It is essential for New York residents to put a properly executed estate plan in place to ensure that their assets pass to their intended beneficiaries without unnecessary expense or delay upon their incapacitation or death. A properly executed estate plan should include a last will and testament, health care proxy and durable power of attorney.
Last Will and Testament
A last will and testament, commonly referred to as a will, is a written document that specifies how an individual wants their assets distributed after they pass away. There is a common misconception that only elderly individuals need a last will and testament; however, it is advisable that adults of all ages establish this important estate planning document.
A last will and testament allows you to designate who will receive which assets from the estate. If an individual dies without a will, his or her estate is subject to intestate, which means the succession of the individual’s assets is determined by the state. Dying intestate may leave the people who are closest to the deceased with little to nothing, while others who were not as close to the deceased will inherit the bulk of the estate. For those who wish to pass assets to long-term, unmarried partners, step children, charitable organizations, friends, non-immediate family members, foster children, or children born outside of marriage, establishing a will is essential.
Some of the other benefits of establishing a last will and testament include the ability to name a guardian for minor children and set aside funds to support them, establish a testamentary trust to hold property for another individual’s benefit (such as children), name an executor, and plan for personal matters such as burial arrangements and pet care.
Health Care Proxy
A health care proxy is a document which gives power to an appointed agent to make health decisions and personal care decisions in the event that a person is unable to do so on his own behalf. The health care proxy document can also specify an individual’s end-of-life medical care, including life-prolonging treatments, should he or she become incapacitated. A health care proxy can provide family members and health care providers guidance on an individual’s desires for medical treatment, should he or she become unable to do so.
Durable Power of Attorney
A durable power of attorney is a legal document that transfers financial decision making from an individual to another person, in the event that he or she becomes too sick, incapacitated, or disabled. With a durable power of attorney, the appointee will be legally able to take care of important decisions, such as paying bills, making gifts or managing assets, if he or she is unable to do so. These documents are very powerful legal instruments and should only be granted to trusted individuals.
A living trust, commonly referred to as a revocable trust, offers many of the same advantages of a last will and testament, but may also offer additional before-death and after-death benefits, such as avoiding probate. A living trust is a written agreement that allows the creator to designate another individual to be responsible for managing his or her property. A creator can change or dissolve the living trust at his or her discretion for any reason as long as he or she is mentally capable. A living trust can specify how the assets from an individual’s estate should be distributed, including who gets what assets, when they receive them and how they receive them. An individual’s continued involvement with the living trust after its creation (making updates to the trust, transferring assets in and out of it) may serve as evidence that the deceased was competent in managing his or her affairs, therefore making it difficult to challenge its validity in probate proceedings.
If you are a New York resident who is seeking guidance establishing a properly executed estate plan, including the drafting of a last will and testament, health care proxy and durable power of attorney or are seeking to establish a living trust, contact the New York trust and estate planning lawyers at Kaplan, Kaplan & DiTrapani, LLP, who can guide you through the estate planning process. With our Long Island law office located conveniently in Syosset, New York, our estate planning lawyers are available to serve the residents of Nassau County, Suffolk County and the five boroughs of New York City with their wills, trusts and estate planning matters. For more information or to schedule a consultation, call our Long Island trusts and estates law firm at (516) 801-6363.