New York Probate Lawyer Blog
New Yorkers, as well as people throughout the world, are dealing with the health and financial effects of the COVID-19 pandemic. As in many past emergency and life-changing situations, thoughts are focused on a person’s future well-being. In particular, having practiced in the New York trusts and estates and estate planning area for 40 years, I have encountered similar environments created by events such as 9/11 and Hurricane Sandy.
This article is meant to provide some reassurance and guidance going forward. As I have talked about in many posts in the New York Probate Lawyer Blog, preparing an estate plan is important. Such a plan, which should include advance directives, provides a documentary guide for the disposition of assets upon death and for life-time, health care and financial management. These documents include a Last Will and Testament, Living Will, Health Care Proxy, Living Trust and Power of Attorney.
If such a plan has not been instituted, the time to consider and implement these papers can take place going forward. If there is an emergency situation call my office now and we can attempt to assist.
Additionally, there are some facts that might be helpful and may alleviate some anxiety until more formal planning is implemented. Here are a few items to consider.
- A Last Will controls assets that are in a person’s name alone. Property that is owned jointly with another person or which has a named beneficiary such as a life insurance policy or retirement account are paid directly to the surviving named beneficiary. Thus, even if there is no Will, many assets may pass directly to a person’s beneficiaries without the need to probate a Will.
- In the event there is no Will, New York Estate laws provide that a person’s estate passes to his closest living next of kin such as a spouse, children, parents or siblings. These provisions are contained in Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” In many situations, these are the same beneficiaries that would be named in a Last Will. While it is best to have a Will that clearly sets forth the full disposition plan, intestate distribution may suffice.
- A Health Care Proxy allows a person to designate another individual to make healthcare decisions in the event he is incapable of doing so. When a Health Care Proxy has not been executed prior to a health care necessity, many of the medical facilities have the form available to be executed upon admission. If this is not possible, New York has enacted the Family Health Care Decisions Act. This statute allows a family member or friend to make health care decisions for someone who is in a hospital or nursing home and who is unable to make these decisions for himself. The statute provides a list of individuals with priority who can make the medical decisions such as a legal guardian, spouse or child.
- When a person becomes incapacitated and can no longer provide for his own property or personal care decisions, it is possible to have a Guardian appointed by the Court under Article 81 of the Mental Hygiene Law. A Guardianship proceeding may be avoided if the individual had executed advance directives such as a Power of Attorney or Health Care Proxy. If these documents are not available, than a Guardianship may be necessary. The Guardianship Court can also provide emergency powers to an applicant when necessary.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to Guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation. I have assisted clients with estate plans and probate and Guardianship matters for 40 years. Call me now if you have a question or concern. We extend hope that all will remain well and safe throughout these difficult times. We provide reasonable and flexible fee arrangements and personal representation.