Articles Posted in Estate Planning

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The rights of a surviving spouse to inherit from a decedent have been referred to in numerous articles in the New York Probate Lawyer Blog. When a person dies without a Last Will, a surviving spouse is provided by Estates, Powers and Trusts Law (EPTL) Section 4-1.1 with at least a fifty percent (50%) share of the estate. When a decedent leaves a Last Will, the general rule is that a surviving spouse cannot be entirely disinherited. EPTL 5-1.1-A entitled “Right of Election of Surviving Spouse” provides that a spouse is to obtain a share of assets equal to approximately one-third of a decedent’s net estate. Thus, if a spouse is omitted from a Will or disinherited in whole or part, the spouse can elect to receive estate assets equal at least to the statutorily required minimum.

It should be noted that inheritance by a spouse is given this protection while other family members do not receive these rights. Even children can be entirely disinherited. Also, the estate tax laws recognize the importance of spousal transfers. The Federal and New York estate tax rules allow a 100% marital deduction for all assets passing from a decedent to a spouse. Continue reading →

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Estate attorneys in New York are familiar with the many statutes and rules regarding the ownership of property.  One of the fundamental aspects involved in estate planning is knowing and understanding the manner in which a testator owns his assets.  As examined in many previous posts in the New York Probate Lawyer Blog, a Last Will typically only controls the disposition of assets that a decedent owns in his name alone.  Property interests that are held in joint tenancy or with a designated beneficiary such as a life insurance policy pass directly to the surviving joint owner or beneficiary upon a person’s death and do not become part of the estate subject to disposition by the terms of the Last Will.

In particular, in the case of real estate that is owned by a husband and wife, New York law creates a special aspect of ownership called a tenancy by the entirety.  This type of ownership essentially provides that when one of the spouses dies, the surviving spouse automatically becomes the sole and absolute owner of the property provided the parties remain married at the time of death. In view of these property rights, lifetime dispositions of one spouse’s interest in the property cannot interfere with or prevent the survivor’s right to become the sole owner upon the other parties death. Continue reading →

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When an individual dies it seems more than apparent that the decedent no longer has the ability to act on his own behalf. Likewise, others cannot interact or engage in actions that affect the deceased person. It is for that reason that the New York estate laws provide for the appointment of an Executor or Administrator who has the legal authority and power to act in the place and stead of the decedent.

The New York Probate Lawyer Blog contains many posts discussing the duties and powers of estate fiduciaries. As explained, an Executor is appointed when a Last Will is admitted to probate. An Administrator is appointed when a person dies intestate. The Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act contain the statutory provisions that allow for the appointment of the fiduciary. Continue reading →

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A New York Estate is subject to potential estate tax under both Federal and State law. Whether an estate is potentially taxable and requires the filing of an Estate Tax Return depends primarily upon the value of a decedent’s gross estate.   In general the gross estate is comprised of all of the assets that a decedent owned at the time of his death including all items passing under a Last Will or by intestacy as well as items transferred by operation of law. These latter items include assets that are owned jointly with others or which have named beneficiaries such as retirement accounts and life insurance. For example, assume that a decedent left a Will and the value of the assets that were part of his probate estate were $1 million. In addition, assume that the decedent had joint assets such as real estate or bank accounts with a value of also $1 million. Thus, the gross estate value appears to be $2 million dollars.
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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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