groups don’t appear to bother.

When it comes to getting your affairs in order, you need a plan for the future. Find out here what a living trust is, how it works, and why you need one.

If you’re considering establishing a living trust, consulting with an experienced attorney is highly recommended. At New York Legacy Lawyers, our team of experienced Brooklyn trust planning lawyers can provide valuable guidance throughout the process, ensuring that your trust is properly structured. Contact us today at (718) 713-8080 to discuss how we can help you establish a solid living trust that reflects your wishes and protects your estate.

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What is a Living Trust and How it Works

A living trust is a legal document created prior to death. This trust acts as an arrangement between you and a trustee.

In your passing, the trustee maintains possession of your property and assets. These assets flow into the trust. The trust goes into effect while you’re alive and maintains its effectiveness in your death.

You may add a provision to stop the trust on a specific date. Until specified, the trustee continues to manage the trust on behalf of you and your named beneficiaries.

There are several types of trusts. Discussed most often are the revocable and irrevocable trusts.

Revocable Living Trusts are the most flexible of the two. With this option, you’re allowed to move assets in and out of the trust as you please. You also have the recourse to revoke the trust at any time.

The Irrevocable Living Trust operates on more permanent motives. Once assets get placed in the trust, you cannot move or take them out again.

Each state has specific rules and regulations on trusts. So be sure to educate yourself on the guidelines before you set one up.

Types of Living Trust	Details
Revocable Living Trust	Assets can be freely moved in and out of the trust. Can be revoked at any time. Offers control, privacy, and helps in avoiding probate. Allows for flexibility in managing assets during your lifetime.
Irrevocable Living Trust	Assets cannot be moved or revoked once placed in the trust. Offers enhanced asset protection, tax implications, and helps in avoiding probate. Provides a more permanent and secure structure for asset management.

Allowable Assets

There are allowable and disallowable assets appropriate for transfer into a trust. And depending on the asset, the state may require you to get a new deed or title issued to the trust’s name.

Some permissible assets include:

• Bank Accounts
• Real Estate
• Jewelry
• Cars & Boats
• Securities
• Stocks and Bonds
• Artwork
• Heirlooms

For accounts like 401K and retirement, it’s impermissible for the trust to own them. But you can, however, list the trust as beneficiary. The same goes for life insurance policies and IRAs.

Who Owns The Property in Trust?

Within the structure of a trust, the trustee is tasked with being the legal custodian of the trust’s assets. Despite many people perceiving a trust as an autonomous unit, traditionally, it’s understood to be an extension of the trustee. As a result, assets are usually registered in the trustee’s name rather than the trust’s. This can lead to complexities when the trustee changes, as banks and taxation authorities often necessitate re-issuing titles for accounts and properties. While there may be reasons to contest the need for such re-titling, as the property is technically owned by the trust, it’s typically less complicated to abide by these requirements.

As a trustee, the individual’s job is to manage the trust’s assets for the beneficiaries’ sake. Unless the trustee is also a beneficiary, they’re not entitled to personally gain from the assets. Beneficiaries, conversely, play a more receptive role, obtaining advantages from the trust in the form of periodic distributions. Ownership of the trust assets will pass over to the beneficiaries once they are bequeathed to the beneficiaries in the form of gifts or as a matter of the distribution. 

To ensure that trustees perform their fiduciary duty in administering the trust responsibly, trustees receive trustees’ commissions as compensation for their service. Nevertheless, beneficiaries are allowed to actively ensure the trust is being managed appropriately, with the option of taking legal action against a neglectful trustee. Moreover, if permitted by the trust document, beneficiaries can exercise specific powers over distributions and have the authority to appoint successor trustees.

Why You Should Consider A Trust

There’s no rule of thumb about who should and shouldn’t have a living trust. You should always take stock and inventory of what you have.

And if you have dependents, decide if you’d like to leave them in a better financial situation.

You can work with an estate planning attorney to help you figure out the best way to manage your assets in life, and death.

Set up an Estate Plan

Don’t leave your future up to fate. Be proactive about your financial plans and set up a living trust.

Arrange your affairs the right way so that you and your loved ones benefit in the end.

Request a consult today for more insight into estate planning and asset protection. Contact us at (718)713-8080 to schedule a consultation.

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Wills, Trusts, & The Estate Planning Process in New York

Estate planning involves the preparation and strategic organization of your assets for their orderly distribution. It involves all your possessions, such as tangible assets, intellectual property, investments, automobiles, business interests, real estate properties, and more.

The role of an estate planning lawyer is crucial in helping you minimize uncertainties related to estate management while maximizing the value retained for your heirs. This includes reducing potential taxes, legal fees, and other expenses that could diminish the estate’s value.

Engaging in proactive estate management, both during your lifetime and after, offers numerous benefits. In this article, we will explore the difference between trusts and wills, which are essential estate planning tools, can provide security and advantages for you and your family, safeguarding the value of your estate. At New York Legacy Lawyers, our team of New York estate planning lawyers may be able to help you navigate this complex process, ensuring the protection of your assets and the fulfillment of your wishes. Contact us today at (718)713-8080 to schedule a consultation.

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Estate Planning Starts with a Last Will & Testament

A Last Will and Testament is perhaps the most well-known part of any estate plan. A will is necessary as it helps in making a decision on which your property goes to when you pass on. In addition to providing for the transfer of assets, you can also us a will to name Guardians for your children. 

As you consider drafting a Will, you will need to think about the Executor.  The Executor will be the person you would like to handle the process of carrying out your will (and working through probate).

If you would like to know more about Wills prior to contacting us, here is a more in-depth discussion on Estate Planning with Wills.

You Can Also Create a Trust

Another way to protect your assets in your estate plan is via a trust.  A trust is a tool you place all your assets into and then become the beneficiary of it.  When you pass away, the trustee (person who has authority to manage your trust) distributes your property per your directions. 

Here’s why trusts are so valuable to your estate planning.  Trust assets do not have to pass through the probate process for the property to be transferred to the people you love.  By skipping probate, you avoid a public court process.  Where a will becomes a public document, open for others to look through, and even fight over, the assets and contents of a trust are more confidential.  A well-crafted trust will likely save your family thousands in probate fees and potential legal costs from infighting. 

Here is a short article breaking down the difference between the types of trusts, including:

• Trusts for Minors
• Special Needs Trusts
• Marital Trusts
• Revocable Living Trusts
• Irrevocable life insurance trusts
• Spendthrift trusts
• And more…

What Assets Cannot be Placed in a Trust?

When establishing a living trust, it is crucial to carefully evaluate which assets are appropriate for inclusion. Not all assets are suitable for transfer into a living trust, as they may have specific legal and financial considerations.

There are certain types of assets that are generally not recommended for placement in a living trust. Here are a few examples:

Retirement accounts: Assets like 401(k), IRA, 403(b), and certain qualified annuities should not be transferred directly into a living trust. Transferring these assets may result in income tax obligations since they require withdrawal. However, you can designate the living trust as a beneficiary to facilitate the smooth transfer of funds upon your passing.

Health savings accounts or medical savings accounts: These accounts are designed for tax-free utilization on eligible medical expenses and cannot be transferred to a living trust. Similar to retirement accounts, you can designate the trust as a primary or secondary beneficiary.

Active financial accounts: Unless you are the trustee with complete control over trust assets, it is generally advisable to keep accounts used for monthly bill payments separate from the trust. This is because individuals may have concerns about potential delays in probate and the inability to quickly distribute these funds to heirs. Instead, you can designate beneficiaries for these accounts using options like payable-on-death (POD).

UGMA/UTMA accounts: If the trustee were to pass away before the minor, a trust might be subjected to probate. In such cases, it is advisable to consider appointing a successor custodian for these accounts.
Vehicles: Generally, everyday vehicles such as cars, boats, trucks, motorcycles, airplanes, mules, or snowmobiles are not typically included in a living trust. These assets often bypass the probate process, and unlike collectible vehicles, they do not appreciate in value. Additionally, some states impose taxes during the retitling of vehicles, and certain states do not permit vehicle owners to name beneficiaries after their demise.

Assets that Cannot be Placed in a Trust	Details
Retirement accounts	Assets like 401(k), IRA, 403(b), and certain annuities should not be transferred directly to a living trust due to potential tax obligations.
Health savings accounts or medical savings accounts	Tax-advantaged accounts designed for medical expenses cannot be placed in a living trust. Designate the trust as a beneficiary instead.
Active financial accounts	Keep monthly bill payment accounts separate from the trust. Use beneficiary designations like payable-on-death (POD) for these accounts.
UGMA/UTMA accounts	Consider appointing a successor custodian for these accounts to avoid probate if the trustee passes away before the minor beneficiary.
Vehicles	Everyday vehicles like cars, boats, and motorcycles are typically excluded from living trusts. They bypass probate and don’t appreciate.

Get Help with a Will, Trust, Or Both!

Wills & Trusts are both essential estate planning tools.  They can get to be quite complex however.  If you are actively looking into planning for your own future, and for the future of your family, then engaging the services of a highly rated and local estate planning law firm is your best bet.

Yana Feldman & Associates, PLLC would love to help you craft the perfect estate plan.  Contact us today to set up your estate planning appointment.

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Top Mistakes in Estate Planning

Estate planning is a crucial process that can have a significant impact on the financial well-being of loved ones. It helps ensure that hard-earned assets are distributed in accordance with personal wishes, while also minimizing tax liabilities. Even for young adults, estate planning can provide peace of mind and ensure that their assets will be distributed as they desire in the event of unexpected illness, accidents, or death. By engaging in this process, individuals can take steps to secure their financial future and address potential risks. While every state has its own unique laws and regulations, navigating the estate planning process in New York can be particularly challenging. 

New York’s complex legal landscape, coupled with its constantly evolving tax laws, can create a minefield of potential mistakes for those seeking to plan their estates. In this guide, we will delve into the top mistakes in estate planning in New York, highlighting the common pitfalls and offering expert advice on how to avoid them. It is critical to consider the assistance of a skilled New York estate planning lawyer to ensure that your plan is tailored to your unique circumstances, while effectively navigating the complexities of New York law. 

At New York Legacy Lawyers, attorney Yana Feldman and our team of skilled estate planning lawyers may be able to help you build a secure future for you and your loved ones. Contact us today at (718) 713-8080 to schedule a consultation.

1. Procrastinating on Estate Planning

Many individuals, including my own friends and family members, often procrastinate on estate planning. However, it’s important to remember that unexpected events, such as illness, accidents, or death, can occur at any time. This is why it’s crucial for everyone over the age of 18 to have basic documents in place, such as a Power of Attorney and Health Care Directives.

For those with assets, it’s essential to consider what would happen in the event of incapacity or death. Who would have control over or inherit these assets? Are there any individuals that you would like to exclude? Estate planning can help answer these questions and ensure that your wishes are carried out. In some cases, basic documents such as advanced directives and beneficiary check-ins may be sufficient. In other cases, a will or trust may be necessary.

It’s also important for older individuals, even those in good health, to consider how they would pay for the costs of long-term care. By engaging in estate planning, individuals can gain peace of mind and ensure that their assets and future care are protected. Therefore, procrastinating in estate planning can have severe consequences, and it’s crucial to address this important aspect of financial planning as soon as possible.

2. Not Exploring Your Estate Planning Options

While a will is vital, there may be other estate planning tools that can be viable for your circumstances. Failing to explore other tools can lead to pitfalls like estate taxes that trusts can help minimize. A will doesn’t address incapacity, but living trusts and durable powers of attorney can. Probate is a pitfall, but trusts can help avoid it. A will doesn’t protect assets from creditors, but irrevocable trusts can. Special needs trusts can support family members with special needs without affecting their eligibility for government benefits. Consulting an estate planning attorney can help create a comprehensive estate plan that suits individual goals and needs.

3. Avoiding Disability And Long-term Care Planning

When it comes to long-term care planning, many individuals overlook the possibility of incapacity due to illness or injury. In such a scenario, a person’s loved ones may become involved in costly and time-consuming court proceedings, with a judge who has never met the person making decisions regarding their future. These decisions may not align with the person’s preferences or values, and a stranger could be appointed as their guardian instead of trusted family members and friends.

To avoid the potential pitfalls of guardianship, it is advisable to appoint an Agent under a Power of Attorney, a Health Care Proxy, and possibly a Trustee to make decisions and manage assets in accordance with the individual’s values and lifestyle. Doing so can help prevent delay, confusion, and undue expense, as well as ensure that the individual’s wishes are carried out. Thus, in the context of long-term care planning, it is essential to consider the possibility of incapacity and take steps to avoid the need for guardianship.

4. Avoiding Discussions with Family and Friends

Many people don’t want to talk about estate planning, because it is talking about illness and death. Many people think it is somehow “jinxing” them or tempting fate by making plans for disability or death.

However, it is important to let the people around you know what your wishes are. Even if you do make plans, if they aren’t what people would expect, it might make sense to let some people know about them so they aren’t disappointed or surprised. It also can help alleviate a lot of stress and worry from children and grandchildren about how they will help their aging parents and grandparents. It is also a great way to share your values and hopes for your loved ones in the future.

5. Not Planning for Your Children’s Futures

As a parent myself, I understand the importance of planning for the future of our children. Some parents may feel that estate planning is not necessary if they have not amassed a significant amount of wealth, but as a parent, I know our children are our greatest wealth. I want to have a say in who would care for them if I weren’t able to do so due to death or disability. Appointing guardians and creating a trust for children can be quite straightforward. Many of my clients fund these trusts with the proceeds of term life insurance, which is very reasonably priced for most people, even if they don’t have a lot of accumulated wealth.

The hardest part of estate planning to protect children is usually choosing who these guardians and trustees will be. One tip: there is usually no perfect choice. Make the best choice you have, know you can always change it in the future, and that it is still better than kids ending up in foster care or with someone you would rather avoid.

6. Forgetting to Coordinate and Review Beneficiaries

Remember, a beneficiary designation trumps a will or a marriage. If you have named a sibling or a parent on a life insurance policy or any other asset, they will inherit it, even if you are now married or have a will that leaves your assets to another person. It is important to make sure that your estate plan aligns your wishes and your estate planning instruments with the beneficiary designations on your accounts. I have seen countless examples where a former girlfriend/boyfriend or sibling/parent inherits instead of a spouse or child, with little recourse.

7. Wrong Choice of Agent/Trustee

Choosing an agent under a Power of Attorney, an Executor or a Trustee is hard! But these decisions need to be made taking into account a number of factors. Of course, family dynamics are important, which is why a frank and open discussion with your estate planning attorney is so important. Financial sophistication may not need to be the most important factor as long as the person is honest, trustworthy, sensible, and can seek out and follow competent advice from trusted professionals.

8. Not Updating/Reviewing Your Plan Regularly

You marry, have children, divorce, and people in your life pass away. You buy and sell real estate, open and close businesses, and change the direction of your career trajectory. Life changes. Laws change. Estate plans can easily become outdated, so it’s essential to review your plan regularly

9. Relying on a DIY Estate Plan

Many estate planning and estate administration attorneys joke that LegalZoom and similar websites create more work for us than they take away. While it is certainly possible to create an estate plan on your own for no or low cost, it can cost your family a LOT more than you choosing to work with a competent estate planning attorney. 

Estate planning attorneys become intimately acquainted with your particular set of circumstances and while many plans are similar, most have some important tweaks to account for what matters to you! Maybe it is avoiding probate, providing for a loved one with special needs, or planning for long-term care. Is estate tax a consideration? Do you have all the right information? Many of the DIY plans don’t ask all the right questions. For example, I’ve seen NY wills name a foreign national who lives abroad as an executor, which simply isn’t allowed in NY.

In short, it is almost always worthwhile to have a conversation with an estate planning attorney about what their suggestions might be and what issues they can identify in your specific situation. You want someone who you feel comfortable talking to, so you can be completely open and candid. You want someone who you feel you can come back to with questions and changes over the years. And of course, you want someone who can appropriately address your particular concerns.

10. Failing To Incorporate Your Digital Assets Into Your Plan

The use of digital assets has become an essential part of our lives, yet many people do not consider including them in their estate planning. Neglecting to include digital assets in estate plans can lead to the loss of valuable information, delays in accessing them, risk of identity theft, and inability to distribute them according to a person’s wishes. To avoid these pitfalls, individuals should create a comprehensive inventory of their digital assets, appoint a trusted executor, specify how the digital assets should be distributed, and ensure that all necessary legal documents are in place to authorize access to online accounts.

If you’re considering estate planning, it’s essential to avoid common mistakes that can have significant legal and financial consequences. At New York Legacy Lawyers, attorney Yana Feldman and our team of skilled estate planning lawyers can help you navigate the complex legal landscape of estate planning in New York and avoid common pitfalls.

We can help you better understand the estate planning process and to assess your unique circumstances. Our attorneys have dedicated their careers and work diligently to help individuals and families plan for their future, protect their assets, and minimize tax liabilities.

Don’t wait until it’s too late. Schedule a consultation with us today by calling (718) 713-8080 or contact us at our website. Our experienced attorneys can help you create a secure future for yourself and your loved ones.

Top Mistakes in Estate Planning	Description	Action
Waiting to plan	Delaying estate planning can result in unexpected events such as accidents, illness, or death.	Have basic estate planning documents in place and consider what would happen if you became incapacitated or passed away.
Avoiding living probate	Not considering who would make decisions for you if you became incapacitated due to illness or an accident.	Appoint an Agent under a Power of Attorney, a Health Care Proxy, and possibly a Trustee to avoid undesirable consequences.
Steering clear of discussions with loved ones	Not wanting to talk about estate planning due to it being related to illness and death.	Share your values and hopes with your loved ones to alleviate stress and worry.
Putting your kids in the hands of child care services	Not considering estate planning because of a lack of wealth.	Appoint guardians and create a trust for children.
Forgetting to change beneficiaries	Not aligning your estate plan with the beneficiary designations on your accounts.	Ensure your estate plan aligns with your wishes and beneficiary designations on your accounts.
Choosing the wrong people	Choosing the wrong person as an agent under a Power of Attorney, Executor, or Trustee.	Consider family dynamics and financial sophistication when choosing.
Failing to review your plan regularly	Not reviewing your estate plan as life and laws change.	Regularly review your plan to keep it updated.
Creating a “do-it-yourself” estate plan	Trying to create an estate plan on your own without considering specific circumstances.	Consult a competent estate planning attorney to address your particular concerns.

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