Articles Posted in Estate Planning

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.

Estate Planning in New York involves a number of items to be reviewed.  Most individuals initially approach planning by determining how their estate is going to be distributed.  Thus, decisions are made as to various bequests that are to be provided in a Last Will.  A simple bequest may be a specific dollar amount, say $5,000, to be given to a named individual.  There may also be a devise of a certain interest in real estate to a designated individual.  Other types of dispositions may include creating a trust for a minor child or a Supplemental Needs Trust for a person under a disability.  Also, there can be residuary dispositions to individuals or even charities whereby the balance of an estate is disposed of.

However, before the dispositions in a Will can be determined it is imperative to determine which assets are to pass under a Will as part of the probate estate.  The New York Probate Lawyer Blog has published many articles concerning estate planning and property ownership.  If an asset passes by operation of law, such as a joint bank account, or the asset has a beneficiary designation such as life insurance, then the asset is not controlled by the Last Will.  As a result, there may not be sufficient assets passing under a Will to satisfy the various bequests and dispositions set forth in the Will terms.

As can be imagined, it is very important to understand how assets are owned so a determination can be made as to how they are to be disposed of at death.  This issue was recently shown in a recent Manhattan estate case decided by New York Surrogate Rita Mella on May 23, 2019, entitled in Matter of Estate of Watson.  This case involved a cooperative apartment owned by two individuals, Watson and Vicic, life partners.   They died within a year of each other and a dispute arose between their estates as to the ownership of the cooperative and entitlement to the net sales proceeds.  Watson died intestate without a Will and Vicic died testate with a Will.

Planning an Estate in New York involves many considerations.  At the outset of the process, particular care must be taken to understand the nature of the assets to be covered by the estate plan.  Assets that are owned in an individual’s name alone would be subject to the terms of a Last Will.  Such assets could also be transferred into a Grantor or Living Trust.  On the other hand, assets that are owned jointly or which have designated beneficiaries would pass automatically on death to the survivor or beneficiary.  Thus, these items may not be controlled by a Will or Trust.   The New York Probate Lawyer Blog has discussed the importance of identifying ownership rights in property in numerous articles.

Another critical consideration in any type of plan is the selection of fiduciaries to manage and administer the fund that comprises an estate or trust.

Most often, the selection of an Executor or Trustee is an easy decision.  A close family member such as a spouse or child is typically the first person to be designated.  However, there are always considerations as to whether such persons have the appropriate qualifications to serve in such capacity.  There may be health or medical issues that might interfere with a person’s ability to act as a fiduciary.  Also, issues such as a conflict of interest may arise particularly where the proposed fiduciary may have some direct or indirect interest in how the estate or trust is administered or invested.

Estate planning in New York can be provided through a number of different documents.  First and foremost, a Last Will and Testament sets forth the various provisions that a testator desires regarding the disposition of his estate.  Another important estate planning device is a Revocable Living Trust.  This type of trust allows a person to place assets in the trust during life and then have them distributed in a certain manner upon death.  The essential element of such a trust is that it is revocable and the creator can modify it or revoke it.

Looking at the various estate planning tools, the overriding element is that a person who creates these documents is able to direct the disposition of assets after death.  Thus, a person’s desires and intentions can be memorialized and carried out by his fiduciaries such as Executors and Trustees.

Since these documents reflect a person’s intentions, it is important that the person creating them make his desires clearly known.  Estate lawyers assist their clients so that there is no ambiguity regarding the names of beneficiaries and the assets or interests in the estate that are to be distributed.  The New York Probate Lawyer Blog has published many articles regarding Wills and planning an estate.  When issues arise regarding the validity or meaning of a Will, estate litigation in the Surrogate’s Court can arise.

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