Trusts and Estates

June 5, 2013

Trust and Estate Disputes Often Involve a Variety of Issues

Controversies arising in Estate Planning, Estate Litigation and Estate Settlement involve a vast variety of issues. New York Estate Lawyers know that the many different problems that are found in the area of Trusts and Estates are as diverse and complex as the individuals whose lives are impacted by them. In today’s blog post, I will take the opportunity to discuss some recent examples of controversies with the goal of providing some insight into the different issues and problems each portrays.

The New York Probate Lawyer Blog has discussed in prior posts that a New York Executor or Administrator has an obligation to discover and to collect the assets of a decedent. This “marshaling” of estate property is one of a fiduciary’s jobs when engaging in the settlement of an estate. An interesting approach was taken by one estate administrator who sued Wells Fargo Bank for wrongful death, elder abuse and other grounds for causing a decedent’s death. In an article by Matt Reynolds in AlterNet dated May 14, 2013, it was reported that Wells Fargo’s alleged improper foreclosure action resulted in the decedent’s death after he collapsed in the courtroom in an attempt to oppose the bank’s action. The estate Administrator then sued the bank claiming that it should pay damages for commencing a negligent and wrongful and malicious foreclosure action.

As can be seen from the Wells Fargo case, the assets or potential assets of a decedent are not always readily apparent. While it may be rather easy to discover and collect some estate property such as bank accounts, a fiduciary should investigate and consider all potential sources that might benefit the estate and its beneficiaries.

Another recent news story reported that a World War II veteran was attempting to prevent his daughter from evicting him from his home. As reported by Debra Cassens Weiss in the ABA Journal on May 16, 2013, the veteran had given his daughter a Power of Attorney whereupon the daughter transferred the vet’s house to herself and her husband. Despite claims of undue influence, the vet’s attempt to void the transfer was denied and now the daughter was seeking to evict him from the home.

The giving and use of a Power of Attorney should be carefully considered by both the Principal and the Agent or Attorney-in-Fact. While a Power of Attorney can be useful in estate planning and in avoiding Guardianship Proceedings, the person who is given the authority must be someone that can be trusted and relied upon without any doubt. Also, the person receiving the power has a fiduciary duty to act responsibly and any transfer of property by the Attorney-in-Fact to himself is considered improper.

Professional advice from a New York Estate Planning Lawyer can be very helpful in considering and preparing a New York Power of Attorney.

May 1, 2013

New York Issues Regarding Kinship and Domicile Are Always Important

by Jules M. Haas

The New York Probate Lawyer Blog has provided a number of posts regarding the importance of determining kinship in estate proceedings. Other posts have discussed the necessity of determining a person’s domicile in estate matters. This blog contains same basic points as a reminder of the necessity to properly consider both these issues in estate matters.

With regard to kinship, many estate proceedings in the New York Surrogate’s Court require that a person’s distributees (i.e., next of kin) be fully determined and reported to the Court. Both Administration and Probate proceedings require that proper notice be given to such individuals. In administration proceedings, where a person dies Intestate (i.e., without a Last Will), the decedent’s distributees are the ones who will inherit the estate and who can be named as Estate Administrators. Section 4-1.1 of the New York Estates, Powers and Trusts Law provides the order of priority of persons who can inherit the estate in the case of intestacy.

When the distributees of a decedent are not fully known or when the closest living relatives are more distant such as in Cousin Cases, the Court can require a Kinship Proceeding or hearing to determine the appropriate next of kin. Finding a person’s kinship history is not always easy, especially when families have been separated for many years throughout the USA or the world. Obtaining the assistance of an experienced New York Probate Attorney and genealogist can be vital in these matters in order to secure a person’s inheritance. While not a matter for the probate court, a recent controversy regarding the identity of the relatives of the late gangster, Al Capone, shows the confusion and uncertainty that can surround proving the members of a decedent’s family.

As reported at TMZ.com on April 17, 2013, Reelz Channel is planning a new reality show entitled “The Capones”. However, a person named “Chris K. Capone”, who claims to the gangster’s grandson, has asserted that the show’s star “Dominic Capone” is not related to the deceased, Al Capone. As can be seen, family histories can become complicated and certainly difficult to prove without qualified assistance.

Turning to the issue of domicile, it has been discussed that the concept of domicile is determining the jurisdiction where a person intends that his primary home is located. Someone can have many residences in different states and countries but only one domicile. A person’s domicile typically determines the jurisdictional law that applies to a person’s Estate. For example, if a person is domiciled in New York, New York Estate law will be applied to identify the persons who are entitled to inherit from the estate. Additionally, marital rights may be found by looking at the applicable local law. The imposition of local Estate Taxes is another area where domicile is a determining factor.

In today’s mobile society where individuals can change their residence frequently and also have multiple residences, figuring out a decedent’s domicile and the applicable laws is not always easy. In a recent case, Estate of Vincent Hart, decided by Nassau County Surrogate Edward McCarty III, on April 12, 2013 and reported in the New York Law Journal on April 30, 2013, the Court was faced with a slightly different problem. The issue presented was whether the Surrogate’s Court or the Superior Court in Puerto Rico was the most appropriate Court to determine issues regarding a New York Will and a New York Trust. After balancing the equities, the Court determined that most of the substantive issues, which involved New York law, should be determined by the New York Court. As can be seen from the Hart case, multi-jurisdictional Estate Litigation issues can be quite complex and complicate the Estate Settlement process.

April 24, 2013

New York Wills May Contain Trusts That Require a Trustee’s Use of Discretionary Powers

by Jules M. Haas

New York Estate Planning can involve many different issues and considerations. The New York Probate Lawyer Blog contains many posts discussing the need for Estate Planning papers such as a Last Will, Living Will, Health Care Proxy and Living Trust. Each of these documents should be prepared so that it reflects the intentions and desires of the creator.

A Last Will can contain relatively simple provisions for the disposition of estate assets. For example, the Will may say that the entire estate is to be given to the testator’s spouse if she survives him or if she does not survive then to the testator’s surviving children.

Of course, there are many circumstances when the provisions in a Will need to be more complex and there may be a desire to create a trust within the Will. Such a trust is called a Testamentary Trust.

A Testamentary Trust might be used for the purposes of establishing an estate tax plan where funds are placed into the trust so as to allow their exemption from taxation in multiple estates as provided by the estate tax laws. Other situations may call for a trust to be set-up to provide management and control of funds for someone who is a minor, or is improvident or for someone who is incapacitated. A Supplemental Needs Trust can be established where an incapacitated person is receiving governmental benefits such as SSD or Medicaid without causing these benefits to be diminished.

Whenever a trust is provided for there must be a Trustee or Trustees who are typically nominated in the document by the person creating the trust. The creator has the ability to define the powers that a trustee may exercise within the confines of the various estate and trust laws concerning these powers.

Trustees can be given broad discretion regarding investments and management of trust assets as well as the power to pay income and principal to the trust beneficiaries. Conversely, a trustee may be directed to use trust assets for a certain limited purposes or to advance a limited goal such as education for a beneficiary.

In view of the limited or broad authority granted to a Trustee, it is very important to both select the appropriate person or institution as a trustee and to define the trustee’s powers. Paying attention to these matters at the time the Will and Trust provisions are drafted is essential to ensuring that the creator’s intentions will be fulfilled after the trust is established and is operational.

New York Estate and Trust Lawyers are familiar with the many cases in the Surrogate’s Court where disputes arise between the trustees and trust beneficiaries concerning the management of the trust and the payment of trust income and principal. Most recently, Manhattan Surrogate Nora Anderson was presented with a situation where a trust beneficiary claimed that she was destitute and that the trustee of her trust was acting improperly by not making discretionary distributions to her to help her pay her rent and other expenses. In Hammerschlag v. Schlesinger, decided on April 17, 2013 and reported in the New York Law Journal on April 26, 2013, the beneficiary brought a proceeding in the Manhattan Surrogate’s Court to compel the trustee to make these payments and to remove him as trustee. The trustee sought to dismiss the proceeding by claiming that the trust provisions gave him “sole and absolute discretion” to make these decisions. The Court found that despite the trustee’s broad powers, the trustee has a duty to act in good faith and could not abuse his powers. Therefore, the Court scheduled a trial to determine whether the trustee acted properly.

April 17, 2013

New York Wills Need to Be Signed According to Statutory Formalities

by Jules M. Haas

A Last Will in New York must be created in accordance with the New York statutes. The Estates, Powers and Trusts Law (“EPTL”) contains numerous provisions concerning the fundamental aspects of and requirements for a valid Will. For instance, EPTL 3-1.1 states that anyone over 18 years old having sound mind and memory can dispose of their personal and real property by Will. Probably the most important provisions regarding Wills are contained in EPTL 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. The New York Probate Lawyer Blog has discussed this section of the law in previous posts. EPTL 3-2.1 states the numerous requirements that a Will must meet in order for it to be valid. Among the stated items is that the Will must be signed at the end by the testator, and that there must be at least two attesting witnesses. While the statute contains many more execution requirements, a signed writing with witnesses is fundamental to the validity of a Will in New York.

Estate litigation in the Surrogate’s Courts often occurs when there is a dispute as to whether a Will was properly executed. One of the grounds upon which to Contest a Will is lack of due execution. For example, someone objecting to a Will may claim that it was signed by a testator but not validly witnessed because the witnesses did not see the testator sign the Will or the testator did not acknowledge his signature to the witness. Sometimes there are questions as to whether the Will is genuine and if the document was actually signed by the testator. As can be imagined, there are a vast majority of Will Contest Litigations concerning the validity of Wills.

New York law tends to be very strict regarding the enforcement of the statutory requirements. In many instances, a prospective beneficiary may be without recourse where a testator prepares a Last Will to be signed or tells a beneficiary that a Will leaves a certain bequest and, as it turns out, the testator never signs a Will containing these provisions. Despite, the testator’s possible intentions, in New York, the failure to comply with statutory rules typically prevents the Probate of the purported or drafted Will. In this regard it is somewhat easy to understand that the strict nature of the law is to present unsigned, unwitnessed or other defective papers from being given validly where the testator is no longer alive to confirm that the defective documents actually express his final intentions.

Notwithstanding the specific requirements of the New York Probate Law, there are recent instances in other jurisdictions where unsigned documents have been admitted to probate and allowed to determine the disposition of a decedent’s estate. In a recent post by Cameron Stuart on April 6, 2013 in News.com, it was reported that Irvin Rockman, a former Melbourne, Australia Lord Mayor, attempted to sign a new Will but could not do so due to the seriousness of his illness. Although he died a few days later, the Australian court upheld the validity of the unsigned final Will finding from the evidence that it expressed Rockman’s intent.

Closer to home, a New Jersey Appellate Court approved the probate of an unsigned copy of a paper intended as a Will. In the Estate of Richard D. Erlich, 427 N.J. Super.64 (2012), the Court essentially determined that the unsigned paper was sufficiently formal and expressed the decedent’s intent and was therefore valid.

Despite these recent examples, the vast majority of Wills admitted to Probate are properly prepared, signed and witnessed. New York Estate Lawyers typically counsel their clients regarding their Estate Plan and supervise the preparation and execution of the client’s Last Will and other estate plan documents such as Living Trusts and Advance Directives. When the time comes to Probate a Will, a professionally prepared, signed and witnessed Will can make the Probate Petition Process and Surrogate’s Court filing more efficient and expeditious and less prone to a contest by unhappy family members.

April 3, 2013

A Good New York Estate Plan is Important to Prevent Contests of a Will That May Occur in Unusual Ways

by Jules M. Haas

New York Estate Planning Lawyers are familiar with the fundamentals that form a good estate plan. Preparing and executing a Last Will and Testament provides a written declaration as to the disposition of a person’s probate estate. A Will can be made up of various provisions some of which can give specific assets or amounts to named beneficiaries while other parts of the Will may contain bequests in percentages for a number of individuals. Additionally, a Last Will might have clauses that create trusts for minors or provide estate tax planning that might result in many dollars of savings.

In addition to a Last Will, other estate planning documents include a Living Will, Health Care Proxy, Power of Attorney and Living Trusts. All of these testamentary and advance directive papers allow a person to carefully plan their estate and future care by implementing a roadmap reflecting their intentions and naming the Executors, Trustees and Agents who will carry out their instructions.

In many instances, however, a person’s attempt to plan their estate may be met with contests and controversy. It is not uncommon for a testator to disinherit a close relative such as a child. It was recently reported in Examiner.com on March 25, 2013 by Joann Scheffler that the famous hair stylist, Vidal Sassoon, disinherited one of his sons. While Vidal Sassoon died in Los Angeles, New York allows a person to completely disinherit a child or anyone else except that a surviving spouse has a right under Estates, Powers and Trusts Law Section 5-1.1-A to elect to take a share of a decedent’s estate. Many times when a person who is a distribute (next of kin), such as a child, is disinherited, the result is a contested estate or a Will contest with claims of undue influence or lack of testamentary capacity. A solidly prepared and executed Last Will and estate planning papers are imperative to defeat attacks by disgruntled relatives who expected but did not receive a large inheritance.

The desire to control the disposition of estate or trust assets can sometimes lead to rather extreme actions. A Florida multi-millionaire, John Goodman, recently adopted his 42 year old girlfriend. It appears that Mr. Goodman had been convicted of drunken driving and was facing a prison sentence and civil damages. By adopting his girlfriend it appears that Mr. Goodman would allow her to receive a large share of his trust fund that would have gone to his two other children. In the article by Beth Stebner that appeared in Mail Online on March 28, 2013, it was reported that the children had contested the adoption and that an Appeals Court in Florida voided the adoption as fraudulent and having no purpose.

An even more extreme example of an attempt to control an estate distribution was reported in The Northern Echo on March 27, 2013. It seems that a man who was the sole beneficiary under his parents’ Will sought to accelerate his inheritance by first failing to kill his mother and father in a fake road accident and then succeeding in having them die after he shot them in their home. In New York, a person who murders another to receive an inheritance is not allowed by the Courts to profit from their wrongdoing and they are disqualified from receiving their ill gotten gains.

While the above examples of actions to control an inheritance are not common, the important point is that an individual concerned with ensuring the proper disposition of his estate should obtain advice regarding New York Estate Planning. There is really no substitute for preparing an appropriate Will and other planning papers to minimize the likelihood of contests and controversy over an inheritance.

March 27, 2013

A New York Estate Can Be Distributed Where a Parent is Found to be Disqualified to Inherit

by Jules M. Haas

The Administration of a New York Estate where a decedent dies intestate is determined by the laws of descent and distribution. As the New York Probate Lawyer Blog has discussed in previous posts, New York Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 provides the list of priority of distributees who are entitled to receive a share of a decedent’s estate when such person dies without a Last Will (“Intestacy”). This list begins with a decedent’s spouse and children, and then goes on to parents, brothers and sisters and more distant next of kin.

New York Estate Lawyers are familiar with the due diligence necessary to determine the identity of a decedent’s next of kin and that sometimes is required when a person’s family tree is unclear. In some cases, the Court may require a Kinship Hearing to determine the rightful estate beneficiaries.

In other situations, the identity of the Estate Heirs may be easy to determine. However, other factors may complicate the Estate Settlement process. For example, a person may be identified as the decedent’s spouse, thus having priority to inherit. Sometimes there are questions concerning the status of the spouse and whether there was a valid marriage ceremony or if a divorce occurred prior to the decedent’s death. Additionally, a spouse may be disqualified to inherit where the spouse “abandoned the deceased spouse”. EPTL 5-1.3.

A similar disqualification can occur with respect to the inheritance rights of a parent. Pursuant to EPTL 4-1.4 a parent will be disqualified from receiving a share of a decreased child’s estate where the parent “(1) has failed or refused to provide for the child or has abandoned such child….”

Questions concerning a parent’s alleged abandonment are typically resolved in Estate Litigation that occurs in the Surrogate’s Court in connection with the Administration Proceeding. Parental rights to inherit from a child’s estate may be a very valuable item. Recently, a case was presented to Surrogate Bruce Balter (Kings County) entitled Estate of Ricardo Ramos. This case was decided on March 6, 2013 and reported in the New York Law Journal on March 25, 2013.

In Ramos the Court was asked by the Estate Administrator to approve a settlement of $900,000 for the wrongful death of the decedent who died due to an accident at work. The decedent’s distributees were his mother and father. The Administrator also asked the Court to allow the entire settlement to be distributed to the decedent’s mother claiming that the father had abandoned the decedent. Following the presentation of evidence to the Court it was found that the father abandoned the decedent “by neglecting or refusing to fulfill “the natural and legal obligations of training, care and guidance owed by a parent to a child . . . . .”

Estate issues regarding Kinship and determining Estate Distributees are important in all estate cases. As a New York Estate Lawyer I have represented many clients and assisted them in resolving concerns regarding inheritance rights.

March 20, 2013

New York Real Estate Litigation May Involve a Decedent’s Estate Interest

by Jules M. Haas

New York Estates and Trusts are comprised of various types of assets. Very often these assets include real estate in the form of a single family home or commercial property. When an Executor, Administrator or Trustee has the responsibility of protecting and handling real estate interests, the job of the Fiduciary can become very complicated.

In the most simple case, the Fiduciary must protect the property which means the real estate must be secured and it should be covered by insurance, if possible. Additionally, the property may contain tenants or third-party occupants whose identity must be determined along with any leases or rights of possession such occupants may have. In many instances it will be impractical to distribute the estate without selling the real property. The decedent’s Last Will or Intestate Distribution may require that many individuals receive a share of the property value which cannot be accomplished without liquidating the property into cash funds.

Also, the property may be subject to a mortgage or other liens or expenses that necessitate its sale in order that these debts or obligations be paid. Another consideration is the cost of maintaining the property and paying maintenance fees or property taxes. Such costs may require that the real property be sold rather than requiring the decedent’s estate to pay these continuing costs.

When dealing with real estate an estate may also become involved in litigation that affects the property. New York Estate Lawyers often have to represent their Fiduciary clients in connection with this type of Estate Litigation. A recent case decided by the New York Court of Appeals is an example of the problems an estate can face with Real Estate Litigation. White v. Farrell was decided by the Court of Appeals on March 21, 2013 and reported in the New York Law Journal on March 22, 2013. In this case Paula and Leonard White had signed a contract to purchase real estate from the Farrells. However, after the contract was signed, the White’s decided that they wanted to cancel the contract because they claimed that drainage issues affecting the property was not fully disclosed to them. The Farrells refused to cancel the contract and ultimately claimed that the White’s defaulted by refusing to close title. During the course of the litigation Leonard White died and so the litigation continued and affected the interest he had in the proceedings. It appears that Paula was appointed as Executor of Leonard’s estate and represented the estate’s interest in the case. The Court of Appeals ultimately refused to grant summary judgment for the Farrells but did determine that the measure of damages suffered by the Farrells due to the Leonard’s breach of the Contract “is the difference, if any, between the Contract price and the fair market value of the property at the time of the breach.”

As can be seen from White, there are many issues that can impact Estate Settlement and the interests of a decedent. In many instances, I have represented Executors and Administrators where real estate is an estate asset. Such estates require that the Fiduciary take a very active role in managing the real property and protecting the estate’s interests especially where the property is the subject of claims and is affected by ongoing litigation.

March 6, 2013

New York Guardianships End Upon the Death of the Incapacitated Person

by Jules M. Haas

New York Guardianship Attorneys are familiar with Article 81 of the Mental Hygiene Law (“MHL”) which provides the statutory provisions governing Guardianships in New York. When a person is determined to be incapacitated and a Guardian is appointed for property management or personal needs, the Court will issue an Order and Judgment specifying the Guardian’s duties and powers. Thereafter, the County Clerk will issue a Commission which is the formal certification of the Guardian’s appointment.

A Guardianship is generally ended upon the death of the incapacitated person. The Court Order and Judgment usually sets forth the procedures that are to be followed when the incapacitated person dies. These requirements typically re-state portions of the MHL law. For example, MHL 81.44 entitled “Proceedings upon the death of an incapacitated person”, contains a number of requirements including that within twenty (20) days after the incapacitated person dies a Guardian must send a statement of death to the Court examiner and the estate personal representative. Also, within 150 days of death the Guardian must serve a statement of assets and deliver all guardianship property to the estate personal representative.

In addition to the requirements of MHL 81.44 other sections of the law also relate to post-death procedures. MHL 81.21(a)(14) allows a Guardian to pay funeral expenses for the incapacitated person and MHL 81.21 (a)(20) gives the power to “defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed.”

As stated in MHL 81.44, the Guardian is required to prepare and file a final report or accounting. As can be seen, accepting an appointment as Guardian involves a great deal of responsibility. Both before and after the death of the incapacitated person, the Guardian must maintain detailed reports to be filed with the Court regarding the person’s assets, income, expenses and general welfare. When an incapacitated person dies, all of this information transfers over to the estate representative who must review the Guardian’s transactions and determine whether to provide final approval or acceptance of the Guardian’s conduct. If the estate representative, such as an Executor or Administrator, feels that the Guardian did not act properly, objections can be filed to the Guardianship Accounting and the Court will determine whether any corrections or other remedy is required.

Guardianship and estate proceedings often interconnect especially since many Article 81 Guardianship matters concern older individuals who have become disabled due to physical illness or other conditions such as dementia. As a Guardianship and Estate Lawyer I have represented individuals involved in all of these types of proceedings. Sometimes my clients have been involved in Guardianship proceedings and then have requested that I assist with representation in probate or administration matters after the incapacitated person has died.

February 27, 2013

New York Administrators and Executors Cannot Delegate Their Authority to Others

by Jules M. Haas

A New York Fiduciary such as an Executor or Administrator is appointed by the Surrogate’s Court after a person has died. As discussed in many posts in the New York Probate Lawyer Blog, an Executor is appointed as an estate representative when a Last Will has been probated. The Executor is typically nominated or named in the Last Will. Sometimes the Court may need to appoint an estate representative who is not named in the Will. In such case, the title of the appointee is Administrator c.t.a.

An Administrator c.t.a. should not be confused with the typical appointment of an Administrator which occurs when a person dies intestate or without a Will. In these situations, the decedent’s distributees are entitled to be appointed in accordance with the statutory priority set forth in Surrogate’s Court Procedure Act (“SCPA”) Section 1001.

As talked about in prior posts, an estate fiduciary has many duties and obligations. At the core of a fiduciary’s responsibilities is to determine and collect the decedent’s assets, pay debts, expenses and taxes and distribute the net estate to the Estate Beneficiaries. In order to facilitate these functions an Executor and Administrator has many powers. Many of these powers are listed in New York Estates, Powers and Trusts Law (“EPTL”) Section 11-1.1 entitled “Fiduciaries: Powers, Duties and Limitations”. For example, this statute authorizes a fiduciary to invest estate assets, maintain insurance, collect rents, sell property and make repairs to property.

All fiduciaries accept the fact that they have a great deal of responsibility. Depending upon the size and complexity of an estate, acting as a fiduciary can be a very time consuming job. Many of the tasks that need to be performed can be facilitated by a New York Estate Lawyer. When representing a New York Fiduciary, I routinely help a client collect estate assets and determine debts and obligations that need to be paid. However, there is no substitution for actual involvement and hands-on functions in Estate Settlement by the personal representative. Such obligations may be particularly demanding when the fiduciary lives out of state or in a foreign country. Out-of-State fiduciaries cannot provide a substitute for the many of the jobs they must perform.

A fiduciary cannot delegate his authority to someone else. He cannot give a Power of Attorney to anyone to perform the jobs that he is required to do. Thus, if a closing for the sale of real estate is to occur, the fiduciary is the only person with the authority to sign the deed and other transfer papers. The Executor or Administrator must either attend the closing or arrange to have all the necessary papers signed prior to the closing date and delivered when the deed is transferred. The fiduciary must also sign the Contract of Sale.

The prohibition against a fiduciary delegating his authority was recently recognized by the Court in Garmon v. County of Rockland, a case decided by U.S. District Court Judge Andrew Carter on February 11, 2013 and reported in New York Law Journal on February 22, 2013. In Garmon, the decedent had been arrested and died in police custody. Thereafter, the decedent’s daughter was appointed by the Surrogate’s Court as the Administrator of his estate. The daughter then executed a Power of Attorney in favor of the decedent’s father who then started a lawsuit to recover for the wrongful death of the decedent. The Court, however, dismissed the father’s lawsuit finding that the father was not the Estate Administrator and, therefore, did not have the authority to act on behalf of the decedent’s estate. Moreover, the Court found that the Power of Attorney was ineffectual since the daughter, as Administrator, could not delegate her duties regarding Estate Administration.

I have represented many Estate Executors and Administrators and assisted them with performing the various tasks associated with their responsibilities as a fiduciary. While a New York Estate Attorney cannot act in the place and stead of his client, I try to facilitate and expedite the Estate Settlement process so that my clients can fulfill their jobs as efficiently as possible.

January 30, 2013

Estate Planning in New York Should Always be a Top Consideration

by Jules M. Haas

There are legions of articles and information postings explaining the benefits of having an Estate Plan. New York Estate Planning, as well as planning in all other states, requires that an individual take the time and consideration to develop the precise manner in which assets, financial affairs and personal matters can be handled in the event of death or incapacity.

However, despite all of the pronouncements and guidance that is offered, New York Estate Lawyers know that a lack of estate planning or an ineffective plan is often the rule rather than the exception. In a recent post by Russ Rankin at churchexecutive.com entitled “Survey: Most SBC pastors not prepared to die“, it was reported that almost 40 percent of pastors in the Southern Baptist Convention have no estate planning documents. It appears that this lack of planning is remarkable since members of the clergy would seemingly interact with parishioners on a day to day basis who face the personal hardships of having to deal with the death and incapacity of family members and friends.

The New York Probate Lawyer Blog has discussed Estate Planning Documents in many posts. These documents include a Last Will, Health Care Proxy, Living Will, General Power of Attorney and Living Trust. When creating an estate plan, an individual should consult with a legal advisor to determine which documents are most suited to his circumstances. Specific provisions and beneficiary designations in a Last Will or Trust, as well as other documents, may need to be crafted to deal with particular circumstances and to insure that a person’s intentions are carried out without confusion or delay.

Interestingly, in Mr. Rankin’s article, the author notes that over half of the pastors believed that when a person dies intestate (without a Will), the decedent’s family determines what happens to the deceased person’s assets. The fact is in New York, like most states, when a person dies intestate New York law determines the persons who inherit the estate. These persons are called distributees (i.e., next of kin) and the order of priority of inheritance is set out in New York Estates, Powers and Trusts Law Section 4-1.1. Also, typically an Administrator will be appointed from this group of distributees after a petition is filed with the Surrogate’s Court in New York.

Since it is always best to create an estate plan, which includes naming one’s Executors and Trustees rather than leaving their selection to an artificial state law, steps should be taken to put a plan in place and to update the plan periodically.