Estate Planning and Elder Law Attorneys in Westchester County Helping Clients Protect Their Legacies

Your estate is any and all property you own at the time of your death. After you pass away, your estate is distributed to beneficiaries or heirs using the instructions you left in a will or trust. If you pass away without a will or a trust, the state decides who your estate goes to. Your estate can contain real property, like real estate, houses, and investment properties, as well as personal property, including bank accounts, vehicles, securities, and jewelry. Estate planning allows you to determine which of your assets go to which beneficiaries, when they get those assets, and protects family members who may be under a disabillity or have other issues.

Dying without a will is referred to as “dying intestate.” If you die without a will, the state will take over your estate and assign a personal representative to divide your assets. In most cases, your estate will be split between your surviving spouse and any children you have. If you do not have a surviving spouse or children, your estate will be given to your next closest relative, like your parent or grandchild. The state will keep searching for relatives if those relatives cannot be found. If no relatives are found, the state will take your estate assets.

It is almost impossible to create a valid Will in New York without a knowledgeable estate attorney. The probate process is the process in which the court examines the will to determine its validity. New York has very strict requirements around the execution of a Will, and therefore most of the “internet” Wills cannot be proved valid in New York courts and will not be probated. Such Wills will be thrown out and the state will determine how your estate will be distributed.  This would lead to your wishes not being followed and your loved ones not receiving their rightful assets.

Experiencing the loss of a loved one is always challenging. Your emotions may be running high, and you may be making funeral arrangements and contacting other family members. One of the first things to do after a family member passes away is to obtain their death certificates from the funeral home. You should locate their estate planning documents and verify their last wishes. You can call our office for guidance as we have been through this situation many times with our clients’ loved ones and with our own families.

When most people think of a will, they think of a last will and testament. In New York, a living will iscontained in your Health Care Proxy and it specifies your medical wishes if you are unable to communicate them. Health care proxies are usedwhen an individual gets into a severe accident or falls gravely ill. Inyour Health Care Proxy, you name a someone to have the authority to make medical decisions on your behalf when you cannot speak for yourself. In theliving will section, you can note specific medical treatments that you consent to or do not wish to consent to. Using the Health Care Proxy ensures that your medical wishes and treatment decisions will be followed.

Probate is the process that courts use to examine and enforce a will after someone dies. When an individual passes away, the attorney for the executor named in their will must file papers with the court informing them that the individual has died. Then, the attorney must provide proofs of the validity of the will, notices to the immediate family and the beneficiaries, and appear in court to offer the will for probate and give others a chance to object to the will. The court will examine the document to ensure it is legally valid. and also requires a detailed list of the assets in the deceased person’s estate.. The executor is required to provide a detailed Accounting to the beneficiaries of the assets received and distributed, and the beneficiaries have to consent in writing to release the executor from liability for the estate. Probate in New York can take at least a year to complete,  So there is a long and expensive delay (including court costs and attorney’s fees) before your loved ones receive their shares of your estate. This is why many people choose to use a trust to pass their assets to their family and avoid the probate process completely.

A trust is a separate legal entity that holds your assets safe from all creditors. You can be your own trustee and be in charge of the trust yourself, so you are not handing over power over your assets to anyone else while you are still alive. The assets in the  trust  will continue to provide you benefits while you are alive. After you pass away, those assets will be distributed to the people that you named beneficiaries in the trust documents. A third party trustee that you name  will manage the assets in a trust and distribute them after death according to your instructions. A trust is different from a will, as a trust does not  have to go through the delay and expense of probate, and your loved ones get their inheritance much more quickly and cheaply after you die. Many individuals use trusts to lower their tax liability while also avoiding probate. Additionally, in New York a trust will allow you to qualify for free long-term care in your own home, and avoid the nursing home completely.

A power of attorney is a legal document that lets you give someone else the right to act on your behalf. You give someone else the power to access your financial assets so that they can pay your bills for you, file your taxes, negotiate with your insurance company, and generally keep your financial life going while you are laid up in the hospital or have a debilitating illness like dementia. You can revoke or change a power of attorney anytime if your needs change. The power of attorney and health care proxy are critical to have in an emergency medical situation, and avoids the need to have a court appoint a guardian for you if you become incapacitated.