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Articles Posted in Estate Planning

shutterstock_96626983-300x300We know that when a person engages in the process of creating an estate plan, it is important to review all assets that may be part of the disposition framework.  Assets that are owned in a person’s name are typically subject to the provisions of a Will.  The testator creates the planning for the estate by molding intentions around such assets and other property like joint accounts which may pass directly to named beneficiaries.

Similarly, after a person dies, the estate fiduciary, whether an executor or administrator, investigates the ownership of the decedent’s property and collects the estate assets and pays the estate expenses and obligations.  The New York Probate Lawyer Blog contains many informative articles regarding estate settlement.

During the course of administering an estate, the fiduciary must also ascertain whether the decedent was subject to any obligations under various types of lifetime agreements.  These obligations may continue after the decedent’s death and constitute claims against the estate or otherwise affect the distribution of the estate property.  A few examples of such documents and their potential impact will highlight the necessity for a full review during the planning process and post-death settlement of the estate.

20200522-Estate-Planning-300x200Like most things in life, estate planning in New York comes in all different shapes and sizes.  Each person has their own unique situation regarding assets and desires concerning advance directives and post-death distributions.

When reference is made to a so-called non-traditional family, the reality is that in today’s world, nothing is really non-traditional.  However, the reference is important for at least calling attention to situations that require extra care and scrutiny to fulfill estate planning goals.

In a traditional sense, a person will plan for a wife and/or children who are persons that are considered to be next of kin.  Thus, even if there was no Will or other planning documents, such persons would inherit or have other priority rights as primary heirs.  However, when the intention is to benefit others such as unmarried domestic partners or friends, the lack of a properly prepared Will, Health Care Proxy or Power of Attorney can lead to unintended results.  This is due to the fact that the unrelated friend or individual would generally have no statutory priority rights to make lifetime decisions or receive a post-death inheritance.

shutterstock_571088005-300x200Many of the issues concerning estate planning, including the preparation of Last Wills, Living Wills, Health Care Proxies and Powers of Attorney involve the personal intentions of the creator of the document. For example, a Will should reflect the manner in which the testator desires or intends his assets to be disposed of at the time of death. Likewise, the identification of agents and the delineation of powers and directives in a Power of Attorney or Health Care Proxy is meant to show the principal’s desires concerning his property management and personal needs in certain situations that may occur.

However, the provisions in these documents, on their face, capture a person’s apparent intentions at the moment in time when the document is created. The enduring nature of the document, unless revoked or modified, effectuates such intentions years or perhaps decades after they were originally formed. An underlying question may be whether such recorded directives actually reflect what a person wants to happen at the time when the controlling document (i.e., a Will) becomes effective or put into use. If intentions have changed, the document is not a true representation of a person’s wishes.

A recent article written by Solangel Maldonado in Trusts and Estates dated April 27, 2020 entitled “End of Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law,” provides a review of an article written by Jane B. Baron that is to be published in 87 Tenn. L. Rev. entitled “Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making.” The essence of the above articles is a discussion of issues regarding whether a person’s intentions are, in reality, fluid and may change over time, thus, creating a possible need to seek alternative ways of discerning and giving effect to someone’s intentions at the time they are to be effectuated outside of a formal writing.

As a result of the COVID-19 crisis, people throughout the United States and other countries are exceedingly concerned about their personal and financial welfare.  Among other matters, consideration has been focused on protecting one’s assets, as well as insuring that the assets are properly situated to be passed on to others in the event of a person’s demise.

As a New York estate attorney, I have witnessed this heightened sense of concern over the past decades in connection with the World Trade Center bombings, Hurricane Sandy and other emotionally charged events.  While the initial impulse is to rush to prepare a Last Will and Testament and Advance Directives such as a Power of Attorney, Living Will and Healthcare Proxy, it is important to take the time and proper forethought before rushing to assemble and sign what are significant legal documents.

I have just read a post on CNBC.com by Bryan Borzykowski dated March 25, 2020 entitled “Americans rush to make online wills in the face of the coronavirus epidemic” . The article notes that over the past couple of weeks, companies that produce online estate planning documents such as Last Wills have seen as much as a “143% week-over-week increase” in these services.  While the article notes that the use of such online services has grown over time and can be less expensive than retaining an attorney,  the article points out that problems may arise as to the validity and effectiveness of papers that are created without proper legal guidance.

I have published the New York Probate Lawyer Blog for many years with the goal of providing the internet community with New York Estate Planning, Probate, Surrogate’s Court and Guardianship information.  My blog, along with my website, contains hundreds of pages of helpful data obtained over my 40 years of representing clients in these areas of the law.

The COVID-19 pandemic presents a brand-new experience for me and for my clients and the internet community.  However, despite being temporarily unable to physically go into my midtown Manhattan office, I am ready, willing and able, as always, to provide free consultations and formal representation to assist with matters that are very personal and important to clients and the community.  Do not hesitate to call or email me.

Over the years I have helped countless individuals and families prepare their estate plans, probate a loved one’s Last Will, obtain an Administrator for an intestate estate, establish kinship, contest a Will and obtain a Guardian for an incapacitated person.

shutterstock_199873709-300x200New Yorkers, as well as people throughout the world, are dealing with the health and financial effects of the COVID-19 pandemic. As in many past emergency and life-changing situations, thoughts are focused on a person’s future well-being. In particular, having practiced in the New York trusts and estates and estate planning area for 40 years, I have encountered similar environments created by events such as 9/11 and Hurricane Sandy.

This article is meant to provide some reassurance and guidance going forward. As I have talked about in many posts in the New York Probate Lawyer Blog, preparing an estate plan is important. Such a plan, which should include advance directives, provides a documentary guide for the disposition of assets upon death and for life-time, health care and financial management. These documents include a Last Will and Testament, Living Will, Health Care Proxy, Living Trust and Power of Attorney.

If such a plan has not been instituted, the time to consider and implement these papers can take place going forward. If there is an emergency situation call my office now and we can attempt to assist.

shutterstock_94407685-300x200Planning an estate in New York is very important. To begin with, if a person dies intestate (without a Last Will), the estate laws in Estates, Powers and Trusts law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate,” determine the heirs that receive the estate assets. Thus, a decedent’s intentions and desires may not be carried out.

Even when a Will is created there may be issues regarding its validity or interpretation. The Surrogate’s Courts are always dealing with estate litigation concerning Will contests. These cases may involve undue influence, lack of due execution and lack of testamentary capacity. The New York Probate Lawyer Blog contains many posts regarding contested estates and estate planning.

When a Will is created, one of the most fundamental considerations is the clear identification of the beneficiaries and the share of the estate they are to receive. Beneficial interests under a Will can be outright or in trust. Also, a designation may be in a specific amount, or a specific item, or in a share or percentage.

Planning a New York estate is an ongoing process. There are always various matters to be considered. Many aspects in a person’s life change over time. The nature and value of assets may fluctuate. Also, the identity of the beneficiaries can vary. There can be new potential beneficiaries such as a new spouse, or children or grandchildren; or a person’s intentions regarding naming fiduciaries may require amending old estate planning papers. Whatever the reason, the start of a New Year is as good a time as any to think about and implement necessary changes.

Each individual has a plan that is unique to his own situation. Documents that should be considered include a Last Will and Testament, Living Will, Health Care Proxy, Power of Attorney and Living Trust.

A recent article written by Jamie P. Hopkins, Esq., appearing at Kiplinger.com on December 3, 2019 entitled “10 Common Estate Planning Mistakes (and How to Avoid Them)”, provides a good summary of areas that should be considered. The first area covered is entitled “Not having a real plan in place.” This topic is particularly important because without any plan, a person cannot control the disposition of his estate. When a person dies without a Will, Estates, Powers and Trusts Law Section 4-1.1 directs how the intestate estate is to be paid out. It is much better to have estate planning papers specifically state which beneficiaries are to receive assets than to leave the decision to New York estate law. The New York Probate Lawyer Blog has posted many articles regarding estate administration and Wills.

Estate planning in New York is an important consideration for all individuals. When a person dies, assets are disposed of according to the laws in New York. If property passes upon death by operation of law then named beneficiaries or joint owners become the owners. Where assets are held in the sole name of the decedent with no beneficiary and there is no Last Will and Testament, the intestate estate is distributable to a decedent’s next of kin. However, the distribution of these same assets owned solely with no beneficiary can be controlled by the terms of a Will. The New York Probate Lawyer Blog has discussed estate planning in many articles.

In the case of a small business owner, particular care and examination must be made as to the consequences of the death of the owner.

To begin with the business owner must assess the nature of the business assets. Is the ownership interest in the form of stock or shares held in a corporation or a membership interest in a limited liability corporation? Perhaps the owner is a partner in a partnership or possibly, there is no actual business entity.

Estate Planning in New York can include the creation of a number of different papers such as a Last Will and Testament and Living Trust.  Also, a person may prepare a Durable Power of Attorney, Living Will and a Health Care Proxy.

At the outset of the drafting of these papers, it is important for the creator to fully ascertain the nature of his assets and the manner in which title to them is held.  Also, the creator should carefully consider his intentions so that decisions can be made regarding the dispositions to be contained in the documents.   The New York Probate Lawyer Blog has discussed these matters in earlier postings.

The creator’s goal is to clearly and explicitly set forth his intentions and desires regarding his assets and his beneficiaries.  A Will or Trust may contain specific gifts of a designated amount of money.  There may be dispositions that provide for a beneficiary to receive a certain percentage of an estate or fund.  Percentages are a good way to dispose of assets since it may be difficult to determine a person’s exact monetary estate at death which may not occur for many years after the estate planning papers are prepared.

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