New York Probate Lawyer Blog

August 9, 2012

New Yorkers Have Options When Leaving Gifts to Minors

New York estate planning lawyers are routinely consulted for advice as to the best way to give property or substantial sums of money to minor children. The trouble with such a gift is that a minor child typically cannot fully enjoy it until he or she reaches the age of majority. In New York, as in many jurisdictions, that magic age is 18.

To say that a minor child cannot fully enjoy such a gift is to say, essentially, that the world was not designed for minor children to be in control of valuable property or substantial sums of money. For example, banks and investment brokerages usually will not allow minors to have the autonomy to administer account funds as they wish. Similarly, minors cannot enter into a real estate contract should they wish to sell a piece of real property left to them as a gift.

Most gifts to minors are subject to implicit limitations on access and use because they are accomplished by way of a trust. The problem with a trust in New York is that it is subject to oversight by the Surrogate’s Court. Additionally, a trust can create a number of tax, accounting, and legal side effects that may dissuade the gift donor from making the gift in the first place.

Fortunately, New Yorkers have options when they consult a Manhattan estate planning attorney. One such option is to make a gift under the Uniform Transfers to Minors Act (UTMA). The Act, codified in the New York Estates, Powers and Trusts Article §7-6.1 – 7-6.26, sets out a system in which the intending donor makes an irrevocable gift to a Custodian for the child. In practice, the custodianship arrangement is accomplished with language transferring property or money to any adult or trust company “as Custodian for” [the named minor] “under the New York Uniform Transfers to Minors Act.” The gift should spell out that language so as to distinguish the gift from the creation of a trust or any other type of arrangement, and also to direct all interested parties to the particular body of law that governs the arrangement.

Donors should take care to designate a prudent and responsible entity to carry out the custodial duties. Custodians under the Uniform Transfers to Minors Act are not merely guardians of the property or assets, but rather are active participants in managing and growing the gift assets for the benefit of the named minor child. Custodians may invest the liquid gift assets or decide to sell the real or personal property entrusted to them if the Custodian decides that doing so would be in the best interest of the minor. Custodians are held to a reasonable prudence standard; they must exercise a standard of care “as would be observed by a prudent person dealing with property of another.” Further, Custodians are entitled to reasonable compensation and reimbursement for expenses. They may be required to account for the gifted assets in court proceedings, and so the Custodian must keep accurate and detailed records of all transactions.

On its face, a donor’s gift to a Custodian for the benefit of a minor child may appear to have many of the same characteristics of a trust. However, a Bronx trusts and estates attorney can explain the fine nuances and help evaluate whether a gift under the Uniform Transfers to Minors Act is the best way to see that your property and assets are distributed to the persons you wish in the manner you wish.

August 3, 2012

New York Estate Planning May Involve Leaving a Relative Out of the Will

by Jules M. Haas

Clients sometimes consult a New York estate planning lawyer in order to investigate the possibility of “writing someone out” of a Will. In the eyes of the law, this process is called ‘disinheriting’ the person. Disinheriting essentially removes any rights or entitlements that a person may expect to receive upon the death of the testator. It is a right possessed exclusively by the testator and one that ordinarily may not be challenged. Sometimes challenges do occur in the form of a Will Contest or Contested Will where a distributee (i.e., next of kin) or other interested party may contend that the Will is invalid. As previously discussed in the New York Probate Lawyer Blog a Will may be contested on various grounds such as Undue Influence, Lack of Testamentary Capacity or Improper Execution.

The person drafting a Will may arrive at the decision to disinherit a relative or other interested person for any number of reasons. Some of the most common reasons to disinherit a person are: (1) the testator no longer maintains a relationship with the person; (2) the testator does not condone the life choices the person has made or is making; (3) the testator feels that the person has sufficient financial resources such that a testamentary gift would be inappropriate; or (4) the testator would rather bequeath the assets to another person to whom they had a closer relationship, or from whom the testator had received the bulk of his or her end-of-life care.

Whatever the reason, the decision to write someone out of a Will should not come lightly. Disinheriting a person often causes tremendous emotional and financial consequences, and can even make the possibility of a Will Contest more likely. After all, if someone’s assets are left, for example, to all of the surviving children except one, the excluded child is almost definitely going to feel hurt, saddened, and/or angry. The excluded child may claim that the others unduly influenced the parent to keep him or her out, which may lead to years of bitter disputes and expensive Estate Litigation.

New York Estate Lawyers are aware that all Wills, Trusts and Advance Directives must be explicit as to the terms and beneficiaries. These emotional and legal considerations are, in fact, so persuasive that when the beneficiaries of a Will do not include the testator’s spouse and/or children, New York courts sometimes find that the testator meant to have included the missing relative. This means that any document that excludes a close relative from the estate should contain clear, unambiguous language that cannot be interpreted any way other than to express the testator’s desire to have that person excluded. such language can facilitate the Probate and Estate Settlement process.

Moreover, local laws still allow certain relatives to collect a portion of the estate assets even if this language is present. For example, in New York, a surviving spouse is entitled to collect either one-third of the estate or $50,000.00, whichever is greater. This occurs even if the spouse is written out of the Will, so that the surviving spouse does not experience a significant financial burden on top of the loss of their loved one. Estates, Powers and Trusts Law (EPTL) section 5-1.1A provides extensive rules that allow a surviving spouse to take a share of a decedent’s estate (the “elective share”) even if he or she is otherwise disinherited.

August 1, 2012

A New York Alleged Incapacitated Person Cannot Be Forced to Testify

by Jules M. Haas

A New York Guardianship proceeding requires a hearing before the Court. Mental Hygiene Law (MHL) section 81.11 states, in part, that “a determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing.”

MHL Section 81.02 provides that the appointment of a Guardian must be based upon “clear and convincing evidence.” Typically, at such hearings, individuals who have had personal contact with the alleged incapacitated person (“AIP”) can testify as to their observations as to the AIP’s ability to engage in activities of daily living. Such testimony can also relate to various events that have occurred concerning the AIP such as the AIP forgetting where he or she lived or experiencing hallucinations. These types of events may indicate a loss of capacity.

The guardianship attorney for the petitioner usually calls these witnesses to testify in Court and can present other evidence in the form of documents that may show incapacity such as unusual transfer of assets. Of course the AIP has a right to oppose the petitioner’s request for Guardianship. As provided in MHL 81.11 the AIP can call his or her own witnesses, be represented by an attorney and cross examine witnesses.

In some cases, especially where there are few third party witnesses to the AIP’s activities, a petitioner may want to have the AIP testify to demonstrate to the Court that the AIP lacks capacity. By using in-court testimony, the petitioner can try and show that the AIP lacks the ability to understand or appreciate his or her medical or personal needs or is unable to demonstrate the ability to recall or handle finances. These situations have resulted in a controversy as to whether the AIP, like a criminal defendant, has the right to refuse to testify against him or herself.

The recent case of Matter of G.P., decided by Judge James D. Pagones of the New York State Supreme Court, Dutchess County on July 26, 2012, involved this issue. Judge Pagones determined that since the appointment of a Guardian resulted in the loss of certain individual freedoms and liberties, such as making medical decisions and determining where to live, an AIP cannot be “compelled to testify as a witness for the petitioner….”

When representing a petitioner in a Guardianship proceeding, particularly where the Guardianship is contested, I work closely with the client to determine the witnesses who can best tell the Court, based upon personal knowledge, about the AIP’s ability to handle their personal affairs and property management. The decision in Matter of G.P. demonstrates that a petitioner cannot rely on just presenting the AIP to the Court, but must have competent independent witnesses to meet the “clear and convincing” proof required for a Guardianship appointment.

July 26, 2012

New York Guardianship Proceedings Also Involve Payments from a Supplemental Needs Trust

by Jules M. Haas

The New York Probate Lawyer Blog has had many posts regarding issues and requirements of an Article 81 Guardianship Proceeding. These proceedings involve a determination as to whether an individual is incapacitated and, if so, the appointment of an appropriate Guardian.

The determinations that are made by the Court involve many different persons which may include the alleged incapacitated person; a petitioner (usually a family member); and a Court Evaluator. In some cases third parties are involved such as a Nursing Home, Adult Protective Services, New York State Mental Hygiene Legal Service and Medicaid.

A Supplemental Needs Trust (“SNT”) is often a critical component of the Guardianship process. In a typical situation a person who is incapacitated may be entitled to a large monetary award due to a personal injury action. Since the incapacitated person would also qualify for government benefits such as Medicaid and SSI, the SNT provides a means by which the monetary funds can be set aside for extra benefits without the loss of the governmental entitlements. In the Guardianship proceeding, the Court authorizes the Guardian to establish the SNT and to transfer the funds into the Trust thus avoiding any loss of benefits. The SNT trustees, who are also designated by the Court, then administer the trust for the benefit of the disabled person. The trustees selected are commonly the family members who are the Guardians.

Once the SNT is established, the trustees can make expenditures for such things as computers, vacations, extra care and other items which the governmental benefits do not pay for without losing the governmental coverage for other items such as medical care. A good explanation of this process is provided in a recent case decided by Justice Howard H. Sherman on April 19, 2012 and reported in the New York Law Journal on May 14, 2012 entitled Matter of Geraldine R. In this case the Department of Social Services (Medicaid) claimed that the Supplemental Needs Trust trustees did not need to obtain prior Court approval to pay for items such as a vacation, purchase of a computer, printer and television, and educational programs. The Court found that it had authority to approve these items prior to the expenditure.

In fact, it is the usual and appropriate manner for trustees of a SNT to obtain prior Court approval of their expenditures. The trustees can then avoid a later denial by the Court and the requirement that they reimburse the trust for improper expenses.

I have represented many clients in connection with Guardianship proceedings and the establishment of a Supplemental Needs Trust. These cases require a Court hearing and I work closely with my clients and their families to help them through what can be a complex court process.

July 20, 2012

A New York Power of Attorney Can Be Used to Amend a Trust

by Jules M. Haas

New York Estate Lawyers assist their clients with many types of estate planning documents such as Last Wills, Living Wills, Health Care Proxy’s, Living Trusts and Powers of Attorney.

All of these papers are generally created to work together so that a person’s estate plan and lifetime directives are clear and can be followed without complication or estate litigation. A New York Statutory power of attorney empowers the appointed attorney-in-fact to make decisions regarding various types of matters such as business or real estate matters. A power of attorney is a lifetime directive and the authority granted by the power ends at the time of a person’s death. However, decisions and actions made by the attorney-in-fact can have significant consequences after the death of the principal. For example, when an attorney-in-fact executes a deed transferring real estate, or transfers assets in various bank or brokerage accounts, during the lifetime of the principal, provisions that were made in Last Wills or Trusts may no longer be effective. This is because the assets that were meant to be transferred by such testamentary documents may not be owned by the testator in the manner anticipated when the estate plan was created.

Another potential problem is that the attorney-in-fact may use the power of attorney to amend or change some of the estate planning documents such as a Trust Agreement. This was the situation encountered by the Court in Perosi v. LiGreci, decided by the Appellate Division, Second Department on July 11, 2012. In Perosi, Mr. LiGreci had created, during his lifetime, an irrevocable trust and appointed his brother as trustee. LiGreci also created a power of attorney appointing his daughter as attorney-in-fact. Shortly before LiGreci died, his daughter used her authority under the power of attorney to amend the trust and designate the daughter’s son as the new trustee.

The Court ultimately found that the attorney-in-fact had the authority, in this instance, to amend the trust.

In view of the Perosi case, it is clear that naming a person as attorney-in-fact in a power of attorney requires serious consideration. Estate settlement and administration can be compromised by the actions of an attorney-in-fact who has the authority to change estate planning documents. It is a good idea to put precise language into trusts and other agreements defining to what extent, if any, an attorney-in-fact can amend or change these papers.

Individuals expend a great deal of time and expense in planning their estates through the use of Wills and Trusts. It is unfortunate where the actions of a lifetime attorney-in-fact can result in Surrogate’s Court litigation because these documents were changed without the testator or creator him or herself signing the amendatory papers.

A complete review by a qualified New York estate attorney is imperative so that a person’s intentions regarding estate distribution is set forth and can be implemented without modification or confusion.

July 19, 2012

New York Business Owners Need Special Estate Advice

by Jules M. Haas

Most New Yorkers spend a significant portion of their adult lives figuring out ways to accumulate wealth. At a certain age, the focus tends to shift from the accumulation of wealth to wealth protection. At a certain age beyond that, the focus shifts to how to utilize that wealth in order to ensure a secure retirement. Around the same time, the secondary focus is what will happen to any leftover assets once you are gone.

As complicated as this process is for any New Yorker, the process can be even more complicated for a New Yorker who operates his or her own small business. The primary trouble for an aging New York business owner is that his or her wealth is much harder to calculate, as much of his or her assets are likely tied up in the operation of the business.

As a result, aging business owners have two primary choices when it comes to estate planning. On one hand, they can plan to sell the business for its fair market value. This option puts the full value of the business assets in the owner’s proverbial pocket, from which he or she can set aside retirement money and carve out a plan for what happens to any leftovers at death.

In many cases, however, the state of affairs is not as cut-and-dry. Small businesses in New York are very often family affairs, passed down among multiple generations in some cases. A long-time pizzeria owner may employ some of his own children and even grandchildren, for example. When family livelihoods revolve around the family business, an estate plan that would sell the business for its proceeds just would not make much sense.

Instead, many New York small business owners choose to craft estate plans that transfer ownership interests in the business rather than a defined monetary value. After all, an ownership interest in a business can have a potentially unlimited value, even if its present interest is difficult to calculate. Additionally, the preservation of your business amongst your family members can give you the flexibility to transfer ownership subject to as many or as few conditions as you wish. Hands-on owners may wish to set out long term plans for the business even after they are gone, while others may wish to entrust the direction of the business wholly to a son or daughter.

These cases may be further complicated if some, but not all, of the business owner’s family members intend to carry on the business. For those that do, an interest in the business may be an appropriate testamentary gift. For those who wish to pursue careers outside the family business, other gifts may be appropriate. No two estate plans are exactly the same, especially ones involving the transfer of a business.

For these reasons, an experienced New York estate planning attorney can be an essential ally. Don’t entrust your personal and business assets to the laws of New York when your time comes. Make sure your assets pass precisely how you intended.
Business owners and their New York estate lawyers must be fully familiar with all of the documents and agreements that can effect an estate plan. These items include, shareholder agreements, partnership agreements, real estate deeds, commercial leases, life insurance policies and various types of retirement and pension plans. All of these papers must be fully understood so that their provisions and beneficiaries can be incorporated into the overall estate and lifetime gifting plan that is being developed.

In many instances estate administration and estate settlement can be disrupted where the terms of an estate planning document such as a trust or Last Will contradicts or is not otherwise in harmony with provisions in business papers such as shareholder agreements. A shareholder agreement may provide for the transfer of a business interest upon the death of a shareholder that is contrary to provisions put into a Last Will. Provisions in these documents that contradict one another can ultimately lead to Surrogate’s Court litigation such as Will contests or construction proceedings. Not only can a lack of good planning result in estate litigation, the operation of a profitable family business may be disrupted where there is uncertainty as to whom the new owners will be and who has the present right to make crucial business decisions.

July 18, 2012

Giving Estate Assets to Charity

by Jules M. Haas

These days, New York estate planning attorneys are finding it far more common for New Yorkers to give a portion of their estate to charity. They can do this because the law recognizes charitable organizations as legal entities in the same category as ordinary persons. As a result of this characterization, a charitable organization is free to receive testamentary gifts – i.e. gifts from a person’s estate – as if it were merely a transfer from one person to another.

Unlike gifts to ordinary persons though, lawmakers typically want to encourage charitable giving. Charitable giving tends to distribute the wealth across a broader spectrum of people or causes, rather than keeping assets tied up within a single family. As a result of these public policy theories, lawmakers have created tax incentives designed to encourage people to write charitable gifts into their wills.

A typical testamentary gift to charity can be achieved in several different ways. One of the most common ways to do it is to leave the charity a percentage of one’s estate. A gift of this sort would read something to the effect of: “I give ___% of my estate to X Charity.” The only trouble with this kind of gift is that its value is uncertain. The value of one’s estate is a function of how much of one’s assets remain at the end of one’s life. Therefore, it is not until one dies that the charity will learn of the value of its gift.

Another common way to leave a gift to charity is to give a fixed amount or a particular piece of property. A gift of this sort would read: “I give $____ to X Charity” or “I give my property located at [address] to X Charity.” This kind of gift is far more certain because in the first instance a fixed dollar amount is gifted. In the second instance, a property of a certain current value is promised, and the charity can reasonably predict its future value.

Another way is to grant the charity a remainder of one’s estate once other beneficiaries are gone. Charities are potentially infinite in duration, unlike people. It is possible to leave certain loved ones your assets once you are gone, and for the charity to take the remainder of those assets (if any) once your loved ones are deceased.

Still another common way to leave a charitable gift is by making a charity the beneficiary of a life insurance policy. Because charities are “people” in the eyes of the law, a charity can be designated as a beneficiary to be paid upon the death of the policyholder, just like any ordinary person can. Similarly, charities can be named the beneficiaries of any retirement plan.
This is by no means an exhaustive list. A New York estate lawyer is best equipped to explain the nuances of each of these variations and to explain the other variations of charitable giving. In cases where the client wants to bequeath some or all of his or her assets to charity, there is no one-size-fits-all solution.

July 11, 2012

New York Will Contest Grounds

by Jules M. Haas

Contesting a will in New York is an uphill battle. After all, the purpose of a will is to commemorate the wishes of a person after they are deceased. Since the person in question is no longer alive to clear up any potential conflicts, courts tend to give tremendous weight to the provisions contained in the will.

The presumption, however, that wills are impenetrable documents is not absolute. On occasion, a dead person’s decedents are able to convince a court that the will should not be enforced as written, or that it should be thrown out entirely. The reasons why someone might want a will overturned are numerous. Perhaps you have been excluded from a will when you don’t believe the deceased would have wanted you to be. Perhaps you were included, but you feel that someone else should not have been included. Whatever the case, the following common grounds can potentially lead to a successful New York will contest:

The will was not properly executed
New York state law requires that the deceased must have signed the document with a declaration that the document is to be considered his or her will. Two witnesses must have been present during the execution of a will, and both must have signed their names to the document to certify their understanding of the deceased’s intent. If any one of these standards is not met, a will contest action is likely to succeed.

The testator lacked testamentary capacity
In a will, the term “testator” is synonymous with the deceased: the person whose wishes are to be carried out. When the testator executes the document, he or she must generally be of sound mind, demonstrating adequate comprehension of what he or she is doing. In particular, the testator must understand (1) the nature and value of his or her assets, (2) the nature of the people who are to receive his or her assets, and (3) the legal effect of signing a will. If, once the testator is dead, someone contesting the will can demonstrate evidence that the testator was incapable of meeting any of these legal standards, the will contest may succeed. However, lack of testamentary capacity is a very difficult standard to prove.

The testator signed the will because of undue influence
As people age, they can naturally become physically and mentally weakened. In this weakened state, a person can become susceptible to the influence of others who have designs for the testator’s assets. Often, the line is blurry between those who seek to influence a testator for legitimate purposes and those who seek to profit from the testator’s weakened state. The standard for undue influence is one of extreme pressure that causes severe duress. The duress must be so severe as to cause the testator to lose free will in the distribution of their assets. Not surprisingly, this is a difficult standard to prove, as the testator’s stand of mind is impossible to access once they are dead, and much of the evidence of the undue influence may be one person’s word against another’s.

If you believe you have sufficient grounds to contest a will, consider consulting a New York estate lawyer, who can help evaluate the strengths and potential weaknesses of your argument. New York will contests are difficult battles, but worth fighting if you have the proper evidence and a skilled attorney.

July 5, 2012

New York Estates Are Impacted By Marital Status As of a Decedent’s Date of Death

by Jules M. Haas

New York Estate Administration Attorneys are often confronted with questions as to whether a decedent was married at the time of death. The issue of marital status is important since a surviving spouse is a distributee (next of kin) under New York Estate Laws and is afforded certain rights in a decedent’s estate. These rights have been discussed in previous posts in the New York Probate Lawyer Blog including a spousal right of election (Estates, Powers and Trusts Law [EPTL] Section 5-1.1 A) and a spousal right to an intestate share of the estate (EPTL Section 4-1.1).

The determination as to a person being married at the time of death involves investigation as to whether there was a valid marriage and, if so, was the marriage terminated by a valid divorce.

New York Estate Litigation may be necessary to provide an answer to these inquiries. As a New York Trust and Estate Lawyer, I often need to investigate such issues by obtaining and examining relevant documents such as marriage certificates and divorce settlements and divorce decrees to advise clients as to the decedent’s marital status so that proper estate settlement can occur.

A recent case in the Richmond County Surrogate’s Court provides an example of the complicated facts that can be involved in determining marital status. In Estate of Daniel Kelly, decided by Surrogate Robert Gigante on June 18, 2012 and reported in the New York Law Journal on June 29, 2012, the decedent and his spouse entered into a divorce Separation and Settlement Agreement on October 16, 2008. On that same date they appeared in Court and the divorce judge granted the divorce. However, the decedent died on January 7, 2009 and the actual divorce judgment was not signed until March 25, 2009 relating back to the October 16, 2008 Court divorce decision. Based upon the above events, the Surrogate in Kelly found that the decedent was divorced at the time of his death.

As is common in many divorce situations, divorcing parties provide in their settlement or separation Agreements that each waives or relinquishes rights in the others’ assets and property including insurance policies and retirement benefits. Problems arise where, despite the waiver of rights, the name of the divorced spouse is not changed or deleted as a beneficiary on the insurance policy or retirement account. Surrogate’s Court litigation then becomes necessary to determine the rightful payee of the decedent’s benefits.

In Kelly, the decedent’s former spouse remained named as a beneficiary of his federal retirement benefits. However, the parties’ Separation and Settlement Agreement specifically provided that the divorced spouse waived all rights to these benefits. The Court, after reviewing the parties’ divorce agreement and their apparent intentions, determined that the surviving divorced spouse waived all interest in these benefits and that the retirement funds should be paid to the decedent’s estate.

Estate Administration can be very complex and involve the review and analysis of many types of papers concerning the decedent’s affairs such as deeds, business agreements and divorce papers. All of these documents can impact estate settlement, estate taxes and distribution of assets to estate beneficiaries. I have assisted executors and administrators for over 30 years with all aspects of estate administration and the review of various documents required for successful and efficient estate processing.

June 27, 2012

Same-Sex Married Couples Still Need New York Estate Planning Help

by Jules M. Haas

A year ago, the State of New York joined a growing number of states by legalizing same-sex marriage. The LGBT community rejoiced in their victory, claiming equal status in their marriages and all the legal benefits that go along with it.

The legally-minded members of the LGBT community had long argued that sexual orientation discrimination was a considerable problem in medical emergencies and end-of-life scenarios. After all, in a marriage each spouse holds the power to make decisions on behalf of the other when the other is experiencing a medical emergency or is close to death. Absent a living will or alternative health care proxy, the heterosexual spouse is presumed to know what medical directives are appropriate, including whether to terminate life support measures.

It is not surprising that, before the same-sex marriage bill, disputes arose as to whether a same-sex partner could be entrusted with these decisions when no documentation existed. It was not uncommon for life-long partners to be left out of the decision-making process altogether, or even denied hospital visitation privileges because they were not the “spouse.” It is not difficult to imagine a hypothetical scenario in which young heterosexual newlyweds could be entrusted with these decisions for one another, while the 30-year monogamous homosexual partner of another patient could be denied access altogether.

The same-sex marriage bill has alleviated some of this concern. Once the bill was signed, LGBT couples gained the power to decide emergency and end-of-life scenarios for their partner if their partner did not have documentation drafted for that purpose. That being said, New York estate planning attorneys strongly caution against LGBT couples being lulled into a sense of security since the passage of the state marriage law. Living wills and a health care proxy are still essential documents, even if the LGBT couple is married.

Here’s why. Each state has its own stance on same-sex marriage. While New York has been part of the growing minority of same-sex marriage states for a year now, many states have not followed suit. As a result, if a same-sex married couple were to travel to another state in which same-sex marriage is not recognized, the emergency and end-of-life privileges that normally would attach at home may go unrecognized. That means that if there was an emergency situation, the same-sex spouse may be denied the spousal privilege to make the important medical and end-of-life decisions.

For this reason, New York City estate planners strongly encourage same-sex married couples to craft living wills and a health care proxy in spite of any spousal privilege they may enjoy within their own state. The living will can take the uncertainty out of the ailing person’s wishes in the event of a life-threatening medical emergency. The health care proxy can explicitly assign the healthy spouse as the decision-making authority if unforeseen circumstances occur.

Both documents are essential tools for the LGBT couple, even in spite of the civil rights advancements of the last several years. Take the fear and uncertainty out of an emergency or end-of-life scenario, and make sure power to decide remains in the rightful hands.

In addition to these issues, married New York same-sex couples are still denied a myriad of federal benefits. The Defense of Marriage Act defines marriage as between a man and a woman for federal purposes, creating a cascade of estate planning issues for married same-sex couples in our state. A full set of estate planning documents including a Last Will, Durable Power of Attorney and Living Trust should be considered and implemented so that all uncertainty regarding personal and property decisions are eliminated.

A qualified New York Trusts and Estate Lawyer can assist with reviewing and creating these documents as well as examining any additional issues regarding possible estate tax planning and Article 81 Guardianship for incapacity.