Articles Posted in Estate Planning

Planning an estate in New York is very important. To begin with, if a person dies intestate (without a Last Will), the estate laws in Estates, Powers and Trusts law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate,” determine the heirs that receive the estate assets. Thus, a decedent’s intentions and desires may not be carried out.

Even when a Will is created there may be issues regarding its validity or interpretation. The Surrogate’s Courts are always dealing with estate litigation concerning Will contests. These cases may involve undue influence, lack of due execution and lack of testamentary capacity. The New York Probate Lawyer Blog contains many posts regarding contested estates and estate planning.

When a Will is created, one of the most fundamental considerations is the clear identification of the beneficiaries and the share of the estate they are to receive. Beneficial interests under a Will can be outright or in trust. Also, a designation may be in a specific amount, or a specific item, or in a share or percentage.

Estate Planning in New York can include the creation of a number of different papers such as a Last Will and Testament and Living Trust.  Also, a person may prepare a Durable Power of Attorney, Living Will and a Health Care Proxy.

At the outset of the drafting of these papers, it is important for the creator to fully ascertain the nature of his assets and the manner in which title to them is held.  Also, the creator should carefully consider his intentions so that decisions can be made regarding the dispositions to be contained in the documents.   The New York Probate Lawyer Blog has discussed these matters in earlier postings.

The creator’s goal is to clearly and explicitly set forth his intentions and desires regarding his assets and his beneficiaries.  A Will or Trust may contain specific gifts of a designated amount of money.  There may be dispositions that provide for a beneficiary to receive a certain percentage of an estate or fund.  Percentages are a good way to dispose of assets since it may be difficult to determine a person’s exact monetary estate at death which may not occur for many years after the estate planning papers are prepared.

Estate Planning in New York involves a number of items to be reviewed.  Most individuals initially approach planning by determining how their estate is going to be distributed.  Thus, decisions are made as to various bequests that are to be provided in a Last Will.  A simple bequest may be a specific dollar amount, say $5,000, to be given to a named individual.  There may also be a devise of a certain interest in real estate to a designated individual.  Other types of dispositions may include creating a trust for a minor child or a Supplemental Needs Trust for a person under a disability.  Also, there can be residuary dispositions to individuals or even charities whereby the balance of an estate is disposed of.

However, before the dispositions in a Will can be determined it is imperative to determine which assets are to pass under a Will as part of the probate estate.  The New York Probate Lawyer Blog has published many articles concerning estate planning and property ownership.  If an asset passes by operation of law, such as a joint bank account, or the asset has a beneficiary designation such as life insurance, then the asset is not controlled by the Last Will.  As a result, there may not be sufficient assets passing under a Will to satisfy the various bequests and dispositions set forth in the Will terms.

As can be imagined, it is very important to understand how assets are owned so a determination can be made as to how they are to be disposed of at death.  This issue was recently shown in a recent Manhattan estate case decided by New York Surrogate Rita Mella on May 23, 2019, entitled in Matter of Estate of Watson.  This case involved a cooperative apartment owned by two individuals, Watson and Vicic, life partners.   They died within a year of each other and a dispute arose between their estates as to the ownership of the cooperative and entitlement to the net sales proceeds.  Watson died intestate without a Will and Vicic died testate with a Will.

Planning an Estate in New York involves many considerations.  At the outset of the process, particular care must be taken to understand the nature of the assets to be covered by the estate plan.  Assets that are owned in an individual’s name alone would be subject to the terms of a Last Will.  Such assets could also be transferred into a Grantor or Living Trust.  On the other hand, assets that are owned jointly or which have designated beneficiaries would pass automatically on death to the survivor or beneficiary.  Thus, these items may not be controlled by a Will or Trust.   The New York Probate Lawyer Blog has discussed the importance of identifying ownership rights in property in numerous articles.

Another critical consideration in any type of plan is the selection of fiduciaries to manage and administer the fund that comprises an estate or trust.

Most often, the selection of an Executor or Trustee is an easy decision.  A close family member such as a spouse or child is typically the first person to be designated.  However, there are always considerations as to whether such persons have the appropriate qualifications to serve in such capacity.  There may be health or medical issues that might interfere with a person’s ability to act as a fiduciary.  Also, issues such as a conflict of interest may arise particularly where the proposed fiduciary may have some direct or indirect interest in how the estate or trust is administered or invested.

Estate planning in New York can be provided through a number of different documents.  First and foremost, a Last Will and Testament sets forth the various provisions that a testator desires regarding the disposition of his estate.  Another important estate planning device is a Revocable Living Trust.  This type of trust allows a person to place assets in the trust during life and then have them distributed in a certain manner upon death.  The essential element of such a trust is that it is revocable and the creator can modify it or revoke it.

Looking at the various estate planning tools, the overriding element is that a person who creates these documents is able to direct the disposition of assets after death.  Thus, a person’s desires and intentions can be memorialized and carried out by his fiduciaries such as Executors and Trustees.

Since these documents reflect a person’s intentions, it is important that the person creating them make his desires clearly known.  Estate lawyers assist their clients so that there is no ambiguity regarding the names of beneficiaries and the assets or interests in the estate that are to be distributed.  The New York Probate Lawyer Blog has published many articles regarding Wills and planning an estate.  When issues arise regarding the validity or meaning of a Will, estate litigation in the Surrogate’s Court can arise.

One of the most essential aspects of every trust and estate is the fiduciary who is in charge of its affairs. The fiduciary may be an Executor, Administrator or Trustee depending upon the type of situation. However, in all cases the fiduciary has many powers and obligations.

Estates, Powers and Trusts Law (EPTL) Section 11-1.1 entitled “Fiduciaries’ powers” provides a list of the powers that fiduciaries can exercise. For example, an Executor may need to: (i) take control over property; (ii) open a bank account; (iii) sell property; (iv) defend a lawsuit; (v) or commence a legal proceeding to protect the interests of a Trust or Estate. The New York Probate Lawyer Blog has discussed many situations regarding fiduciaries’ powers. Continue reading

It is important to complete estate planning papers so that a person’s intentions and desires are clearly set forth. The list of documents to plan an estate can include a Last Will and a Living Trust. When an Estate Planning Lawyer prepares these papers it is important to provide the attorney with all family and asset information so that the documents that are prepared are complete and accurate.

For example, it is necessary to review all asset information. The New York Probate Lawyer Blog has published many articles discussing the different issues associated with various assets for planning purposes. If an individual owns joint assets or assets where there are designated beneficiaries, these items typically are not controlled by the terms of a Will. These types of assets pass directly to the joint owner or the named beneficiary. Continue reading