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Estate Planning FAQs

What Estate Planning Documents do I need?

While every individual case is different, the basic estate plan includes a Last Will and Testament, Durable Power of Attorney, and Living Will/Health Care Proxy. More complex documents like a Trust may become necessary depending on complexity of the estate.

When Should I Update my Estate Plan?

When there is a chance of life situation like a marriage, divorce, birth, death, change of jobs, chance of location.

What is Intestacy?

Intestacy refers to an estate where there is no Last Will and it is determined based on your next-of-kin (distributees) who will share in your estate.

Does a Will Have to be Filed with the Court in New York?

In only about 5% of the cases is a Will filed with the Surrogate’s Court before a person passes away.

When is Having a Power of Attorney Helpful?

When you are unavailable, incapacitated, or other unable to make legal/financial decisions on your own behalf.

How Can I Use my Estate Plan to Support the Nature Conservancy?

Make a specific bequest in your Will or Trust for a charitable bequest to the Nature Conservancy.

How Long Does Probate Take in New York?

It all depends on whether the Will shall be contested or not. In an uncontested proceeding, the process is much quicker.

Can I transfer Real Estate Into a Living Trust?

You can transfer real property into a Trust, whether it is Revocable or Irrevocable. You can also transfer to a family based LLC.

If a Set Up a Living Trust, Can I be my Own Trustee?

You can be your own trustee for A Living Trust that is Revocable, however, not for an Irrevocable Trust. Neither should your spouse be a Trustee for an Irrevocable Trust.

Who should I appoint as Trustee?

Someone who is trustworthy, intelligent, and well-organized.

What Invalidates a Will in New York?

A Will in New York is invalidated if it is not properly executed and witnessed by two disinterested parties, is signed by a person without testamentary capacity, is procured by fraud, or if person is unduly influenced to sign the document.

How Can I Make Sure No One Contests My Will?

You can never guarantee there will be no contest, but to less the chance of a successful challenge, be sure you hire a New York estate attorney to prepare the Will and to oversee the signing of the will to ensure due and proper execution.

Can I Change My Will? How?

You can change your Will at any time. It is a good idea to do so if there is a change in life circumstances (birth, death, divorce) or you move out of state. A codicil can be added to your original will or you can draft a new Will.

How to Keep Your Will Safe?

You can file the original Will with the Clerk of the Surrogate’s Court of the county where you reside, your attorney can retain in their safe, or you can keep in your own fireproof safe. Do not keep in a safe deposit box.

Is it necessary for the witnesses to read the contents of the Will before signing?

The witnesses do not have to read the contents of the will. They only need to confirm that the person signing the Will (Testator) is who they say they are, that the Testator understands the terms of the Will, that the Testator is signing of their own free will and is not signing by undue influence or fraud.

Why do I need a Living Trust instead of a Will?

To avoid probate and to ensure the seamless transitions of ownership of property when you pass, and for possible Medicaid planning or to avoid estate taxes.

What assets are going to be used to fund the Trust?

Almost any assets that you own can be used to fund the trust, like brokerage or savings account. You can place real property in your Trust. The main asset you cannot place in a Trust is your IRA account.

Where do I start with estate planning?

Consult an experienced estate planning attorney who will most likely have an in-take consultation to discuss your goals, assets, beneficiaries, change of life circumstances to specifically tailor an estate plan to meet your specific needs.

How Much Does Estate Planning Cost?

The more complex your estate, the more expensive the estate planning process will be. For most individuals, a basic estate plan of a Will, Power of Attorney, and Living Will/Health Care Proxy will suffice at a modest cost.

What is the role of an executor in estate planning?

An executor does not officially serve in their capacity until a Will is admitted to probate in Surrogate’s Court and the Court officially appoints the named executor in the Will. The nominated executor should be aware of their impending role will in advance by the person who had their Will prepared.

What is the right age to make a Will?

As long as you are an adult and have capacity to sign a legal document then you are ready to make a Will. Obviously the older you are and a change in life circumstances further necessitates the importance of having a will drafted.

Can I change my Will? How?

At any point, you can change your will by having a Codicil drafted to your original Will. Or you can draft an entirely new Will that would revoke the prior will. Consult an experienced estate attorney.

Is it necessary for the witnesses to read the contents of the will before signing?

In short, no. They just have to be disinterested persons (non-beneficiaries or family members) who witness your signing the will in their presence and confirm that you have attested to your capacity to sign a will, your understanding, that you are free from undue influence or disability that would render you unable to sign a legal document.

Is a Will necessary if I have a living trust?

A will would be important to have even with a living trust as not all assets you have may be contained in the trust when you pass. You may want to consider a pourover will so any assets that are not in the trust when you pass away may “pour over” into said trust.

What happens to my estate if I die without a will or trust?

Your estate will be distributed according to the law of intestacy. Essentially, your next of kin would share in your estate. This does not apply to testamentary substitutes such as POD accounts, joint accounts, jointly held properly, or accounts/IRAs/pension plans with named beneficiaries.

What is the process for distributing assets in a trust?

The trust agreement will set forth the procedures for distribution of assets during the lifetime of the grantor and upon the death of the grantor. Usually trust assets are distributed in their entirety upon death of grantor, however, they may be held in further trust such as for the benefit of a minor.

What is the purpose of a healthcare directive in estate planning?

If properly structured, advanced directives can set forth how you can ensure your end of life procedures to be handled. Quite often, this may include the consent (or do not consent) to a DNR order.

Can estate planning help me avoid probate altogether?

Proper estate planning can avoid probate altogether with testamentary substitutes such assets held in trust or setting up accounts with named beneficiaries so as to avoid the Court process of probate.

Is it possible to revoke or change a will?

A will can be changed or revoked by the Testator at any time prior to their passing as long as the requirements for due and proper execution are met.

What are the types of trusts for estate planning?

Examples of estate planning trusts include (but are not limited to) revocable trusts, irrevocable trusts, Medicaid trusts, life insurance trusts, and Generation-Skipping Trust (GST).

What assets are going to be used to fund the trust?

Almost any assets except an IRA can be utilized to fund your trust.

How much does an estate planning lawyer charge?

It depends on the complexity of your estate plan and whether you need more elaborate trusts and other testamentary substitutes to reduce estate tax liability, or whether you just want basic estate planning package with a Will and Power of Attorney.

What happens to my estate if I die without a will or a trust?

Your estate assets will be distributed according to who is your surviving next of kin, known as your statutory distributees. If you have named beneficiaries on your account, those designations shall be controlling.

What is a health care proxy and why is it important?

Your health care proxy designates an individual to carry out your wishes regarding your course of treatment and end-of-life care if you are unable to communicate. Your advanced medical directives will be set forth in the living will that accompanies the health care proxy.

Can I name more than one executor in my will?

You absolutely can name more than one executor; just be sure they are generally in agreement and won’t cause more issues.

How can I plan for the care of my pets after I die?

You can set up a Pet Care Trust and set aside money to fund the trust for the care of your pet, and also appoint a trustee to care for the pet and use the pet trust assets accordingly for the long term care of the pet.

Can Estate Planning Help Avoid Probate Altogether?

With proper estate planning, testamentary substitutes (i.e. trusts, POD accounts, named beneficiary accounts, life insurance policies) can be created to avoid probate.

How to Keep Your Will Safe?

Keep your Will in a fireproof safe, and do not place in a safe deposit box as it would require an order of the Surrogate’s Court to open the box after you pass away. It would slow down the probate process unnecessarily.