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 of 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 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 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 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 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.

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

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Planning for Incapacity FAQs

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 wife 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 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 health care agent to decide about all health care 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 health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

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.

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from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/planning-for-incapacity-faqs/

Why Estate Planning Should be a Top Priority for You

Considering how our estates should be managed and distributed after our death is an important decision we must make throughout our lives. This involves deciding on the distribution of assets, selecting beneficiaries, and determining if and how you wish to leave a legacy. An estate plan is a tool that consolidates these decisions, incorporating elements such as a will, trusts, living wills, healthcare proxies, powers of attorney, and specific guidelines for managing your affairs after you pass away and, in some cases, during your lifetime.

Estate planning is more than just preparing for the future; it’s about securing peace of mind for you and your loved ones. At New York Legacy Lawyers, our Brooklyn estate planning attorneys understand the complexities and nuances of New York estate law. We can guide you in creating a comprehensive plan that protects your assets, respects your wishes, and provides for your family. Contact us at (718) 713-8080 to schedule a consultation.

The Estate Plan Concept is for Everyone

When the word “estate” gets used some people immediately think of those with a lot of money or palatial property. In reality, every person has an estate.

Your estate is everything that you own. It includes your valued family treasures, the silverware in your dishwasher, and your kids’ toys alike…and everything in between! 

Of course, it’s not just physical possessions either; it can consist of your bank accounts and insurance policies, retirement accounts, and items that you have been saving for your children and grandkids.

An estate plan will help you protect all of these things, and more, giving you the ability to discern what happens to it all when you pass away.

What Are Estate Planning Goals?

Estate planning is a crucial part of managing assets, focusing on the effective distribution and management of your assets according to your wishes upon your passing. It is more than just the distribution of property; it involves making choices that reflect your personal values and objectives. The common goals of estate planning include:

• Providing for Loved Ones: This goal is central to most estate plans as it involves decisions regarding asset inheritance and specific distributions. Without a plan, state laws may dictate these matters, possibly in ways that do not align with your personal wishes.
• Mitigating or Avoiding Probate: Probate can be a costly and lengthy process. Effective estate planning can simplify or bypass this procedure, sparing your heirs the expense and stress of a prolonged legal process. Techniques such as setting up trusts or designating beneficiaries can help to achieve this goal.
• Minimizing Taxes: Estate taxes can considerably reduce the worth they are passed on to your beneficiaries. Strategic estate planning can help reduce or eliminate these taxes, ensuring beneficiaries or chosen charities receive the maximum benefit from your estate.
• Ensuring Orderly Asset Management: Estate planning can prevent asset mismanagement or loss during the transition period after your death. This includes appointing reliable executors or trustees and giving them clear instructions on how to manage and distribute your assets.
• Asset Protection: Your estate plan can also include measures to protect your assets from lawsuits, creditors, and other threats. This might involve setting up certain types of trusts or business structures to protect your assets from potential liabilities.
• Planning for Incapacity: Preparing for the possibility of mental or physical incapacity is an often overlooked but vital part of estate planning. Setting up powers of attorney or advance health care directives ensures that your affairs are handled in accordance with your wishes if you become incapable of managing them yourself.
• Appointing Guardians for Minor Children: If you have young children, it’s essential for your estate plan to include arrangements for their guardianship in the event that you and your spouse pass away unexpectedly.

A Brooklyn estate planning attorney understands the intricacies of achieving your unique estate planning goals. Whether you aim to protect your assets, minimize tax liabilities, or ensure a seamless transfer of wealth to your heirs, New York Legacy Lawyers is committed to guiding you through the entire process. Contact us to initiate your personalized estate planning journey today.

Estate Planning Goals	Description
Providing for Loved Ones	Decisions regarding asset inheritance and specific distributions, ensuring that state laws do not dictate matters contrary to your wishes.
Mitigating or Avoiding Probate	Simplifying or bypassing the costly and lengthy probate process through effective estate planning methods like trusts or beneficiary designations.
Minimizing Taxes	Reducing or eliminating estate taxes to maximize the benefit received by beneficiaries or chosen charities.
Ensuring Orderly Asset Management	Preventing asset mismanagement or loss during the transition after your death by appointing reliable executors or trustees and providing clear instructions for asset management and distribution.
Asset Protection	Implementing measures to safeguard assets from lawsuits, creditors, and other threats, possibly by establishing specific types of trusts or business structures.
Planning for Incapacity	Preparing for potential mental or physical incapacity by setting up powers of attorney or advance health care directives to ensure your affairs align with your wishes if you become incapable of managing them yourself.
Appointing Guardians for Minor Children	Including arrangements for the guardianship of young children in your estate plan to provide for their care if you and your spouse pass away unexpectedly.

An Estate Plan for the Living?

There are situations we’ve all experienced or watched friends go through, when a person becomes physically or mentally unable to care for themselves or even make good choices for themselves. An estate plan becomes the means for someone in that state to still have some control, albeit from decisions they’ve prepared ahead of time.

While you have the capacity to make plans today, you can assign power of attorney to a specific person you trust and even include medical care instructions when or if the need arises. Should you become incapable or incapacitated, but still alive, everything you have is then protected from your actions, or from predatory strangers taking advantage of you while you are unable to understand or say, “No!”

When A Stranger Has Control

This scenario is probably the scariest part of NOT creating a plan. Without the guidance of a will, trust, power of attorney, or other aspects of an estate plan, complete strangers may be left to decide what happens to everything you have. These aren’t shady characters in back-alleys, necessarily. They are usually judges, or doctors, or other professionals. But what they likely will not be is someone who knows you intimately, understands the dynamics of your family, and has the benefit of decades of experience being you and making the decisions on your health and wealth that YOU would make.

Your Estate Plan is Dynamic

Some choose not to develop an estate plan until they are older; this may be because they mistakenly believe that an estate plan cannot be modified once it is completed. The truth is that for an estate plan to work for you, it must be dynamic. Your estate plan should grow with you and change as the circumstances in your life change and evolve. For this reason, it’s essential that as you seek to establish your estate plan, you look for an estate planning attorney you can trust.

Knowing Who You Can Trust

We have been helping people plan and manage their estate plans for over 15 years. We take the time to listen to your concerns, so we can offer the advice and guidance that will best help you develop the right plan for your family and situation. For more information or help with your estate plan, please contact us today. Enlist the help of a New York legacy lawyer to secure your family’s future.

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from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/why-estate-planning-should-be-a-top-priority-for-you/