Planning an estate and advance directives involves a considerable amount of time and review so that the desired result is achieved. The New York Probate Lawyer Blog has discussed the importance of the many considerations when preparing planning and other documents. The papers that may typically be a part of a plan include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. As Estate Planning Lawyers recognize, a person must review and understand his assets so that the dispositions specified in the documents are effective to carry out the creator’s plan. For example, if a person is creating a Last Will and desires to devise a certain parcel of real estate , it is important to know the manner in which the real estate is owned. If the real estate is titled in a joint ownership with rights of survivorship in another person, then the Last Will cannot control its disposition as long as the other joint owner is alive. As discussed in earlier blog posts, a Last Will generally only controls assets owned by a person in his name alone.
In addition to knowing and understanding the nature of a person’s assets and the title ownership of these items, a person also must carefully determine and describe the recipient of the beneficial bequests. The language used in a Last Will or Trust must correctly and specifically describe the intended beneficiary and the share or amount such beneficiary is to receive. When the dispositive language in a document is ambiguous or unclear, it is common that Estate Litigation occurs to resolve these ambiguities. The Surrogate’s Court Judges are familiar with reviewing proceedings to construe ambiguous wording in order to carry out the intent of the creator. Surrogate’s Court Procedure Act Section 1420 is entitled “Proceeding for construction of Will; effect of decree,” and provides the guidelines to present a document to the Court to clarify any ambiguity or confusion. Recently, the Courts have had occasion to review a number of instances where it was necessary to clarify the terms of a Will or a Trust. In Matter of Victor Larsen Irrevocable Trust, decided on June 9, 2015 by Suffolk County Surrogate John Czygier, Jr., the Court was presented with a request by a successor trustee, beneficiary of an irrevocable trust, revocable trust and Last Will to construe certain provisions in the documents that, on their face resulted in duplicative specific bequests to named beneficiaries. The Court reformed the irrevocable trust by deleting the language that provided for the duplicative bequest. The Court found that such reformation effectuated the intentions of the creator.
In Estate of Bernstein, decided by Bronx Surrogate Nelida Malave-Gonzalez on June 9, 2015, a proceeding was filed pursuant to SCPA 1420 to change a Will bequest that had been made to the “State of Israel” to include additional language so that it would qualify for an estate tax charitable deduction. The Court allowed the reformation in furtherance of providing for the beneficial tax treatment.
I have assisted many clients in preparing their estate plans and Last Wills and other papers. As can be seen from the recent Court cases, it is important to obtain all information regarding proposed bequests and to clearly set forth this data in the documents to avoid confusion and to fully reflect the creator’s intent. If you have a question or issue concerning estate planning or a document filing in Surrogate’s Court, call me now for a free review.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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