Articles Posted in Estate Planning

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The New York Probate Lawyer Blog has discussed in numerous posts the benefits of estate planning and preparing planning documents.   These papers include a Last Will and Testament.   When preparing a Will the creator should express his intentions to his New York estate lawyer so that the document reflects his desires. There are many types of provisions that can be found in a Will.   Clauses that deal with the disposition of assets are among the most important.   The Will language should also unambiguously identify the persons who are to receive estate assets.

The names of beneficiaries should be correct both in spelling and an identification of relationship to the testator such as “my wife” or “my cousin”.    Any mistakes regarding even this simple statement can lead to estate litigation regarding the testator’s intended meaning and possibly even a contested Will. Continue reading →

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New York Estate Lawyers are familiar with the need for individuals to establish an estate plan. A good plan for an estate should include a Last Will, Living Will, Health Care Proxy and Power of Attorney. In some cases, it is also a good idea to create a Living Trust.

The documents that comprise the plan should be reviewed periodically.  A creator of the papers may want to change the beneficiaries or the nominated executors or trustees.  Also, persons who are beneficiaries or fiduciaries may become ill or die and thus their selection in the papers is not appropriate for the plan.   Continue reading →

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A New York Estate Plan can involve the preparation and execution of a number of different papers. To begin with, it is important that an individual consider advance planning documents which include a Durable Power of Attorney, a Living Will and a Health Care Proxy. Advance planning allows a person to select the agents that can make property and personal needs decisions and the documents can provide directions and an expression of intent as to the manner in which a persons affairs are to be handled. Additionally, such papers can help avoid the necessity of obtaining the appointment of an Article 81 Guardian.

Another consideration is the creation of a Living Trust which can provide both lifetime and post-death provisions for property disposition. Finally, a Last Will provides for the manner in which a decedent’s administration estate is to be settled and distributed. A Last Will can contain many different types of bequests and can provide for tax planning and the creation of testamentary trusts including the creation of a Supplemental Needs Trust. Continue reading →

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New York Estate Lawyers are aware of the importance of proper estate planning. Such planning may include the preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. By creating the above papers a person can identify the individuals that they want to inherit their estate and supervise the disposition of their property and personal affairs.

In the course of estate settlement when a person dies without a Last Will or the creation of a Living Trust, the assets owned in his name may be distributed pursuant to the New York intestacy laws contained in Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1. However, where there are non-marital children, such individuals can inherit from their mother but must provide various forms of proof in order to inherit from their father. The New York Probate Lawyer Blog has discussed this issue in earlier posts. EPTL 4-1.2 entitled “Inheritance by non-marital children” states that inheritance from the non-marital father requires proof in various forms such as an order of filiation. Also, paternity can be shown by clear and convincing evidence from genetic marker testing or that the father “openly and notoriously acknowledged the child as his own. . . .” Continue reading →

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A New York Estate Lawyer is familiar with the manner in which a Last Will should be prepared.  Among the fundamental rules when drafting a Will is to make certain that the provisions clearly set forth the manner in which the testator intends to dispose of assets.  The spelling of the names of beneficiaries should be correct along with their relation to the testator, such as a child, brother or friend.   Other provisions  such as those relating to the amount or percentage of a bequest need to be delineated and the terms of any testamentary trust or other instructions should be spelled out to avoid any confusion.

Unfortunately, there are many instances where the language of a Will or a Trust is unclear or ambiguous and estate litigation in the form of a Will construction proceeding is needed to resolve the controversy over the document’s meaning and the proper distribution of estate assets.  In Matter of Romanello, decided by Manhattan Surrogate Nora Anderson on July 17, 2014, the Court was presented with a Last Will that contained a testamentary trust.  Although the Will referred to the trust as a “special need trust fund,” the language of the trust did not comply with Estates, Powers and Trusts Law Section 7-1.12 which is entitled “Supplemental needs trusts established for persons with severe and chronic or persistent disabilities“. Continue reading →

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The preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust involves a full understanding of a person’s property and financial interests.   A New York Estate Planning Lawyer generally obtains all such information from a client when formulating a plan. This process is very important whether a person’s affairs are simple or complex.

The New York Probate Lawyer Blog has had numerous posts discussing the need for a person to understand the nature of the assets owned in order for an estate plan to be properly prepared.   For example, a Last Will typically controls the disposition of assets that are owned by a person in his name alone. However, assets that are owned jointly with another person such as a joint bank account or assets where there is a designated beneficiary such as a life insurance policy, are transferred upon death to the named joint owner or beneficiary and are not controlled by a Last Will. Therefore, it is imperative to know which assets a Last Will can control for a plan to be properly formulated. Continue reading →

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The New York Probate Lawyer Blog has provided many posts regarding the interaction between Article 81 Guardianship proceedings and the settlement of a decedent’s estate. In many cases the disputes and Guardianship litigation that occur while a person is alive are a preview and introduction to the Will contests and estate litigation that occur after death. For example, a recent post in the St. Louis Post-Dispatch by Jennifer S. Mann dated May 12, 2014 entitled Family of Former ‘Wizard of Oz’ Munchkin Battles his Former Caretaker in Court over Estate describes the family’s attempt to recover the life savings of a wizard of oz actor from the actor’s caretaker. The actor had been suffering from Alzheimer’s disease and the family claimed that the caretaker took economic advantage and depleted his estate. In this situation, the family may have needed to have a Guardian appointed while the actor was still alive to protect him from financial abuse.

Another recent post discusses the situation involving Casey Kasem who was famous for playing the “American Top 40” recordings. Jerry Lynn in a post at on May 19, 2014 entitled What we can learn from Casey Kasem’s disappearance, talks about the need for advance planning in such situations, particularly where there is a second marriage. The author talks about the need for advance directives such as a power of attorney and health care proxy, as well as the tension created between a new or second spouse and the children from a prior marriage. Continue reading →

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Estate Planning attorneys are aware that it is important for a person to prepare a Last Will, Living Will, Health Care Proxy and other appropriate papers regarding advance directives and financial planning.  The New York Probate Lawyer Blog has had many posts regarding these matters.  Among the essentials to develop a good plan, a person should spend time reviewing with his advisors the assets that are owned, the identity of the relatives or other persons that are to receive a beneficial interest, and the amounts and manner in which each beneficiary is to receive his interest.  Numerous considerations also include the impact of taxes and the utilization of trusts and other planning methods.

No matter what kind of estate plan is developed, it is essential that the creator’s intent be clearly and explicitly set out in the various documents that are signed.  Estate litigation in the New York Surrogate’s Court invariably results when the wording in a paper, such as a Last Will, is not clear or complete.  An example of the consequences of missing or unclear language in a Will appeared in a decision on March 19, 2014 by Manhattan Surrogate Rita Mella in Will of Isasi-Diaz Continue reading →

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Planning your estate requires the consideration of many factors.  A primary consideration is preparing and executing a Last Will.  New York Estate Lawyers are familiar with the basic requirements for creating a valid Will.  As set forth in Estates, Powers and Trusts Law Section 3-2.1 a Will should be in writing; signed at the end by the testator and there should be at least two attesting witnesses.

The dispositions that appear in a Will typically are in the form of bequests of specific property or certain sums or percentages of assets as well as a catch all or residuary clause for the balance of an estate.

There are many aspects involved in preparing a Will which include mapping out the appropriate dispositions and including clauses that might create testamentary trusts, the appointment of executors and trustees and tax provisions to lessen the burden of estate taxes.  All of these items should be carefully reviewed by the testator with a professional estate planning advisor so that a person’s intentions for the transfer of his estate are properly formulated and effectuated. Continue reading →

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The New York Probate Lawyer Blog has had numerous posts regarding the benefits of estate planning. When a person dies without a Last Will his estate is subject to the laws of intestacy and is distributed to distributees or heirs at law according to statutory priority. When an estate is planned by the drafting and execution of a Last Will, Living Will, Health Care Proxy and Power of Attorney, a person has the opportunity to specifically designate the individuals that he intends to benefit from his estate and who will make decisions regarding his affairs.

In the case of a Will, it is essential to clearly name and identify the intended beneficiaries such as “my son, John Smith” or “my friend, Mary Jones.” It is equally important that a Will and other documents specify contingent beneficiaries and alternative fiduciaries. Since a Will may be signed many years, even decades, before a person dies, these alternative provisions are likely to become the effective directions at the time of death. Therefore, the naming of substitute beneficiaries should not just be an afterthought but must be fully considered and carefully drafted as part of the Will Planning process. Failure to do so may disrupt estate settlement and result in the failure of the testator’s desires being expressed and complied with.

A recent example of the problems caused by not properly providing for contingencies in a Will is demonstrated in the case of Estate of Beatrice Thompson. In a decision dated December 23, 2013 and reported in the New York Law Journal, Richmond County Surrogate Robert Gigante was presented with motions for summary judgment in a construction proceeding. These types of proceedings are commenced when the Court’s assistance is needed to determine the meaning or effect of unclear or ambiguous terms in a Will. It appears that the decedent wife had written a Will that left her entire estate to her husband. However, the husband pre-deceased the decedent and the Will failed to provide for a disposition of the estate in the event of the husband’s death. The Court denied the motions since it found that questions of fact existed regarding the decedent’s disposition of the estate residue in view of the lack of any specific language disposing of the estate property.

Thompson is a good demonstration of the need for New York Will lawyers to assist their clients and provide documents that explicitly identify contingent beneficiaries. It is equally essential that all Trust and Wills have detailed provisions to cover all assets and dispositions. In a recent case the late Charlie’s Angels star, Farrah Fawcett, left all her artwork to her alma mater. As reported by the Associated Press on December 19, 2013 at, at the time of her death an Andy Warhol portrait was located in her condominium. However, Ms. Fawcett’s companion, film star Ryan O’Neal, claimed that the portrait really belonged to him. After a trial a jury decided in O’Neal’s favor. The lesson to be learned is that specifying items in a Will or Trust that may belong to others can avoid long and costly Court battles.

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