Estate planning is the process of planning in advance for how your property will be distributed upon your death. It is also planning for the possibility that at some point in the future you may be incapacitated by a serious illness or accident that leaves you unable to communicate your wishes regarding your healthcare and unable to take care of your finances and other personal business. Furthermore, an important part of estate planning is protecting the assets that you have worked so hard for for years and would like to use in the manner of your choosing. In other words, estate planning is a way to maintain control over the many different aspects of both your personal future and the future of those about whom you care the most. Because estate planning is different for each person and is based on each person's individual and family needs, it is important to contact an experienced Bronx Estate Lawyer who will help you implement a plan tailored to your specific needs.
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The importance of will is that with a will you are in control over what happens with your property after your death. You can decide who gets what. Without a will you have not control. New York State decides who gets what.
- You can distribute your assets disproportionately. With a will you can distribute your assets in a disproportionate manner. Suppose you have a wife and 3 kids. You can leave your wife 50% of your estate. You can choose to leave child #1 only 5% of your estate, because you bought him a house; you can leave child #2 10% of your estate because you gave her a large sum of cash over the years; and you can leave child #3 35% of your estate because you did not give her any financial assistance.
- You decide who will take care of your minor children. A will allows you to state who should take care of your minor children if neither you pass away while they are still minors and the other parent is also not able to care for them. Without instructions left in your will the court will name a guardian who may or may not be a relative. Even if the court selected guardian is a relative that person may not be who you would have selected.
- You decide who will wind up the affairs of your estate. An important part of an executor's job is to wind up your estate and distribute your assets according to your wishes. This job is best done by someone who knows you well, who knows your family, and who you trust. Without a will, the court will appoint an administrator.
- You can disinherit individuals who would otherwise stand to inherit. While most people think about a will as a way of leaving property to the people of your choosing, it is also a way to make sure people you do not want to leave anything will not receive your property. Without a will the state has strict rules as to who will receive your property. You will have no control. With a will not only will you be able to state who gets your property, you can state your intention to specifically leave out a relative and state your reasons. Doing this will also help prevent a successful will contest brought by a disinherited heir.
- Make gifts and donations. With a will not can leave property to non-relatives. For example, if you can leave a gift to your best friend, or to your loyal assistant who has worked for you for over 20 years. You can also leave property to you college or to a charitable organization. Without a will your property will pass to your heirs under the rules of intestate succession. These laws only allow relatives to inherit. Your best friend, college and favorite charity would get nothing.
- You can change your mind. Once you make a will you can always change it. No property transfers to beneficiaries until after you pass away. Until then, you can change your will as much as you choose. In fact, it is a good practice to review your will and other estate planning documents every few years to make sure that it is still consistent with your wishes. For example, you make a will that includes a $10,000 gift to your college. A few years later your salary has double so that you decide to increase the gift to $25,000. You can easily change your will using a codicil. A codicil is an amendment to a will. As long as you have mental capacity, you can amend your will or write an entirely new will at any time.
- A will is flexible. In addition to being able to change your will at any time, it is flexible enough to allow you to leave property that you did not specifically mention in your will, including assets that you acquired after executing will, without having to amend your will. You can do this through a clause called a residuary clause. A residuary clause is a provision in a will that disposes of property not expressly addressed by other provisions in your will. For example, after you make your will you purchase a new car. Since the car is not specifically mentioned in your will, if you still own it upon your death, the car would be part of your residuary estate. A residuary clause also serves to dispose of property that is part of a bequest that failed. For example, if in your will you leave your aunt your jewelry, but your aunt predeceases you, the jewelry becomes part of your residuary estate. Without a residuary clause, the assets not left specifically to anyone would pass to your heirs through intestate succession.
New York law has very specific requirements that must be followed in order for a will to be valid.
- Minimum Age. You must be 18 years old or older. NY EPTL § 3-1.1
- State of Mind. You must be of "sound mind and memory" at the time the will is executed. NY EPTL § 3-1.1. This means that you must understand what it means to prepare a will, the nature and extent of the property you own, and who your heirs are. In other words, you must not be mentally incapacitated.
- Signatures. You must sign the will at the end. If you sign it anywhere else, probate may be delayed, and the court may ignore whatever is after your signature. In addition, your signing of the will must be witnessed by at least 2 people. Your witnesses must also sign your will and should also write their addresses along with their signatures. A person who is a witness to you signing your will should not also be a beneficiary. While it is not against the law, for a witness to also be a beneficiary, the law does state that any gift to a witness is void unless there are also at least two disinterested witnesses. NY EPTL § 3-2.1. If you are physically unable to sign your name you may direct another person to sign for you in your presence. That person must state on your will that he or she signed for you and must also sign the will. The person who signs for you cannot also be one of the 2 required witnesses.
There are two types of wills that are valid even though they do not meet each of these general requirements: holographic wills and nuncupative wills. A holographic will is handwritten by the testator, but is not witnessed. A nuncupative will is oral and is witnessed by at least 2 people. Holographic and nuncupative wills are only valid if made by a member of the armed forces during a time of conflict, someone accompanying the armed forces, or a mariner who is at sea. They are only valid for a brief period of time. When made by a member of the armed forces or someone accompanying the armed forces, holographic and nuncupative wills become invalid 1 year after the person is not longer with the armed forces. When made by a mariner at sea, they become invalid 3 years after made. If you have made a holographic or nuncupative will, it is a good idea to make a new will that complies with the general requirements of New York law.What is a trust?
Like a will, a trust is a tool used in estate planning that you. You, as the person who created the trust, are referred to as the grantor. A trust holds property that you transfer to it, and is managed by a trustee appointed by you, according to the terms you set out in the trust document.What are the different types of trusts?
There are several different types of trust. The type of trust that you should create depends on the purpose of your trust.
- Revocable Trust. If you create a revocable living trust, you can terminate it or change it at any time during your lifetime as long as you are mentally competent.
- Irrevocable Trust. An irrevocable trust is trust that cannot be changed. In other words, the grantor has no control over the property in the trust. Irrevocable trust are sometimes used as asset protection tools since property transferred to a irrevocable trust is deemed to be owned by the trust, not the grantor and the grantor gives up control over the property. Also, because the assets in the trust are no longer yours, you will not have pay income tax on any income produced by the trust property.
- Living trust. If you create and fund a trust during your lifetime it is called a living trust. Typically a living trust is also revocable, meaning that the grantor retains the power to change or terminate it at any time. However, when you pass away, your living revocable trust becomes irrevocable and cannot be changed.
- Testamentary Trust. A testamentary trust, also referred to as a will trust, is a trust that you created through your will. It does not go into effect until you pass away and your will goes through probate. For example, in your will you may leave part of your estate to each of your children. At the time you make your will your children are all under 10 years old. Because your children are too young to manage any property that you leave them, you can add a provision in your will that whatever your children inherit is to be distributed not directly to your children, but to a trust. Your children will be the beneficiaries of the trust. The terms of the trust could provide that as your children reach 18, they funds in the trust will be distributed to them.
- Funded Trust. A funded trust is a trust that has property. A trust can be funded with cash, stock, real estate or other valuable asset. A trust can be funded by the trustor during his or her lifetime or after death.
- Unfunded Trust. An unfunded trust is a trust without assets. Some trusts are created but remain unfunded until after the grantor's death.
Estate planning is not just about taking care of loved ones. It is also about planning for your personal and financial security in the event you ever become incapacitated.
- Durable Power of Attorney for Finances. A durable power of attorney is a legal document that allows you to give another person, called your "attorney-in-fact," the authority to make financial decisions for you when you are unable to make them yourself. Oftentimes a spouse is given such a power of attorney. However, you can name whomever you want as your attorney-in-fact. It is wise to name someone who is trustworthy and who you know well.
- Health Care Proxy. With a health care proxy you can designate another person, known as your health care agent, to make medical decisions on your behalf in the event that you become incapacitated and incapable of making those decisions.
- Living Will. A living will is a legal document in which you document the treatments you wish to have and the treatments you do not wish to have during the final stages of your life.
Having a comprehensive estate plan will afford you a great deal of comfort as you will have provided for your family needs as well as your own future needs. Such an estate plan may have several components such as a will, trust, living trust, health care proxy, and durable power of attorney. However, none of these documents will be effective if they are poor drafting and executed. The staff at Stephen Bilkis and Associates has years of experience working closely with New York clients to draft a variety of estate planning documents. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.