Articles Posted in Estate Planning

The New York Probate Lawyer Blog has published dozens of articles relating to many different topics such as estate planning, probating a Last Will and Testament, Will contests; objecting to a Last Will; intestate estate administration; kinship proceedings; estate accounting proceedings; proceedings by an executor or administrator to recover estate property from a third-party; selling estate real estate.  This list barely scratches the surface.

One of the primary functions in planning an estate is to avoid issues which may arise and be difficult to solve once a person is deceased.  An estate plan can include documents such as a Last Will, Living Will, Living Trust, Power of Attorney and Health Care Proxy.  Creating these papers may forestall post-death problems.  For example, here are a few areas of concern:

Kinship– After a person dies either a Last Will needs to be probated or an intestate administration proceeding commenced.  In both instances it is absolutely necessary to know the identity and whereabouts of a decedent’s next of kin.  This information is essential for all probate and intestate petitions.  A person’s next of kin is not always easy to determine.  In many cases there are close relatives such as a spouse, children, parents or brothers and sisters.  However, over the more than 40 years of practicing in the trusts and estates areas I have encountered many estates where a decedent’s heirs (called “distributees”) are either not known or only partially known.  For example, a person may prepare a Last Will and leave their estate to a friend or a charity.  As it turns out, the decedent’s next of kin are unknown to his associates or executor or are distant relatives who live in various countries or states and who have had no contact with the decedent for decades.  The need to perform a kinship search or engage in a kinship hearing can be costly and delay the settlement of an estate for many years.  The bottom line is for a person to provide complete kinship information at the time the estate plan is created so that this

Estate planning in New York involves many considerations and decisions.  A full understanding and verification of assets is always a good starting point.  As discussed in many articles in the New York Probate Lawyer Blog, only assets which are owned by a decedent pass under a Last Will and Testament.  In the event a person has assets which are jointly owned with another individual or contain a named beneficiary, these items pass directly to the co-owner or beneficiary by operation of law.  In other words, the assets are not controlled by the terms of a Last Will.

Incidentally, in situations where a person dies intestate without a Last Will, all assets owned in the name of the decedent are distributed according to the statutory designated next of kin.  At least when a Last Will is created, a person can specifically choose the beneficiaries who are intended to receive estate funds.

Choosing beneficiaries is not always easy depending upon an individuals circumstances.  A person preparing an estate plan may want to include or exclude various individuals.  In New York, there is no requirement that children be left an inheritance.  Some or all children can be entirely disinherited.  Of course, in these situations careful planning is needed since a disinherited child may feel that a parent was unduly influenced or lacked testamentary capacity which led to what they believe was unfair treatment.  Many times a Will Contest results due to a close family member not receiving the inheritance they have expected.

 
Estate planning in New York is important. It is the method by which a person can specify the manner by which assets can be distributed upon death or other situations. Documents which are typically associated with estate planning include a Last Will and Testament and a Living or Grantor Trust. Also, papers such as a Power of Attorney, Health Care Proxy and Living Will which are advance directives are usually associated with the estate planning process. The New York Probate Lawyer Blog has published many articles concerning estate planning.

A Will and Trust document typically contains various provisions concerning the disposition of assets and the designation of beneficiaries. The papers also contain designations of fiduciaries such as executors or trustees. Other terms may include fiduciary powers and clauses dealing with the payment of taxes.

In certain situations, a person may be concerned about whether assets should be disposed of by a Will or whether to use a revocable or living trust to avoid probate. There are various considerations on this topic. For example, a trust may be preferred in the event a person’s kinship is unclear and the goal is to avoid a kinship hearing in a Surrogate’s Court probate proceeding. Also, probate may need to be avoided if it is anticipated that there may be a Will Contest in the probate proceeding.

Estate planning in New York is essential for the efficient settlement of a decedent’s estate.  The New York Probate Lawyer Blog has published many articles regarding planning an estate.  The various documents which may be prepared as part of a plan include a Last Will and Testament, Living Will, Health Care Proxy, Power of Attorney and Living Trust.  In short, these papers can be described as follows:

• Last Will and Testament: contains various provisions detailing a testator’s intentions and directions for the disposition of assets which are owned by a person in his name alone.  It is essential to remember that assets which are held jointly with others or have named beneficiaries, such as a life insurance policy, are paid directly to the designated surviving parties and are not controlled by a Will.
• Living Will: has provisions which explain a person’s intention and desire not to be artificially kept alive if their ability to live is intrinsically lost such that they are brain-dead.

The probate of a Last Will and Testament is essentially the procedure by which a Will is validated by the Surrogate’s Court.  The New York trust and estate laws contain many provisions which are intended to protect the sanctity of a Will and insure that the intentions of a decedent are carried out.

First and foremost are the provisions contained in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This statute sets forth the various requirements for the signing of a Will.  There is a requirement that the Will be written, that there be at least two (2) attesting witnesses and that the Will be signed by the testator at the end.

The basic requirements found in the statute ensure that a decedent’s wishes which are expressed in the document are legitimately preserved.  When a person dies it is apparent that he is no longer around to certify and authenticate the dispositions that he set forth in the document.  The New York Probate Lawyer Blog contains numerous articles explaining and discussing the probate process.  New York probate and estate lawyers are familiar with the estate laws.

Estate planning in New York is important for the proper disposition of a person’s assets.  Planning an estate encompasses a broad array of considerations.  The New York Probate Lawyer Blog has published many articles on this topic.  Initially, the preparation of a Last Will and Testament is the central document when creating a plan.  A Will disposes of assets that are owned by a testator at death in his name alone.  Thus, assets which pass automatically to others by operation of law such as joint property or items which have designated beneficiaries such as retirement accounts, life insurance or other pay on death funds, are not generally controlled by the terms of a Will as long as the beneficiary survives a decedent.

In view of various rules regarding property disposition, it is imperative that any estate plan take into account the ownership and title of assets which are intended to be disposed of under a Will.  A recent Manhattan estate case, decided by Manhattan Surrogate Rita Mella on February 23, 2023 entitled Estate of McAulay, demonstrates the issues that may arise when a decedent’s asset ownership conflicts with the provisions of a Will.

In McAulay, the terms of a Will provided for equal distribution of a portion of the decedent’s residuary estate to four (4) individuals.  At the time of death, the decedent owned certain California real estate with one of the beneficiaries as joint tenants.  As a result, the California property passed to the joint owner by operation of law outside of the Will.  An issue was raised as to whether the value of the California real estate should reduce the amount of the share of the residue the beneficiary was to receive.