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.
In addition to having information regarding asset ownership, it is important to review various agreements and legal obligations that may survive a person’s death and impact estate distribution. A person may be a partner or owner of a business and the transfer of the business interest may be controlled by a Partnership or Shareholder Agreement. Also, a decedent may have other obligations such as loans or judgments and debts that are enforceable against the estate. An area that is very often the source of controversy are agreements or Court proceedings that have occurred between a decedent and a spouse. There may be pre or post nuptial agreements and divorce proceedings that can effect estate distribution. Marital agreements may limit the right of a surviving spouse to share in an estate. Such agreements and divorce decrees may also provide for payments to a spouse that are enforceable against a decedent’s estate. Thus, a full examination of these papers is necessary when creating an estate plan.
A recent case decided by Staten Island Surrogate Robert J. Gigante on May 20, 2014 provides an example of the estate litigation problems that can arise from divorce proceedings. In Matter of Rivera the decedent and her husband had agreed in writing and in Court to separate and to a divorce and released all claims against each other’s estate. In the Court proceeding the divorce Judge instructed the attorneys to file the final divorce Judgment for signature and that if the Judgment was not filed the Court would consider the divorce action to have been abandoned. The Judgment was not filed with the divorce Court as required and the wife then died. The ultimate question faced by the Surrogate was what effect, if any, did the written agreement between the parties, who released their interests against the other’s estates, now have notwithstanding the abandonment of the divorce action. The Surrogate found that factual questions remained as to the validity of the written agreement as it affected the inheritance rights of the surviving spouse. The Court directed the parties to proceed with Surrogate’s Court litigation to finalize the matter.
I work closely with clients to formulate estate plans that reflect their intentions regarding distributing assets to beneficiaries. During the course of this process we review all asset information so that the plan can be effective and beneficiaries may receive their interests without complications.
New York City estate lawyer, Jules Martin Haas has helped many clients over the past 30 years throughout Manhattan and Queens Counties resolve issues relating to estate planning, administration and settlement in New York Probate and Administration proceedings. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.
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