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Estate Planning FAQ

Troy Estate Planning Lawyers

Why do I need a will?

A will is important for a number of reasons. For one thing, it makes sure that what you own when you die passes to the people you want to benefit from your estate. Additionally, it permits you to select the people who will be in control of your estate, who will be the guardian of any minor children you have and when your children, grandchildren or other younger beneficiaries will have access to money from your estate.

What happens if I die without a will?

New York State law provides that the estate of a person who dies without a will ("intestate") will pass to certain relatives. In the case of a person who is married but has no children at the time of his or her death, the entire estate will pass to the surviving spouse. In the case of a person who is married with children, the estate is divided among the spouse and the children even if the children are minors at the time of death.

This means that the spouse does NOT inherit the entire estate and that he or she will not have access to all funds owned by the deceased spouse. Additionally, children who are minors at the time of the parent's death will have full access to their inheritance when they turn 18, which may or may not be a good idea. The estate of a decedent who is survived by only children will pass to his or her children. In the case of a decedent who is predeceased by one or more children, the share of the predeceased child will pass to the deceased child's children and so forth.

The law further provides for inheritance by people who are survived by neither spouse nor children and, eventually, if a decedent has no "close" relatives, his or her estate will pass to New York State. Finally, the administrator of the estate of a decedent who dies without a will may be required to post a fiduciary bond, which can be both difficult and costly to the estate.

What does a Health Care Proxy do?

A Health Care Proxy appoints another person to make health care decisions for you in the event you are unable to communicate your own desires or in the event you are deemed incompetent to make decisions for yourself. When we draft a health care proxy, we include a "living will" in the document itself, so not only does the health care proxy make the appointment of a person to communicate your desires to health care professionals, it also makes clear what your intentions are so that there can be no question about whether life sustaining treatment should be withheld.

The document can and should be tailored to express your individual desires with respect to all aspects of life sustaining treatment and end of life decisions, so our Troy estate planning attorneys encourage you to communicate your desires to the attorney assisting you with your estate planning so that we can be sure that the document that you sign very clearly sets forth your wishes with respect to these matters.

Why is a Power of Attorney important?

In the event you are disabled, injured in an accident or otherwise unable to make decisions on your own behalf, a hospital or doctor MAY simply ask your family to make health care decisions for you and MAY abide by those decisions. However, under the same circumstances, your bank or brokerage house will NOT simply listen to your family as to what you may or may not want done with your money.

So, if your family relies upon you for support, they will have no access to your funds to pay house bills, food bills, utility bills or your medical bills. Additionally, if your condition requires that you enter a nursing home, there will be no one available to engage in any Medicaid planning to save some of your assets for your family. A Power of Attorney permits another person to make these financial decisions, gain access to your assets, pay your bills and generally keep your life rolling along.

If you become disabled, injured, are unconscious or otherwise unavailable and you don't have a Power of Attorney, the only option may be to commence a guardianship proceeding against you, which is an expensive and time consuming proposition that could be avoided. New York State made some significant changes to the Power of Attorney statute recently, so we really encourage all of our clients to update this document to make sure that you have granted all of the powers you want your agent to be able to perform in the event it becomes necessary.

What is the difference between a Will and a Living Trust?

A Will only becomes effective at the time of your death, while a Living Trust is established and funded during your lifetime. Typically, when someone refers to a Living Trust, they mean a revocable trust, meaning it can be changed or terminated during the lifetime of the person who created it. While a revocable trust can be an excellent management tool and can be extremely appropriate as an estate planning vehicle for certain people, it is not for everyone and, if it is used as a tool for "avoiding probate", every single asset that is owned by the decedent individually MUST be transferred into the trust or it loses its effectiveness.

Please note that a Living or Revocable Trust does nothing to protect assets from creditors, including Medicaid, so this type of planning is not appropriate for everyone, depending on the situation and the client's goals.

Who should have a Living Trust?

I strongly recommend revocable trusts for certain types of clients. For those clients that have issues with managing their assets or who have assets that may lose significant value if there is any lapse in management (i.e. between the time of the decedent's death and the time an executor or administrator is appointed for the estate), a revocable trust can be a really useful tool to ensure that there is always someone "at the helm", because a living trust provides for virtually seamless transition from one trustee to the next.

Additionally, for clients that have real property located in another state, a living trust into which the out of state property is transferred can avoid having to probate the will in New York AND in the state in which the property is located. Another class of clients that can significantly benefit from a revocable trust is those that have no close relatives. For example, if a decedent has no spouse, no children, no living parents, no living grandparents, and no siblings, we end up having to contact aunts, uncles and cousins in order to get a will admitted to probate. This can be extremely difficult, especially if we don't know where these individuals are or if they are in another country. For these clients, a revocable trust to which every asset that the client owns is transferred avoids probate completely and eliminates the need to contact people that may not have had contact with the decedent for years.

For more information on estate planning or elder law, or to schedule a consultation with one of our attorneys, please contact Bartle, McGrane, Duffy & Jones, LLP, today.

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