Articles Posted in Estate Planning

Estate Planning in New York involves the preparation of a number of different papers. Included among these documents is a Last Will and Testament. The New York Probate Lawyer Blog has posted many articles concerning the importance of preparing a Last Will as well as the need for the Will to clearly express a person’s intentions.

When a person takes the time and effort to prepare a Will it is essential that the document clearly provide the benefits that the creator wants to put into effect upon death. A New York Estate attorney typically works closely with his clients to fully understand the assets and estate plan that is to be incorporated into the Will document. Continue reading

New York Estate Settlement can be complicated by many different factors.  After a person dies a fiduciary such as an Executor or Administrator will be appointed to handle estate affairs.  The New York Probate Lawyer Blog has provided numerous posts discussing the procedure to appoint an estate fiduciary.  In short, where a decedent leaves a Last Will, the Will is submitted to the Surrogate’s Court for probate.  When the Will is admitted to probate an Executor is appointed who is responsible for estate settlement.

When a decedent does not have a Last Will he is deemed to have died intestate. An Administrator is appointed for intestate estates. Typically, the Administrator is one or more of the decedent’s next of kin called distributees.  The distributees, according to their relation to the decedent, have priority to be appointed as an Administrator. Continue reading

New York Estate Lawyers know that it is important for individuals to create plans that reflect their intentions. An estate plan can include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust.

It is important that when creating these documents, an individual give serious consideration to the provisions that are made in each instrument. For example, when preparing a Power of Attorney, a person should be careful to designate an agent that is trustworthy and that the agent be given powers that are necessary and restricted as the situation or circumstance may require. It may not always be the best course just to fill out the standard Power of Attorney form with all of the powers provided and sign it without regard to the possible consequences of such act. Continue reading

The estate of a decedent can be affected by many different pre-death and post death events. For example, the decedent may be involved in a lawsuit during life that is still ongoing at the time of death. It will then be up to the estate Executor or Administrator to take over the lawsuit to its conclusion. Depending upon the nature of the case, the lawsuit may result either in a liability to the estate or an asset if the estate recovers money.

New York Probate Attorneys are familiar with many other situations that can impact estate settlement. One such situation involves the marital status of the decedent at the time of death. Under the New York estate laws, a spouse of the decedent has certain rights. If a married person dies without a Last Will, Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 provides that the surviving spouse would inherit a share of the decedent’s estate. Also, it is not uncommon that a spouse is named as a primary beneficiary in a decedent’s Last Will and Testament. However, even where a spouse is not named in a Will, EPTL Section 5-1.1-A, entitled “Right of election by surviving spouse”, provides the survivor with the right to receive the greater of $50,000.00 or one-third (1/3) of a decedent’s net estate. Continue reading

Selecting the proper fiduciaries in estate planning is an important aspect of the planning process. When an individual creates a Last Will or Trust, the Executor or Trustee is the person who is given the responsibility to carry out the creator’s plan and protect the creator’s assets.

The fiduciary has many different responsibilities which include safeguarding and investing assets and paying income and principal to named beneficiaries. A person who is nominated and acts as an executor or trustee owes fiduciary duties to the beneficiaries. Sometimes the interests of the beneficiaries may be in conflict. For instance, an income beneficiary of a trust will want the trustee to invest in high income producing assets while a beneficiary who has an interest in the principal or trust remainder may want investments that produce lower income but higher long-term growth. The trustee must balance the interests of the beneficiaries and often is guided by the terms of the Will or Trust agreement regarding the manner in which he proceeds. Continue reading

Estate Planning for New Yorkers can be a very complex process.  When considering a testamentary plan, it is common to immediately think about estate taxes.  While such taxes are imposed in the form of New York State estate tax and the Federal estate tax, most estates are not subject to paying such taxes.

Earlier posts in the New York Probate Lawyer Blog have discussed the fundamental need to understand the nature and ownership of assets. A Last Will and Testament is going to control only the assets owned by a person in his name alone. Other assets that are owned jointly with persons with a right of survivorship are distributed to the surviving co-owners automatically upon the first party’s death. This is also true with assets that have designated beneficiaries such as life insurance and retirement accounts in the form of IRA’s and 401K’s. Continue reading

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. Continue reading

Estate planning in New York is essential to the proper administration of a decedent’s estate.  Creating an estate plan that includes a Last Will, Living Will, Health Care Proxy, Power of Attorney and possibly a Living Trust can facilitate the process by which assets are passed to family and friends and advance directives regarding health care can be carried out.

When engaging in the planning process it is essential that the technical and statutory requirements and estate rules are adhered to so that the papers and documents created are effective. When a Last Will is prepared and executed in a manner that is subject to dispute, a decedent’s estate can be the subject of a long and complicated Will Contest. Estate litigation is not uncommon when planning documents are unclear and confusing or are not completed according to the standards required by law. Continue reading

The rights of a surviving spouse to inherit from a decedent have been referred to in numerous articles in the New York Probate Lawyer Blog. When a person dies without a Last Will, a surviving spouse is provided by Estates, Powers and Trusts Law (EPTL) Section 4-1.1 with at least a fifty percent (50%) share of the estate. When a decedent leaves a Last Will, the general rule is that a surviving spouse cannot be entirely disinherited. EPTL 5-1.1-A entitled “Right of Election of Surviving Spouse” provides that a spouse is to obtain a share of assets equal to approximately one-third of a decedent’s net estate. Thus, if a spouse is omitted from a Will or disinherited in whole or part, the spouse can elect to receive estate assets equal at least to the statutorily required minimum.

It should be noted that inheritance by a spouse is given this protection while other family members do not receive these rights. Even children can be entirely disinherited. Also, the estate tax laws recognize the importance of spousal transfers. The Federal and New York estate tax rules allow a 100% marital deduction for all assets passing from a decedent to a spouse. Continue reading

Estate attorneys in New York are familiar with the many statutes and rules regarding the ownership of property.  One of the fundamental aspects involved in estate planning is knowing and understanding the manner in which a testator owns his assets.  As examined in many previous posts in the New York Probate Lawyer Blog, a Last Will typically only controls the disposition of assets that a decedent owns in his name alone.  Property interests that are held in joint tenancy or with a designated beneficiary such as a life insurance policy pass directly to the surviving joint owner or beneficiary upon a person’s death and do not become part of the estate subject to disposition by the terms of the Last Will.

In particular, in the case of real estate that is owned by a husband and wife, New York law creates a special aspect of ownership called a tenancy by the entirety.  This type of ownership essentially provides that when one of the spouses dies, the surviving spouse automatically becomes the sole and absolute owner of the property provided the parties remain married at the time of death. In view of these property rights, lifetime dispositions of one spouse’s interest in the property cannot interfere with or prevent the survivor’s right to become the sole owner upon the other parties death. Continue reading