Will Lawyer & Trust and Estate Planning Attorney for Ithaca, Cortland, Binghamton, Waverly, Owego, and the Surrounding Finger Lakes Community
We know that every person’s life situation and estate planning needs are unique. We also know that sometimes circumstances are such that we have let time go by and now you realize that you need this now rather than later. As a result, we help clients by fast preparation, cost-effective estate plans based upon their needs to help protect their assets during life and to ensure their estate is distributed exactly as they wish after death.
We serve clients throughout the Finger Lakes area, including Tompkins, Cayuga, Cortland, Tioga, Chemung, Schuyler and Seneca counties.
We invite you to call us for a consultation to learn how we can develop the estate plan that is right for you and your family.
Why Is Estate Planning Important?
Estate planning is critical not only to ensure that the final distribution of a person’s assets is carried out as they wish, but also to protect their wishes and assets if they become disabled and cannot communicate their wishes for care during their life (including at the end of their life). Without an estate plan in place, disputes may arise over the distribution of assets after death, and your loved ones may be forced to make difficult care decisions in your final days (such as to withhold certain types of medical treatment), or your family may need to resort to expensive and unnecessary court appointments for guardianship and conservatorship if become injured or disabled and cannot make these decisions on your own.
What are the Components of an Estate Plan?
The main elements of an estate plan include:
- Last Will and Testament. A last will and testament (or simply a will) sets forth how your assets should be distributed after you die. It allows you to name the people or charities who will receive your property.
- Living Will. A living will (also called an “advance directive”) provides instruction to medical personnel about what types of medical treatment should be provided if you are in a terminal state and cannot communicate your wishes. It also eliminates the need for family members from having to make such difficult decisions.
- Healthcare Proxies. A healthcare proxy allows you to appoint someone else to make medical decisions for you if you can no longer make decisions for yourself, such as if you suffer a severe brain injury.
- Power of Attorney. A power of attorney is a written authorization allowing someone else to act on your behalf in private affairs, business, or legal matters. If you become mentally incapable of making your own decisions, this representative can help ensure that your affairs are kept in order.
- Trusts. A trust is a legal entity by which assets can be placed for beneficiaries, such as minor children. A trust can be used while you are alive, and it can survive after your death.
What Happens if Die Without a Will in New York? Can’t I Just Tell My Family How My Assets Should be Divided?
All adults should have a will, even if they also have a trust.
If you die without a will, New York intestacy laws will dictate who inherits your estate assets. More specifically, any verbal instructions or communications that you may have made to family members will not count, including verbal instructions purportedly specifying that a specific person should receive a specific asset. Instead, the intestacy laws have a prescribed order of inheritance, typically based on kinship.
For instance, if you die with no spouse and three children, each of your children will be entitled to one-third of your estate. It does not matter that you may be estranged from one of your children (and want them to inherit nothing), or that another one of your children may have special needs while your third child is rich. They all would be entitled to one-third of the estate.
Instead of relying on intestacy law, we can help you draft a last will and testament that can ensure that your assets are distributed exactly as you wish.
What is a Trust?
A trust is a three-party arrangement where one party (the trustor) gives a second party
(the trustee) the ability to manage assets for one or more third parties (the beneficiaries). Assets are transferred to the trust (which holds legal title to the property), and the trustee manages and ultimately distributes the property according to the terms of a trust agreement.
Property held in trust is generally not subject to probate, because probate concerns only the property owned by the person at the time of their death (and property held in trust is not considered to be owned by the person creating the trust).
How is a Trust Managed?
Trust administration is the process of managing and distributing assets in accordance with the terms of the trust documents. Such management generally includes investing trust funds, keeping an inventory and detailed records, filing and paying taxes, and distributing assets to beneficiaries. Depending on the terms of a trust, the administration can be extremely complex, making it essential to choose a trustee who can handle the fiduciary duties. As Ithaca estate planning attorneys, we can evaluate the terms of your trust and help you select a trustee who is well-equipped for this position.
Do you have a special needs child?
If you have a special needs child, you must exercise extra care in making an estate plan. While planning considerations will vary depending on the child’s age, competency, and other family considerations, the goal will be to utilize your estate to enhance and enrich the life of your child while ensuring that they also receive full government benefits (such through social security and Medicaid). We can help you achieve these goals by setting up a special needs trust.
Living Wills and Advance Directives for Medical Decisions.
If you become incapacitated and cannot communicate your wishes, your family may be faced with the difficult decision of determining what type of care you should be given in a terminal situation (such as whether to continue life support). With a living will (also called an advance directive), you can specify the type of end-of-life medical treatment that you would or would not like to receive. As a result, you can reduce the stress placed on loved ones by eliminating the pressure of making tough medical decisions.
Why You Need A Healthcare Proxy if You Become Disabled.
A healthcare proxy is a document by which a person can select a legal representative, also known as an agent, to make healthcare wishes on their behalf if the person becomes injured and cannot make such decisions for themself.
As an example, if you are in an accident and sustain a traumatic brain injury, without a healthcare proxy in place, your relatives may end up having to make medical decisions. If your entire family has a say, a physician typically will have to wait for a consensus. However, if you have a healthcare-proxy representative, that person will be the decision-maker, which can increase the chances that your wishes are followed and eliminate the need for the family consensus (or the need to get a court order)
What is a Power of Attorney?
Powers of attorney operate much like a healthcare proxy in that they appoint an individual who can make decisions on your behalf once you are no longer able to make your own decisions. However, under a power of attorney, your representative will be making financial and lifestyle decisions, rather than medical decisions. In New York, a power of attorney must be in writing and signed.[1]
Without an effective power of attorney covering financial and lifestyle decisions, guardianship/conservatorship may be required, whereby one or more individuals is appointed by the court to make these decisions. This process can be costly, as attorney, filing, and other court fees must be paid throughout the process, and ongoing court oversight is usually required. With a power of attorney, trusted individuals can be appointed to manage these matters on your behalf without the need for court appointments or oversight (and the associated costs).
Why an Estate Plan is Critical for those in Unmarried, Long-Term Relationships.
In New York, married couples enjoy some statutory protection through intestacy; however, unmarried couples do not. Thus, if you are in an unmarried relationship and die without a will, your partner likely will not inherit any of your assets.
Common-law marriage does not exist in New York. Consequently, regardless of how long you have been living with your significant other, you will not be considered married under New York law and cannot take advantage of the marital intestacy protections.
Similarly, without an estate plan in place, your partner may also not have a voice in your care if you become disabled and cannot express your wishes. We help couples protect each other, including through what is called a sweetheart will. Under this type of will, each partner’s will states that all assets will be left to the other partner. For example, if you are engaged, you can execute a sweetheart will leaving everything to your fiancée, and he or she can have a will leaving everything to you.
How Does Probate & Estate Administration Work in New York?
When you pass away, your assets will be distributed to your family and loved ones. If you execute a will, your property can be distributed through probate, a court-supervised distribution process. However, if you die without a will, your property will be distributed through New York’s intestacy laws[2] or through the estate administration process. Once the estate is valued, debts and estate taxes are paid, and assets are distributed, the estate will be closed.
Do My Loved Ones Have to Pay Taxes if They Inherit from My Estate?
If your heirs or loved ones inherit property from your estate, taxes can be imposed before the property is distributed. It is possible that with very large estates, federal estate taxes,[3] New York estate taxes,[4] or other inheritance taxes will have to be paid, which can reduce the amount of money that will be received.
There are a variety of estate planning tools that can be utilized to shield estate assets from taxation (if this is a concern). We can provide guidance on which legal actions can help minimize tax implications to maximize your inheritable estate assets.
Don’t Leave a Legacy of Family Fighting.
Estate contests typically arise when there is no will or estate plan, or when estate plans (including a will) are not clear.
When there is no will, a personal representative may be placed in the unenviable position of having to divide assets between multiple people, which might include the representative and her siblings. This process is particularly difficult with heirlooms and other assets with sentimental value.
Even in the case where there is a will, simply leaving a house to three children, for example poses significant concerns. What if one or more of the children want to live in the house?
We help clients consider these and other matters so that a clear estate plan can be drafted with the intention of eliminating (to the extent possible) family infighting.
We Can Help You Create an Estate Plan that Can Bring You and Your Family Peace of Mind!
With over 70 years of legal practice, we invite you to call our office for a onsult to learn how we can help you create an estate plan that will protect your interests and family.
Related Pages
- Will, Trust, & Estate Planning
- Will Contest & Probate Dispute
- Probate & Estate Administration
- Probate Checklist for Executors and Administrators in New York
[2] EPTL 4-1.1; When There is No Will, NY Courts, https://www.nycourts.gov/courthelp/WhenSomeoneDies/intestacy.shtml.
[3] As of 2020, the federal estate tax exemption is $11.58 million for individuals, and $23.16 million for married couples.
[4] As of 2020, the exemption for New York estate tax is $5,740,000; this amount will rise each year with inflation; however, if the estate value is more than 105% of such an amount, a tax is due on the entire estate.
