Estates Litigation and Probate
The death of a loved one is difficult event to put it mildly. However, this difficulty will only be compounded if you do not find a competent and experienced Estates attorney. Our attorneys actively represent estates before the Surrogate’s Courts of Long Island and all five boroughs. We are experienced in estate litigation and assisting families during their difficult time. Probate does not have to be overwhelming. The staff at all the Surrogate’s Courts are some of the most experienced in the Court system and are eager to smoothly administer your estate. We can help.
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The balance of this section are some basic frequently asked questions about Wills and Basic Estate Planning everyone should have.
WHY DO I NEED A WILL?
A Last Will and Testament gives you the opportunity to set out exactly how you want your assets distributed. It can set forth who would care for your minor child and who should take care of funeral arrangements. It can eliminate disagreements between your relatives over who gets property and can prevent the possibility of. unintended relatives inheriting your property. In short, it allows you to provide or not provide for your loved ones according to your wishes.
DOES A WILL COVER EVERYTHING?
No, it does not. A will can only direct how assets that you own individually will be distributed. For example, if you own a piece of real estate with your spouse as husband and wife (or as “tenants by the entirety”), your spouse will automatically have sole title to the property after your passing. Likewise, with any property that is held as joint tenants with rights of survivorship.
IF I DIE WITHOUT A WILL, WHAT HAPPENS? DOES THE STATE TAKE MY PROPERTY?
If you die without a will, the State has a plan for you. New York State law has set up a pre-determined order of your relatives that will inherit your property if you don’t set out your own plan. For example, if you die leaving behind a spouse and no children, your spouse will inherit all of your assets regardless of any other relatives left behind. If you die leaving behind a spouse and children, your spouse ,will get the first $50,000.00 of your estate, plus half of the balance of your assets and your children will split the remainder of your assets equally. This isn’t very agreeable to most clients, because most wish that their spouse receive everything. If you die without a surviving spouse or child, then your assets will be split by your parents then siblings and then more distant relatives. If you pass on without any relatives and without a will providing otherwise, your assets will be taken by the State.
Furthermore, if you die without a will, you don’t have a say as to who will be the executor of your estate. The executor is the person who carries out your directions in the will. Without a will, the court will appoint an administrator. An administrator has essentially the same job as an executor, but carries out the State’s plan for distributing your assets. The administrator is usually a family member, normally your spouse. If no family member steps forward to be the administrator, the job will most likely be performed by the Public Administrator’s Office.
WHAT ARE OTHER BENEFITS OF HAVING A WILL?
A well drafted will and estate plan can significantly decrease the estate tax burden. Even though the Estate Tax, or “Death Tax” as it is often called, is being “phased out”, couples can benefit from proper use of using their “applicable credit”, or the amount which an individual may pass free of Estate and Gift Taxes. If not properly preserved, the “applicable credit” can lapse. Practitioners often use what is called a “Credit Shelter Trust” to preserve the “applicable credit” of the first spouse to die. This can be done in a manner that is least restrictive to the surviving spouse.
Overall, it is very advisable to have a will drafted and executed. It will save your family time and aggravation and it will give you control over your assets and the way they are distributed. If you have somewhat of a substantial estate, it is even more important to have a will, for with good planning you can save your family a lot of money in estate taxes. If you already have a will, you should have it reviewed by an attorney periodically, or when there is any major change in your life or in your estate. All in all, no matter what the size of your estate, it is always advisable to consult with an attorney as to your best options.
WHAT IS A HEALTH CARE PROXY, AND WHY DO I NEED ONE?
A health care proxy is a document executed by you in which you appoint a representative, or “proxy”, to make health care decisions for you. This document must be executed while you have the capacity to understand the nature of the document. In other words; you must be of sound mind when you sign the health care proxy for it to be effective.
If you do not have a health care proxy and at some point in the future whether through illness or accident you are unable to make major medical decisions for yourself with regard to health care a guardianship proceeding may have to be brought on your behalf. A concerned family member, friend or agency involved can petition the court for a guardian to be appointed to make decisions for you. A guardianship proceeding is in front of a Judge. The person who petitions the court has an attorney, the court appoints an attorney to investigate the matter and an attorney may be appointed for you. If the guardianship is granted all of the costs and the majority of attorneys fees will come out of your estate. The costs and fees can be in the thousands of dollars. By executing a health care proxy with a qualified attorney now, it could save your family and friends the time and expense involved with a guardianship proceeding. When executing a health care proxy, it may be prudent to also execute a power of attorney.
A “POWER OF ATTORNEY” IS AN INSTRUMENT THAT SCARES A LOT OF SENIORS, WHY DO I NEED IT? WHOM DO I CHOOSE AS MY AGENT?
A power of attorney is a very important document to have as part of a complete estate plan. Should any event or illness occur in your life that leaves you incapacitated the agent that you appoint has the power and authority to take care of all of your finances. Clients often say to me “We own everything jointly, so there’s really no point.” Not true. Very often, when one spouse enters a nursing home, the well spouse wishes to sell the couple’s home. If the couple owns the house jointly and the ill spouse doesn’t have the capacity to sign a contract of sale and subsequent deed, a guardianship will have to be brought on the ill spouse’s behalf. As discussed earlier, the costs associated with this guardianship (court filings, attorney’s fees) can run into several thousands of dollars, plus the time and aggravation of having to go to court to manage property that belongs to you and your spouse. Therefore, it is essential to plan and to appoint an agent who you trust, i.e. your spouse or child.
What scares many clients is the possibility of a power of attorney being misused. A solution to this problem is to have your attorney retain the power of attorney for safe keeping with instruction to only release it upon your instructions or if your subsequent incapacity is confirmed. Furthermore, the agent that is appointed cannot make gifts to him or herself unless you specifically authorize it.
WHAT IS A LIVING WILL?
The Living Will developed quite a few years ago from lawsuits initiated by families who sued medical institutions for the right to put loved ones to rest when there was no reasonable hope of recovery. Because of so many advances in medical science, doctors are able to keep the body alive even if the brain is not functioning. The Living Will is not a will at all, but rather a statement from you that states that if there is no reasonable expectation of recovery, you wish to die with dignity and free from pain. Some lawyers believe that a Health Care Proxy is enough and others do not. Each situation is different and depends on whether you name successor agents and whether the agent(s) you name are truly aware of your wishes
REVIEWING YOUR ESTATE PLAN
As clients leave my office after executing a will or a trust, the statement is often made, “well, at least I never have to look at this stuff again.” No, no no! All the work and time you invest into putting together an estate plan that protects you and your heirs should not be gambled with.
Periodically, you should review your documents to see if they still reflect your goals. In addition, you should review your finances and see that the plans you have made still fit in with the resources you have.
Practically speaking, you should review your estate documents (will, trust, power of attorney, health care proxy, living will) once every two years with your estate planning attorney. Why? Well, your health care agent may have moved, an heir may have passed away, items bequeathed to a loved one may have been lost, there may have been a divorce in the family, new grandchildren may have been born, etc. A lot can change in a couple of years.
You have spent time and effort to get things in order and it makes good sense to spend a few hours every two years to keep things that way.