Estate Planning, Wills and Trusts Attorney
Estate Planning, Wills and Trusts
Everyone has a plan for their estate. They know what they own, what they owe, and who should be their beneficiaries. They have decided who is the best person to represent them as their Agent under a Power of Attorney, and who has the compassion and courage to be their Agent for their Health Care Proxy. Parents know who should be the Guardian of their children if anything should happen to them, and who should be the Trustee of the money and property that will pass to their minor children. But your plan is only as good as the documents you have executed. If you die, or become incapacitated, and you have not executed the proper documents, your wishes may be unfulfilled. That is why Estate Planning is essential for every individual, couple and family.
Estate Planning takes many forms. And, contrary to popular opinion, it is not just for seniors. Every adult should have an Estate Plan. Many young adults may only need a simple Last Will and Testament or Trust, a Health Care Proxy, Living Will and Power of Attorney. Those who have accumulated significant assets, a complex family structure or own a business may require a more extensive Estate Plan. However, it is very important that every adult do a bit of homework and discover what type of Estate Plan fits their current lifestyle. It is also very important to review your Estate Plan every few years to determine what has changed in your life, and if your plan still works for you.
Last Will and Testament– Your Will should reflect several aspects of your final wishes. You should name your chosen Executor and a successor to represent your estate. You should name your specific and residual beneficiaries of your property. If you want to give $25,000.00 to your local animal shelter, library or place of worship, these would be considered specific bequests. If you leave all your property to your two children, your children would be residual beneficiaries. You may also want your house to go to one person, and your vacation cabin to go to another. All of these instructions can be included in your Last Will and Testament.
If you have minor children, you may name the person or persons you wish to serve as their Guardians. You may also wish to have a Standby Guardianship form as part of your Estate Plan so your named Guardian will have expedited access to the children. If your minor children are to inherit your estate, your will may contain a Testamentary Trust with designated ages for your children to inherit the property, and a named Trustee to administer the Minor Trust language in your Will.
Take care that your Last Will and Testament is properly executed pursuant to the laws of the State of New York. This is one reason it is so important to retain an experienced attorney to handle your Estate Plan. If you Last Will and Testament is adjudged invalid, your instructions and nominations will be for naught.
Trusts- A Trust is an Estate Planning tool with many variations. You may have heard of a Living Trust, also known as a Revocable Trust. A Revocable Trust is a Trust established during your lifetime, with you as the Creator or Grantor, and usually you as the Trustee, although another person may also serve as your Co-Trustee. A Revocable Trust has many uses. It can be used to avoid Probate, as the property funding the Revocable Trust at your death will be distributed to your beneficiaries by your Trustee. If you have several unequal beneficiaries, you may wish to use a Revocable Trust, as it generally does not go through a court, and the distribution is private. Also, if you own real property in another state, such property can be transferred or deeded into the Trust and therefore avoid another state’s proceeding upon your death. This trust is fully Revocable while you are alive, and you generally have full access to the principal and income. Upon your death, the Trustee may terminate the trust and distribute the property without the delay of a Probate Proceeding. Generally, executing a Revocable Trust and transferring Real Property into the Revocable Trust is a costlier Estate Plan than a Last Will and Testament, but the cost of Probate is eliminated. Because the Trust is Revocable during your life, the assets in the Trust may be counted as resources for long term care issues.
An Irrevocable Trust, also known as a Medicaid Protection Trust, is also established during your lifetime, but you have limited power and access. The Trustee will most likely be a trusted third party. Assets transferred into the Trust are no longer under your control, but generally the Trust terms will preserve a right to all income and a right to live and occupy your Real Property. Once assets are delivered to the Trustee, the 5 year “look-back” period begins. If transfers of the assets occurred prior to the look-back period, they are generally not counted as a resource when attempting to secure Medicaid benefits. However, it is imperative the Trust is drafted properly and the assets are transferred properly. An Irrevocable Trust, properly drafted and funded, will not be subject to a Probate proceeding. Such a trust can also be expediently distributed and terminated.
Power of Attorney- A Power of Attorney is one of the most important Estate Planning documents imaginable. The Power of Attorney is only valid during your lifetime, and ceases at your death. The Power of Attorney allows you, the Principal, to name an Agent to handle your affairs. It can be as narrow or as broad as your prefer. The Agent named should be someone who is financially competent and organized. If you are unable to handle your affairs, your Agent can act in your place. The transactions can include real property transactions, banking, paying bills, operating your business, buying and selling property, amending and adding Estate Planning documents, and many other actions. The Power of Attorney is also a very powerful document, in that it gives your Agent the powers as soon as the document is effective. The document is effective when the Agent signs the document, not when the Principal signs the document. The Principal can continue to act, and can revoke the Power of Attorney in writing.
Health Care Proxy-The Health Care Proxy is also a very essential part of an Estate Plan. The Health Care Proxy names an Health Care Agent to represent your health care decisions about important procedures including artificial respiration, hydration, tube feeding and other major medical decisions. The Living Will is also a health care directive, and often outlines specific procedures you do and do not wish to have if you are in a terminal state.