New York Estate Planning
Estate planning is figuring out what will happen to your property after you pass away. It is ensuring that your assets are passed to your beneficiaries in the most efficient way possible. Estate planning can be a lot more than figuring out who will get your assets. It is also preparing for the possibility that one day you may become incapacitated so that you are unable to take care of your finances or make decisions about your health care. It is protecting your assets and minimizing your tax liability, as well as planning for the needs for a disabled relative. If you are contemplating developing an estate plan contact an experienced New York estate planning lawyer who will not only be able to help you create a will that is consistent with your wishes, but who will also explain to you other estate documents that you may need to help you reach all of your estate planning needs.Last will and testament
A will is the document that virtually every estate plan should include. In New York anyone who is at least 18 years old and is of sound mind and memory can make a will. A will allows you to set forth how you want your probate assets distributed after you pass away. Without a will your property will be distributed to your next of kin according to the laws of intestate succession. This means that your property may end up being given to people you would prefer not have it. Depending on your goals and the amount of your estate, your will may be fairly simple or it could be very complex. However, at a minimum, a will can accomplish the following:
- Gifts. Your will can set forth how you want your property distributed upon your death. Only property that is classified as probate property can be gifted through a will. Such property includes personal property such as clothing, jewelry, vehicles, appliances, furniture, and collectibles. Financial accounts such as bank accounts and brokerage accounts is also probate property. Depending on how it is titled, real estate can also be gifted in a will.
- Executor. An executor is the person you name in your will who is charged with the responsibility of ensuring settling your estate. The job of an executor is significant. The executor must manage all probate property, pay estate expenses and debt, respond to claims, address disputes, and ultimately distribute estate assets according to the terms of the will. While the testator can name in the will the person he (or she) wants to serve as executor, before the executor has legal authority to act on behalf of the estate the Surrogate’s must appoint the person. The Surrogate’s Court will only appoint someone who is qualified.
- Guardian. If you have minor children, you can name in your will the person or persons who you want to raise them in the event that you pass away while they are still minors.
- Children's Property. In addition to naming a guardian for your minor children, you also need to address who will manage the assets that your minor children may inherit. The person you name to manage your children's property could be the same as your children's guardian, or it could be another person.
Depending on your circumstances and goals, there are different types of wills that you can execute with the help of an experienced New York estate planning lawyer.
- Pour over will. A pour over will is a will that is used when the estate plan includes a living trust. Instead of the will including a list of clauses stating who should get the various portions of your estate, a pour over will provides that any assets that are in your estate at the time of your death and have not be transferred to your trust during your lifetime will automatically transfer to your trust upon your death. The trustee can then distribute the property to the trust's beneficiaries according to the terms of the trust.
- Holographic will. A holographic will is a last will and testament that is handwritten by the testator, but is not witnessed. Typically the Surrogate’s Court would not probate a holographic will because it would be difficult to prove that it is authentic. There is a statutory exception. If a holographic will is made by a member of the armed forces during a timed of armed conflict, someone who is accompanying the armed forces, or someone who is a mariner at sea, it will be deemed valid. NY EPTL § 3-2.2
- Nuncupative will. Like a holographic will a nuncupative will is one that is not executed with the formalities typically required by New York law. A nuncupative will is an oral will. It is not written, but is spoken in the presence of at least 2 witnesses. However, under New York law a will must be written. Under typical circumstances a nuncupative will would be not be valid and would not be probated. However, like a holographic will, a nuncupative will will be probated only if it was made by a member of the armed forces during a timed of armed conflict, someone who is accompanying the armed forces, or someone who is a mariner at sea, it will be deemed valid. NY EPTL § 3-2.2.
- Reciprocal wills. Reciprocal wills are two wills made by two testators that mirror each other. Typically they provide that each testator leaves the other testator all of his (or her) estate. For example, a reciprocal will might provide: “If I die first everything goes to my spouse. If my spouse has already died, my entire estate goes to my children.” Reciprocal wills are commonly made by spouses or significant others, but can be made by anyone who feels a need to coordinate their estate planning such as business partners or siblings.
- Joint will. A joint will accomplishes the same goal as reciprocal wills. It is a single will that is created by two people and provides that that each person would get the survivor's estate. Like reciprocal wills, joint wills are typically created by spouses.
- Codicil. A codicil is not a type of will, but an amendment to a will. If you need to change your will because of change in your family or a change in your financial position, there are two options. You can execute a new will, or you can execute a codicil.
Another estate planning tool is a living trust. Similar to a will, with a living trust you can leave property to the people of your choosing. However, there are notable differences between a will and a living trust. Living trusts are funded during the lifetime of the testator. This means that while you are still living you would create the trust and transfer your property to it. On the other hand, with a will, while you create a will during your lifetime, it does not become effective until after your death. The beneficiaries of your will do not receive title to testamentary gifts until after the testator’s death.
In addition, assets transferred to a living trust are not subject to probate, while testamentary gifts are. This is significant because probate takes time. In fact, probate can take months. During this time, beneficiaries generally will not have access to their distributions. Before asset distribution can be made, the executor must pay estate debts and expenses. If the estate has significant debt in relationship to its assets, distributions may be reduced.
As experienced New York estate planning lawyer will explain, it is important to understand that there are different types of trusts. A living trust is not the same as a testamentary will. A testamentary will is not created and funded during the lifetime of the trustor, but it is created upon the testator’s death as described in his or her will. It is then funded according to the terms of the will. The trust is not funded until the decedent’s estate goes through probate.Advance health care directive
Estate planning is not only about making decisions about how to distribute your property after you are gone. It is also about protecting your assets during your lifetime and preparing for the possibility that at some point in your life you may become mentally incapacitated.
Durable power of attorney for finances. A durable power of attorney for finances allows you to appoint someone to manage your finances for you if you are unable to do so for yourself. This person is referred to as your “agent” or "attorney-in-fact." Typically, a power of attorney becomes invalid if the person who grants the power of attorney becomes incapacitated. However, if the power of attorney is "durable", then your attorney-in-fact will have the authority to take care of your finances in the event you are determined to be mentally incapacitated. In New York a power of attorney is durable unless you add language to it making to not durable.
If you do not have a durable power of attorney for finance and you become incapacitated, your estate may be at risk as there may be no one with the authority to pay your bills, access your bank account, or manage your investments. You can be general or very specific about what authority you delegate, so it is a good idea to discuss your needs with an experienced estate planning attorney in New York before you execute your power of attorney.
Durable power of attorney for healthcare. In addition to planning for the financial aspects of your affairs, it is also important to plan for your health care needs. A power of attorney for healthcare allows your agent to make decisions related to your healthcare in the event you become mentally incapacitated and cannot speak for yourself. In New York this document is called a health care proxy. It allow the person you appoint as your health care agent to make treatment decisions, including decisions related to life-extending treatment, palliative care, and organ donation.
Living will. A living will is an advance heath care directive that provides your family, your health care proxy, and your doctors information about your preference for treatment in the event you become so ill that you are unable to communicate your wishes. It typically addresses treatment alternatives for end of life conditions. For example, in your living will you may want to address your preferences related to CPR, blood transfusions, dialysis, pain medication, organ transplant, and surgery. A living will is often used in conjunction with a health care proxy.Contact the Law Offices of Stephen Bilkis & Associates
While it is difficult to think about death and disability, establishing a plan is important for protecting yourself and those you care about. With proper planning, you remain in charge of what happens to you and your property. Estate planning is a dynamic process that will evolve over time as your personal and financial situation evolve. It is a good idea to revisit each of your estate documents regularly to make sure that they are still consistent with your goals and that they are consistent with the ever-changing law. The estate planning attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have years of experience helping clients develop customized estate plans based on their individual needs. We can help you make a will, set up a trust, plan for future incapacity, and develop a plan to protect your assets. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation. We represent clients in the following locations: Manhattan, County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Staten Island, and Westchester County.