The Law Offices of Dana Ware
Frequently Asked Questions about Estate Planning
Estate planning can often seem overwhelming and confusing. To add some clarity to the process, our attorneys have compiled a list of our FAQs about estate planning in the space below. If you have further inquiries, do not hesitate to contact our office, and we will happily answer your questions.
What is Probate?
Probate is the legal process through which a deceased person’s will is validated by the court. It involves proving the authenticity of a will, appointing an executor to administer the estate, settling debts and taxes, and distributing the remaining assets to beneficiaries according to the terms of the will. If there is no will, the estate will be distributed according to New York’s intestacy laws.
What is Joint Tenancy with Rights of Survivorship? (in some states “Tenancy by the Entirety” when between spouses)
This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. A surviving spouse should take care when considering adding the names of other living relatives to real property after their spouse dies. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.
What is a Will?
A last will and testament is a legal document in which a person outlines how they want their belongings, money, and property to be distributed after they pass away. It also allows them to name guardians for any minor children and appoint an executor to handle their estate. Essentially, it’s a way to ensure that a person’s wishes are respected and carried out after their death. However, a will is only legally valid if proven through the probate process which takes place in Surrogate’s Court in the state of New York. It is essentially an instruction sheet for the Surrogate’s Court judge. If one desires to avoid probate, there are other tools that can be used to accomplish the goals of distributing assets and naming guardians of minor children.
What is a Living Will?
Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. A living will is executed along with a Healthcare Proxy, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.
What does Intestacy mean?
If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.
What are Beneficiary Designations?
You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.
What is a Durable Power of Attorney and when do I need one?
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.
What is a Revocable Living Trust?
This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.
Who Should Have a Revocable Living Trust?
Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.
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Estate planning doesn’t have to be stressful. With the right guidance, it becomes an opportunity to protect your future, support the people you love, and gain lasting peace of mind.
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