Everyone should have an estate plan in place no matter the amount of their assets. Having an estate plan ensures that your intentions as to your property are preserved following your death. An estate consists of all of the property titled in your individual name at the time of your death. It includes real estate, bank accounts, stocks, life insurance policies, and personal property such as automobiles and jewelry. Regardless of your age and wealth, you should have an estate plan.
At the minimum, you should have a basic estate plan in place. A basic estate plan includes having your attorney discuss with you and prepare the following documents:
Last Will and Testament
Your Last Will and Testament indicates who gets your property after you are deceased. It should provide for a succession of who gets your property in the event the primary people who you leave your property die before you. A Last Will and Testament nominates, an Executor, a person who will be in charge of distributing your property when you are gone. If you have minor children, a will indicates who you would like to appoint as Guardians of your children in the event they are minors at the time of your death. A Last Will and Testament has no legal authority until after your death. It does not avoid probate and must be submitted to the Court after your death, the probate process. If you die without having a will, it is known as “intestacy”. If you die intestate, you are subject to the laws of the State as to who will get your property. While a Last Will and Testament is an important basic document, depending on your situation, it may makes sense to do more sophisticated estate planning with documents known as Trusts.
Durable Power of Attorney
This is an extremely important document where you appoint someone to be in charge of your finances while you are alive. The Power of Attorney will provide in the event you become physically or mentally incapacitated, the person or persons you appoint as your agents can continue to act for you. If you become incapacitated, own property and do not have a Power of Attorney, before anyone can financially act for you, they would have to petition the court to become your Guardian, a lengthy legal process. In most situations, having a Durable Power of Attorney can avoid a Guardianship proceeding. The Power of Attorney laws changed in 2009 and the form has become very complex. It is extremely important that your Durable Power of Attorney be drafted by an experienced attorney.
Health Care Proxy
By executing a Health Care Proxy form you are designating someone to act as your agent to make medical decisions for you in the event you cannot make these decisions yourself. The Health Care Proxy form drafted by an experienced estate planning attorney will also provide your agent with the authority to hire and fire medical professionals as well as transfer you from one medical facility to another if your agent deems it to be in your best interest.
Living Will
By executing a Living Will, you are informing your physician, family, friends and loved ones that if you are in an irreversible medical condition with no hope of recovery, you would like that to honor your wishes that you do not want to be kept alive on life support if that is the only way you are being kept alive. Be aware that in New York State, despite executing a Living Will, your agent appointed in your Health Care Proxy will still be consulted as to what they want to do on your behalf.
Many people depending on the amount of their assets, their age and their health may need more sophisticated estate planning due to tax implications or to perhaps reduce the size of their estates for Medicaid planning purposes. Typically these estate planning strategies include planning with Trusts.
Trusts
A Trust is a legal entity into which your property is transferred while you are alive. At its most basic level, the trust has a Grantor (the person who creates a trust); a Trustee (the person in charge of the trust); and a Beneficiary (the person who will receive what is placed into the trust).
There are many types of Trust depending on you particular needs. They include Revocable Living Trusts, Irrevocable Trust, Supplemental Needs or Special Needs Trusts, Life Insurance Trusts, and Testamentary Trust.
You should contact us to schedule an appointment to discuss your estate planning needs.
