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Wills

LAST WILL AND TESTAMENT

A Will is a legal document that directs how to distribute property upon death. A Will also nominates people for important roles, such as executor of the will, guardian of minor children, and trustee.

Here are the top seven reasons all New Yorkers should have a Will:

1)  You decide how your estate will be distributed. A Will is a legally binding document that lets you determine how you would like your estate to be handled upon your death. If you die without a Will, there is no guarantee that your intended desires will be carried out. Having a will helps minimize any family fights about your estate that may arise, and also determines the “who, what, and when” of your estate.

2) You decide who will take care of your minor children. A Will allows you to make an informed decision about who should take care of your minor children. Absent a Will, the court will take it upon itself to choose among family members or a state-appointed guardian. Having a Will allows you to appoint the person you want to raise your children or, better, make sure it is not someone you do NOT want to raise your children.

3) To avoid a lengthy probate process. If you have a Will, you will almost certainly have to go through probate. The process will be much faster than if you died without a Will. Having a Will speeds up the probate process and informs the court how you’d like your estate divided. If you die without a Will, the court will decide how to divide estate without your input, which can also cause long, unnecessary delays.

4)     You decide who will wind up the affairs of your estate. You name an executor in your Will. Executors make sure all your affairs are in order, including paying off bills, canceling your credit cards, and notifying the bank and other business establishments. Because executors play the biggest role in the administration of your estate, you’ll want to be sure to appoint someone who is honest, trustworthy, and organized (which may or may not always be a family member).

5) You can disinherit individuals who would otherwise stand to inherit. Most people do not realize they can disinherit individuals in their Will. Because Wills specifically outline how you would like your estate distributed, absent a Will your estate may end up on the wrong hands or in the hands of someone you did not intend (such as an ex-spouse with whom you had a bitter divorce).

6) Because you can change your mind if your life circumstances change. A good reason for having a Will is that you can change it at any time while you’re still alive. Life changes, such as births, deaths, and divorce, all create situations where changing your Will are necessary.

7) Because tomorrow is not promised. Procrastination and the unwillingness to accept death as part of life are common reasons for not having a Will. Sometimes the realization a Will is necessary comes too late, like when an unexpected death or disability occurs. To avoid the added stress on families during an already emotional time, it is wise to draw up a Will before it’s too late.

Important Notes

Our office charges a predetermined flat fee for the preparation and execution of your Will and other documents such as a Power of Attorney and Health Care Proxy.

Trusts

Trust Administration & Probate

A Revocable Living Trust is a legal entity created to hold your assets. It is a sort of “rulebook” for how your assets will be distributed when you are gone. It is not a Will. A Revocable Living Trust is used in conjunction with a “Pour-Over Will”, which will do things like name your executor, or guardians for your minor children.

It is very important that, after the Trust document is made, any property to be covered by the Trust is properly transferred into the Trust. If you choose an estate plan with us that includes a Revocable Living Trust, we provide you with all the tools you need to make these transfers yourself (we even have a system in place to follow up until it’s done!)  And don’t worry – if you simply don’t have the time to do it yourself, we can transfer the assets for you.

Important Notes

The vast majority of our clients choose to prepare a Revocable Living Trust in lieu of a Will so their heirs are not burdened by the cost, time, and publicity of Probate.

Heath Care Proxies

A Healthcare Proxy is a document that sets out your wishes for health care if you are ever too ill or injured to speak for yourself. Healthcare Proxies allow you to inform medical professionals and family members about what kind of care you want when you can’t communicate those wishes yourself. Your directive can include things such as where you want to receive care, instructions about artificial nutrition and hydration, whether you want to be an organ donor, and what your funeral arrangements should be.

Guardianship

If you are a parent of minor children, you know there is nothing in the world more important than making sure they are raised by the people you want should something happen to you – – even money! I often say to my clients that young families actually need a Will MORE than elderly people, because for the next 18 years, nothing is more important that making sure your children are taken care of by the right people.

Probate

Probate court is a specialized type of court that deals with the property and debts of a person who has died. The basic role of the probate court judge is to assure that the deceased person’s creditors are paid and that any remaining assets are distributed to the proper beneficiaries.

When a person dies with a Will, the property is distributed to the people or organizations the Will designates to receive it. To probate a will, the court must also make a determination that the will is valid. If someone contests the validity of the will, the court will decide the matter. In all states, even if there is a will, a surviving spouse is entitled to a certain share of the property. This is called the surviving spouse’s elective share and the amount of the share varies by state.

The costs of probate include, among other things, court filing fees, costs for publishing notices in newspapers, and attorney and executor fees. If the estate is complex, there may also be fees for an accountant. Fees for a probate attorney may be based on an hourly rate, a percentage of the value of the estate, or a combination of these.

A probate can take months, or even years, to complete. For an average modest estate, it can take from six months to two years. The longer it takes, the more it costs. If any heirs contest a will, things get more time-consuming and expensive.

Probate makes the deceased person’s financial situation a matter of public record. This includes the nature and extent of the assets, the person’s debts, and who will get the assets.

For fairly simple estates, with or without a Will, it may be possible to go through probate without a lawyer. However, many estates are more complex than they initially appear. The guidance of a qualified probate attorney can get you through the process quicker, help deal with problems that may arise, assure the taxes are handled properly, and ease your stress.

Due to much of what is explained above, many people seek ways to either avoid probate, or to minimize the amount of their property that will be subject to probate. This can be accomplished by restructuring the manner in which property is held and holding assets in a Revocable Living Trust.

Important Notes

The vast majority of our clients choose a Revocable Living Trust in lieu of a Will to ensure their heirs are not burdened by the time, publicity, and expense of probate court.

Trust Administration

Many people elect to establish a Revocable Living Trust as the centerpiece of their estate plans instead of just a Will so they can avoid a probate of part or all of their estates upon their deaths. If the legal title to the property is held by the trustee of his or her trust, the administration and distribution of that property upon the individual’s death is handled simpler, faster, and at much less expensive than if that property had to be probated. A trust administration is NOT a court-supervised process, yet its ultimate goal is also the transfer of property from an individual who has died (the “decedent”) to that individual’s beneficiaries who are identified in her Revocable Living Trust

Costs to administer a trust are generally much lower than those associated with a probate. Probate fees include the compensation paid to the executor of the estate and to the attorney whom the executor retains to assist her with the administration of the estate. There are no court filing fees or fees paid to probate referees to appraise the property in the trust.

In general, the probate fees amount to about 5% of the gross value of the probate estate for ordinary services. By contrast, the fees to administer a trust with the same property at the same value are usually less than half as much as would be due were that property to be probated.

Important Notes

The vast majority of our clients choose a Revocable Living Trust in lieu of a Will to ensure their heirs avoid the time, publicity, and expense of probate court.

Power of Attorney

What if an accident or illness — or simply the effects of aging — made it impossible to manage your financial affairs? No one likes to consider such grim possibilities, but the truth is that almost every family will face this kind of difficulty at some point. While Powers of Attorney can’t prevent accidents or keep you young, they can certainly make life easier for you and your family if times get tough.

Pour-Over Will

A Pour-Over Will is a Last Will & Testament that serves as a safety device to capture any assets that are not transferred to or included in a Living Trust.

Asset Protection

A trust fund is a legal entity established for the purpose of holding assets for the benefit of specific people. Children are frequent beneficiaries of trust funds, because trust funds can safeguard your assets and make sure they are used for your children’s stewardship. One of the primary benefits of having a trust is that the assets held within it are protected from legal claims. With the possible exception of retirement savings, any assets that you have are subject to seizure by courts and creditors. However, assets held in a trust are legally protected.

One of the biggest advantages of a trust is that you have control over how the money in the trust is dispersed to the beneficiaries. You can have it done in a lump sum, or you can have it parceled out over a period of several years. You can even set it up as an annuity to make payments to the beneficiary on any basis that you choose – monthly, quarterly, semiannually, or annually.

You can set the trust up to be dispersed when the child reaches a certain age, say 25, 30, or even 50. That will allow you to delay turning the assets of the trust over to your child until they reach an age at which you believe they will be financially responsible. You can even choose to make monthly or annual payments up to a certain age, upon which the remaining balance of the trust will be issued to the individual in a lump sum.

Though we may not like to think about it this way, if you have a child who has a drug problem, a gambling addiction, or no ability to spend money wisely, putting restrictions on the reasons for which it will be dispersed can be the perfect way to guarantee that the money will be available only for expenditures that will help to improve your child’s life.

Important Notes

Many of our clients choose to leave their children’s inheritance in an Asset Protection Trust to protect it from unwise spending, divorce, bankruptcy, or lawsuit.