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Articles Posted in Estate Planning

shutterstock_330039464-300x200Preparing and probating a New York Will is important in order for a testator to effectuate an estate plan.  There are many considerations that an individual needs to consider when planning an estate such as how assets are to be distributed and the identity of the beneficiaries who are to receive dispositions under the Will.  Guidance from an experienced estate lawyer regarding these matters should be sought.

There are many subtle and not generally thought-of issues which may have some impact on a plan and the ultimate probate of a Will.  A few of these matters are discussed in this blog post.  One such issue concerns the proper execution of a Last Will.  Estates, Powers and Trusts Law Section 3-2.1, entitled “Execution and attestation of wills; formal requirements,” provides the basic rules regarding execution.  Among these guidelines is that there must be at least two (2) attesting witnesses.  Nowadays many people prepare a Will from online forms and without the assistance of legal counsel.  An important rule to know is that if an attesting witness receives a disposition in the Will, he may need to forfeit his inheritance unless there are two other witnesses who do not receive a benefit under the Will.  This rule is provided in EPTL 3-3.2 entitled “Competence of attesting witness who is beneficiary; application to nuncupative will.”  The statute provides a number of additional rules and exceptions.  However, in view of the general prohibition, it is always best to have completely disinterested persons act as attesting witnesses so as to avoid any possible problems when it comes time to probate the Will.  The New York Probate Lawyer blog has many articles dealing with probate issues.

Another matter that should be recognized is that sometimes a Will contains what is known as a No Contest Clause or in terrorem clause.  This language in a Will provides that a beneficiary forfeits his disposition if he contests the Will.  Many individuals include this type of provision in a Will in the hope that it would discourage a discontented party from filing a Will Contest due to the prospect of forfeiting their inheritance if they lose the Court case.  The use of a no contest clause is controlled by EPTL 3-3.5 entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon.”  However, the statute provides certain exceptions to the general rule of forfeiture.  For example, if there is probable cause, the condition does not apply if there is a contest based upon forgery or to show that a decedent left a later Will.  Also, a no contest clause does not prevent the initial discovery allowed by Surrogate’s Court Procedure Act Section 1404 which permits the examination of the Will witnesses, the Will draftsperson and the nominated executor and Will proponent.  In view of these and other exceptions to a no contest clause, a testator may want to consider other alternatives to avoid a Will challenge such as setting up asset beneficiary designations or a Living Trust.

shutterstock_571088005-300x200The consideration of estate matters in New York always involves a number of variables.  New York, as well as the country as a whole, is comprised of a diversity of personal relationships controlled by numerous laws that are evolving all of the time.  A recent article written by Sarah O’Brien entitled “If you live with your partner and are unmarried, this is what happens when you die,” which appeared at CNBC.com on February 27, 2020, highlights just one of many problematic areas of personal concern.

In New York, as elsewhere, the formalization of a partnership through marriage creates certain spousal rights that have a direct impact on inheritance.  The New York Probate Lawyer Blog has published numerous posts talking about these matters.  For example, if a person dies intestate without a Last Will, his administration estate is, according to estate laws, (Estates Powers and Trusts Law section 4-1.1), going to be distributed to his next of kin.  An unmarried partner is not included in this class.  As an estate lawyer, I have seen many situations where upon the death of an unmarried partner, the surviving partner cannot share in the estate despite the longevity of the relationship.

Ms. O’Brien’s article discusses these types of issues.  Of course, there are some relatively simple solutions which require some thought and time and effort to complete.  First and foremost, each partner should complete a Last Will which names the other as primary beneficiary and executor.  It is also important to designate alternate beneficiaries and fiduciaries so that the creator’s intentions and desires can be fully carried out.  Living Trusts can also serve the purpose of having a valid document delineating the individuals who are to receive benefits upon death.

20200522-Estate-Planning-300x200Estate planning in New York involves the preparation of different documents.  These include a Last Will and Testament, Living Will, Living Trust, Power of Attorney and Health Care Proxy.  All of these papers have terms and language which should be clear and specific so that the writer’s intentions are precisely spelled out.

In particular, a Will can have numerous provisions that involve descriptions of property being disposed of and identification of beneficiaries who are to receive benefits pursuant to the document.  The New York Probate Lawyer Blog has published many posts regarding Wills and estate planning and the need for proper drafting.

Some of the considerations that need to be taken into account include the recognition that a Will may describe property that is being disposed of.  Such property may be tangible items like pieces of jewelry or furniture.  Other types of assets may include real estate or business interests.  In all these situations it is important to take extra care to describe the gift with precision.  The last thing a testator should want is for beneficiaries to engage in post-death Surrogate’s Court litigation as to which item owned by the testator was given to them.  For example, a bequest of my “gold watch” is not helpful if the testator owned multiple gold watches.

original_1074565532-300x107During the course of preparing a New York estate plan, many different issues must be considered.  Initially, the basic plan must identify beneficiaries and the property or amounts each is to receive.  A thorough review and understanding of the creator’s assets and the ownership interests are essential.  As extensively discussed in the New York Probate Lawyer Blog, a Will only controls assets that are held in the decedent’s name alone.  Joint assets and assets with designated beneficiaries pass to the named parties automatically upon death.

Still another concern is whether to create a Living Trust as a primary vehicle for post-death transfers or to rely primarily upon a Last Will.

Regardless of the type of estate plan created, some consideration should be given to any possible effect of estate taxes.  In recent years, estate taxes have received less of a review because the exemption amounts have generally increased.  For the year 2020, the Federal estate tax exemption protects assets up to $11.58 Million.  A husband and wife combined can protect double this amount.  Also, all assets passing between a husband and wife are fully deductible and are not subject to estate tax.

shutterstock_571088005-2-300x200Estate planning in New York, and probating a Last Will in Surrogate’s Court, go hand in hand.  When a person engages in preparing and executing a Last Will, attention must be given to the eventuality of submitting the document to the probate process.  As discussed in many posts in the New York Probate Lawyer Blog, a Will must be executed in accordance with the statutory requirements set forth in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”

It has become more common that individuals prepare their own Will documents.  Many forms of Wills are available on the internet.  These can be found in legal document catalogues or through various legal document drafting services.  When it comes to a Will, not only does the document need to contain specific and properly worded and organized information, the execution and signing process needs to meet statutory requirements.  Thus, when self-help methods are utilized without the assistance of an attorney, the prospects for estate litigation and confusion can increase dramatically.  Such was the situation in a recent Rockland County estate case entitled Matter of Estate of Tsinopoulos, which was decided by Rockland Surrogate Keith Cornell on July 17, 2020.

In Tsinopoulos, the decedent used a Will form which she completed herself without the assistance of an attorney.  She then had the Will executed in her local bank, again, without the assistance of counsel.  While there is no prohibition against preparing and executing a Will without an attorney, the involvement of an estate lawyer gives the execution of the document a presumption of validity.  In this case, the Will left virtually all of the decedent’s assets to her daughter, which prompted the decedent’s son to file objections to the Will and engage in a Will contest.

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.

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