Wills, Estate Planning & Probate
Foresight for Families
Wills & Estate Planning in New York
No one wants to think about when they die. But we do die, and when we die, we want to ensure that what we earned in life is passed on properly to those we love. A Last Will and Testament, and in some cases a Trust, are the best ways to guarantee that your estate is distributed correctly, and most economically, after you die. They are also the best way of sparing your loved ones from the legal aggravations that arise if you die without them, just when they are coming to terms with their grief. While it can be unnerving to prepare a Will, proper estate planning, at its core, is an act of love and foresight that helps your family deal with one of their most difficult moments: living with the loss of one they hold dear..
A Will can be very simple or extremely complex. This depends on two things: the number and nature of your assets, and the particularity of its provisions. The more conditions you make, the more minor items you bequest, the more complicated becomes the creation and execution of a Will, which can greatly impact the speed, efficiency, and cost when it is probated.
New York Probate
“Probate” is the process by which a Will is validated by the Court, and includes the collection of a person’s assets and their distribution to the heirs of the estate. When someone dies without a Will, the process is called “administration.” While similar to probate, administration is governed by laws which decide how and to whom your assets are distributed, while a Will ensures that you yourself choose who in fact inherits your holdings.
Typically, when someone dies the nearest surviving relative either finds a Will, or doesn’t find a Will. Usually, that person then calls a lawyer, who, if experienced, directs the surviving family on the course of action to take, whether it be probate or administration. I have extensive experience in preparing Wills and Trusts, and in representing estates, both simple and complex, (including interstate and international situations,) and in guiding family and loved ones through this difficult process with sensitivity during their time of grief.
There are also many ways of maximizing the value of an estate, and avoiding the expenses, taxes and litigation that can arise if a Will is poorly drafted; if there is no Will; or if errors are made during the course of probate. This area of law is not only complicated, but exceedingly particular and filled with potential pitfalls. Simplicity and efficiency are usually the best approach, and for that, hire an attorney who is both straightforward and experienced.
Tips on Will Preparation
1. Contrary to popular belief, it is not an “honor” to be named Executor. Acting as Executor is hard work. Always ask the the person first if he or she is willing to serve as your Executor, and preferably, choose someone who is trustworthy, diligent, and also is inheriting a portion of your estate. An Executor has a serious fiduciary duty as the custodian of your estate: managing bank accounts, writing checks, paying expenses, gathering information, contacting heirs and relatives, signing papers, and dealing with the attorney are all very time-consuming and a frustrating labor of love. A motivated Executor is someone who has a stake in the final outcome. Be prudent, and choose your Executor wisely.
2. Avoid choosing your lawyer as Executor unless absolutely necessary. A lawyer who also serves as Executor is in a very good position to delay or complicate the probate for any number of reasons, typically to increase legal fees. Unfortunately, I have even come across clients who were cheated of their inheritance because the Executor-Lawyer was unscrupulous. In cases where you have no close relatives or friends to serve as Executor, or if you own businesses, investments or Trusts that require professional supervision, then naming a lawyer as your Executor may certainly be appropriate. But it is always best, in smaller estates especially, to avoid choosing your lawyer as your Executor. It simply gives them too much control over your wealth.
3. Before signing your Will, search for and eliminate phrases that grant the Executor (and perhaps your lawyer) the power to “invest estate assets” or “use discretion” in selling your property or in distributing your assets. These clauses grant the Executor too much power to manipulate the estate, which can easily be frittered away by poor or questionable investments, and are normally unnecessary. In most cases, again, simplicity is best. The tighter a Will is written, the more likely your heirs will receive what you left them in a reasonable period of time. Never be afraid to question your lawyer about the meaning of any clause or term, and as to how it may play out. “The only bad question is the question that isn’t asked.” A lawyer who brushes your questions aside, or answers vaguely, is probably not the wisest choice. Our job is to give you the best and most accurate advice for your long-range plan. Insist on detail, and make sure you understand.
4. Keep bequests of personal property like furniture, jewelry, appliances, and sentimental items to a bare minimum. If you wish to leave certain items to certain people, give them as gifts before you die whenever possible. Detailed bequests over smaller items increase the cost of drafting a Will, and very often these items are lost, broken, or misplaced long before you pass away. The estate will then be forced to perform extensive searches and often appraisals before they can be accounted for or otherwise resolved. This can vastly increase the time and expense of probate.
5. When your Will is written, always ask your lawyer: “If I die, which relatives or friends will my estate need to contact to make the probate of my estate most efficient?” While it is impossible to predict who will still be alive when you die, the Court requires that your relatives, even out to your first cousins, be notified before the probate is complete. Often enough, their cooperation is required to expedite the probate process. As a general rule, it is not a bad idea to leave a little something in the Will for anyone whose cooperation the estate may need. This gives them an incentive to work with the Executor and estate attorney.
6. Make a detailed Family Tree with your lawyer at the time the Will is written. This ensures that, when you die, the lawyer knows who must be contacted, and can save thousands of dollars of legal and investigative fees if the family is otherwise unknown.
7. Do not assume your children will cooperate with each other after you die. While we like to think that “blood is thicker than water,” it is an unfortunate fact that sometimes, “money is thicker than blood.” While most families do get along, and children will treat each other fairly, sometimes parents are the only glue that holds the children together. Sibling rivalries are often hidden from their parents, but then burst-out into hostility once the parents pass away. Keep this in mind when you draft a Will: ensure its terms are fair, (presuming you want them fair — you are free to cut your children out of the Will, though this invites further discussion,) so that your children are on equal footing when your estate is distributed. A battle over an estate is as bitter as a divorce, and can create intense and permanent animosity.
8. Do not leave your original Will with your lawyer for safekeeping — take it home and let your lawyer keep a copy. Lawyers who draft Wills often try to keep the original, telling you their office is the safest place. What they really aim at is forcing your heirs to contact them after you die, presuming they will then be hired to handle the probate. Putting aside that lawyers move, retire, lose files, and eventually die themselves, there may be provisions in the Will that require immediate attention — for example, the proper disposal of your remains. Moreover, your heirs may want to hire their own lawyer for any number of reasons, and should not be forced to deal with prying the Will from your lawyer’s hands at the very moment they are dealing with your death.
9. Store your original Will in a safe place where it can easily be found — do not lock it in a safety deposit box in a bank. Typically, the Will should be found right away so your heirs can act on its provisions. In most cases, the bulk of your estate is being left to someone you love and trust, so it is inadvisable, usually, to hide its existence, or its contents, from the person or persons. Locking it in a safety deposit box in a bank is always a bad choice. If you die and no one has the key, the Public Administrator will have to be called in, at substantial time and expense, to have the safety deposit box legally opened and the Will retrieved. Furthermore, if someone else holds the key they may lose it, or even tamper with the Will. One good approach, especially for older people, or those who don’t trust their relatives, is to file the original with the Surrogates Court after it is signed. This ensures that the original is already on file with the Court, free from tampering or loss, and the Court will presume in most cases that the Will is valid.
10. Do not make lots of copies of your Will, and definitely do not remove the staples. Multiple copies of your Will invite contests over probate, and too often a page or two is “mysteriously” replaced, and in contradiction with another copy of the Will. An original Will, or even a copy, with removed and replaced staples creates a presumption that the Will has been improperly changed. Good practice is to keep the original yourself, or file it with the Surrogates Court; leave one copy with your lawyer; and perlhaps copies to your children. If an original Will is lost, the lawyer can file a copy with the Court instead, however, he must swear in an affidavit that the copy is a true copy of the original Will, which he drafted and has kept possession of in his file.
Special Note on Living Wills and Health Care Proxies:
A Living Will is not a true Will, but a document that authorizes someone to direct a doctor to terminate your life-sustaining treatment. It is only valid if you are completely incapacitated and no longer capable of making decisions or taking action for yourself, and if you are in a near-death or terminal condition. A Health Care Proxy is a document that authorizes someone to made medical decisions on your behalf when you are incapacitated, temporarily or permanently. Often these documents are combined into one document, and drafted at the time you write your Will.
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