New York Probate Lawyer Blog
Estate planning is an important part of an overall financial plan. The New York Probate Lawyer Blog has published many articles discussing the various aspects of an estate plan. These items include a Last Will and Testament, Living Will, Revocable Trust, Health Care Proxy and Power of Attorney. Some of these documents, such as a Health Care Proxy and Power of Attorney, are usually referred to as advance directives.
Advance directives provide a lifetime plan for the handling of personal needs and financial management in the event a person cannot make these decisions for themselves. In many instances, the existence of advance directives may avoid the necessity of having to commence legal proceedings to obtain the judicial appointment of an Article 81 Guardian. I have represented many clients in New York Guardianship cases.
With regard to planning through the use of a Will, a major consideration should always be to anticipate every post-death issue. For example, thought should be given as to whether there may be a potential Will Contest. A well drafted Will, which is prepared by an attorney who supervises the Will execution, is afforded a number of presumptions as to validity. However, there is nothing to prevent an heir who has been disinherited from filing objections to a Will in the Surrogate’s Court. Clients often ask about including a no-contest clause in a Will. However, a no-contest clause only relates to possible forfeiture of a bequest if a Will is challenged. Where someone is disinherited, there is no penalty for filing a Will Contest. One solution to avoid a contested probate is by having all assets transferred into a Revocable Trust during a decedent’s lifetime. This alternative, however, does not avoid the possibility of a disgruntled distributee from challenging the validity of a trust based upon undue influence or other grounds such as lack of capacity.
Another post-death consideration is making certain that the terms of a Will provide for contingencies. A Will may be executed but not actually probated until decades later, after a death. Will provisions should include alternate beneficiaries in the event the primary beneficiaries predecease a testator. This should include alternate appointments of fiduciaries, such as Executors and Trustees. Of course, if circumstances change regarding a testator’s finances or beneficiary designations, a Will should be revised and re-executed periodically. Where Will provisions cannot be effectively enforced due to changed circumstances, the probate and estate settlement process can be complicated and delayed.
A recent Manhattan Estate case entitled Estate of Joan S. Klein, decided by Manhattan Surrogate Rita Mella on December 4, 2024, provides a good example of problems arising due to post-death change of circumstances. In Klein, the decedent’s Will provided for a disposition of assets to a specific charity. Unfortunately, at the time of death, the charity was no longer in existence. A proceeding was commenced in the Manhattan Surrogate’s Court whereby the Court was requested to use its cy pres powers under the Estates, Powers and Trusts Law to allow the disposition to be made to an alternate charity. Although the Court allowed the change, it is clear that events occurring after a Will is signed may dramatically affect an estate plan.
As can be seen from Klein, estate planning and the probate process in New York can be challenging. The assistance of an experienced estate lawyer can be essential. I have been handling estate cases for over forty (40) years. Do you have an issue regarding an estate, or even a guardianship matter? Call Me Now for a free confidential review of your matter. We offer reasonable and flexible fee arrangements and personal representation.
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.