and Your Family
Suffolk County Estate
Estate law and estate planning are often are difficult topics. After all, no one likes to think about their mortality. However, while part of estate law and estate planning is thinking about how to distribute your property once you pass away there are many aspects of estate planning that have to do with ensuring that your assets are protected so that you can enjoy them during your lifetime. Estate planning also involves taking steps to ensure that you have a say as to how you are cared for if you become ill and cannot communicate your wishes. Common goals of estate planning include:
- Clearly setting forth your final wishes
- Making sure that your minor children have the legal guardian that you select
- Making sure the loved ones of your choice receive the assets of your choice
- Minimizing conflict among family members over your estate
- Reducing the impact of probate on your estate
- Minimizing taxes and legal expenses
- Protecting assets and preserving wealth for yourself and your beneficiaries
- Making sure that your healthcare and finances are taken care of according to your wishes in the event of your incapacity
To help you create and execute estate documents and an estate plan that is consistent with your goals, contact an experienced Suffolk County estate lawyer at the Law Offices of Stephen Bilkis & Associates who will be able to educate you on the types of estate documents available and who will help you implement your plan.Importance of a will
A will is important if you want to make choices about your estate and your family's future. There are many reasons why you should create a will. You will need a will if you want to specify who gets your property upon your death. A will is also especially important if you have minor children and would like to make the decision of who would be their guardian of them financially and physically in the event of your death. If you do not have a will the State of New York will make these choices for you. Instead of your property going to the people you want it to go to, it will go to your heirs based on New York’s intestate succession statute.Requirements for a valid will in New York
Under New York Estates, Powers, and Trusts Law, for a will to be valid, the following conditions must be met:
- The testator must be at least 18 years old
- The testator must be of sound mind at the time the will is executed
- The testator must understand what it means to prepare a will, the nature and extent of the property he (or she) owns, and who his natural heirs are.
- The will must be writing
- The testator must sign the will at the end
- Two competent witnesses must observe you sign the will
There are two types of wills that are valid in New York even though they are not created with the general requirements of New York law: holographic wills and oral wills. A holographic will is handwritten by the testator, but is not witnessed. An oral will is spoken and witnessed by at least 2 people. Holographic and oral wills are only valid if made by a member of the armed forces, someone accompanying the armed forces or a mariner at sea. To learn more about creating a will, contact an experienced Suffolk County estate lawyer.Trusts
Another important estate document is a trust A trust is a legal arrangement that you as the settlor create that describes how assets will be managed and held for the benefit of another person known as the beneficiary. The trust assets are made up property that you transfer to the trust. The trustee is responsible for managing the property according to the terms of the trust and must do so in the best interest of the beneficiary. There are several different types of trusts designed for different purposes.
- Living trust. A living trust is created by the trustor during his or her lifetime. Typically the trustor retains the power to change or terminate the trust. However, when the trustor passes away, a living trust becomes an irrevocable trust and cannot be changed. An advantage of a living trust is that property that the settlor transfers to it during his lifetime avoid probate.
- Testamentary trust. A testamentary trust, also referred to as a will trust, is a trust that is created by a will. It goes into effect upon the death of the trustor. A testamentary trust is often created to hold the property of a minor, to protect a surviving spouse's finances by providing lifetime income, to ensure that a loved one with special needs is taken care of, and gifting to charities. As an experienced Suffolk County estate lawyer will explain, property transferred to a testamentary trust must first go through probate.
- Revocable trust. A revocable trust is a trust that can be amended or terminated at any time by the person who created the trust. This allows the settlor to maintain control over the trust assets even though he is no longer the legal owner of them. Upon the settlor's death, a revocable trust becomes irrevocable.
- Irrevocable trust. An irrevocable trust is trust that cannot be changed or revoked. In other words, the settlor has no control over the property in the trust.
Trusts are complicated to set up. Failure to properly set it up may result in your goals not being met and may have a negative financial impact on your estate or on your beneficiaries. Thus, before setting up a trust, seek the advice of an experienced Suffolk County estate lawyer.Planning for incapacity
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.
- Health care proxy. A health care proxy is a type of power of attorney that allows you to name a specific person, called your health care agent, to make health care decisions for you in the event that you are unable to make those decisions on your own. If you do not appoint a health care agent, typically decisions about your health care defaults to your spouse, your adult children or your parents. However, if there is disagreement as to your care among family members or between the family and the patient’s physicians, it may be necessary for the Surrogate’s Court to step in and appoint a guardian who would be charged with making decisions about your care.
- Durable power of attorney for finances. A financial power of attorney allows your attorney-in-fact to make financial decisions on your behalf should you be unable to care for your finances because you are unavailable or due to incapacity. 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.
- Living will. A living will is an advance health care directive that sets forth your preferences for your care in the event you become so ill that you cannot communicate and you are not likely to recover. For example, in a living will you could state what you would like to have done if artificial means are required to keep you alive. This is an important document because not only will it ensure that your wishes are known, it also prevents your family from having to make these difficult personal choices for you. For more information about living will and other strategies to protect you and your property in the event of incapacity, contact an experienced estate attorney in Suffolk County.
Estate planning is a process that should be well-considered and not entered into lightly. Mistakes can be costly to you and to your loved ones. On the other hand, proper estate planning is the best way to protect your interests and those of your loved ones but while you are living and after your death. Everyone needs an estate plan, even if your assets are not substantial. However, the more substantial your assets, the more complicated your family situation, the more complex your estate plan will be. To learn more about writing a will, trust, and other estate documents, contact an experienced estate attorney serving Suffolk County at the Law Offices of Stephen Bilkis & Associates. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Nassau County, Bronx, Staten Island, Queens, Brooklyn, Manhattan, Westchester County, and Long Island.