Wills And Trusts In Real Estate Law

Key Takeaways:

• It is necessary to pursue estate planning services in New York. Dying without estate planning documents in place will mean that your estate will be distributed according to the statutory laws of intestacy rather than according to your wishes. If you don’t want the government deciding where your money goes when you die, estate planning is non-negotiable.
• Estate planning documents can and should be updated over time. Life changes things and may change your plans for your later years and the distribution of your assets and property.
• Estate planning is not just wills: rather, it incorporates many other aspects of planning for later years and death, including Medicaid planning (which must be done at least five years in advance), powers of attorney, healthcare proxies and directives, and living wills.
• Probate is the process by which the state certifies wills as valid. It is not strictly necessary to have an attorney handle probate, but it is highly recommended.

This is an area of law that we practice which is a little bit different than the rest of our sub-fields. As aforementioned, most of our business is referral based.

To drum up additional referral-based business, we started to offer will drafting services as something small and inexpensive to get clients in the door or get them familiar with our firm. This way, they would come to us if they had needs in our other areas of practice.

Years later, estate planning, wills, and trusts are one of our most popular sub-specialties.

Why Do You Need Estate Planning In New York?

There are so many reasons why you need an estate plan in New York. Most importantly, if you die without a will, your estate will be distributed by the laws of intestacy. These are the statutory guidelines that govern the distribution of estates if there is no legally valid estate planning documentation in place when a person dies.

According to the laws of intestacy in New York, if you’re married, your spouse does not automatically inherit your entire estate. If there are any children, they take precedence.

Most people that I’ve dealt with don’t want that to happen. They want their spouse to get everything upon their death. They want their kids to receive something, but they generally want the majority to go to their spouse, for the spouse to live on.

Putting estate planning documents in place mean that you get to make those sorts of decisions yourself. In an estate planning document, you can override the laws of intestacy and give your property and assets to whomever you choose, however you choose.

So, one of the main reasons you need in estate plan in New York is so that you don’t have the government telling you how the money is going to be distributed.

Estate planning documents, if properly looked after, also allow you to make changes with time. Life changes over the years, and often wishes for estate distribution also change.

For example, I have one client who I wrote a will for around 10-15 years ago. Recently, he came back in and said that things had changed, and he needed to make some updates. His children had gotten older, and guardians were no longer necessary for them. In addition, because his children were minors, he named third parties as substitute executors if he or his wife were pre-deceased.

Now, being much older, his priorities had shifted from protecting his young children to planning for old age. He wanted to reconfigure his estate plan to help him qualify for Medicaid if he ever needed long-term care.

That client did exactly the right thing. As we try to tell people, Medicaid eligibility through estate planning must be done at least five years in advance of needing long-term care. You need to get those assets out of your name and put them into a trust, and that takes five years to do.

Trusts can be costly to set up, though, so some people want something a little less expensive. They want to put their real property in the life estate, for instance, or something of that nature. This is severely shortsighted, and exchanges short term slight savings for very severe long-term costs.

In those cases, we just have to go over with them what the ramifications will be for all the different things that they might want to do.

To be clear, when people ask us whether a will is enough (as they often do), we tell them the truth: no, a will is not enough. A will is a good first step, and it’s better than nothing, but we always ask clients setting up a will to also set up things like a healthcare proxy (an appointment of an agent to make decisions about their health and medical needs if they are unable to do so themselves), a living will (a document stating their wishes about end of life decisions, such as life support), and an appointment of agent for disposition of their remains.

People sometimes don’t want to even think about the disposition of their remains, but if they care about what happens to their body when they die, they ought to. If both a husband and a wife are gone, it’s best to leave instructions in your estate plan for your children or whomever is handling your affairs to let them know where your body should go—whether it’s the location of a burial plot or a request to be cremated. This also gives them access to your remains so that they can get your body from morgue to funeral home and execute whatever plan is enclosed in your estate planning documents.

And depending upon the age of the person we’re doing estate planning for, we also will suggest a power of attorney. Having a power of attorney is very important, especially now in New York. Like a will, it must have two signing witnesses and a notary to be official, as well as the signed consent of the people you’re giving the power of attorney to.

Some of our clients are a little hesitant to instate a power of attorney. They are concerned about giving anyone that much power over their affairs.

When I have a client with those concerns, I try to explain to them how a power of attorney is a possessory document. This means that you must be in possession of the document to use it, so you can keep it somewhere safe until you, God forbid, need it to be utilized.

And in that case, if something happens to you, you can leave an explanation of where the power of attorney document is located, explaining where you can find that power of attorney to be able to utilize it.

What Is Probate And Why Is A New York Estate Planning Attorney Necessary During The Probate Process?

Probate is the process by which the state oversees and certifies the validity of wills. In certain ways, it is the simplest part of the estate planning process. It is essentially the process of taking the will you have provided us with and going to the Surrogate Court (with the appropriate documentation and waivers from all necessary parties) and put that will “into probate.”

Then comes the harder part, which is making sure that you find all the assets that the deceased person may have, collecting those assets, and then distributing them in accordance with that will.

To be perfectly honest, it is not strictly necessary to hire an attorney simply for the probate process, especially if the case is simple. As in every other legal matter, you are always allowed to be your own attorney. However, quite like in other fields of law, it is not always advisable to be your own attorney, especially if your case is high-stakes or complex.

If you want the probate process to be executed by an expert in a professional manner, you should hire an attorney to at least look at the case and explain what you have to do to make things go smoothly.

If and if you want the peace of mind of knowing that things are being handled correctly, that all the right things are being done, then an attorney is helpful to have. Many different things must be done in probate processes and it’s essential that they’re done correctly. Many laypeople do not know what those things are or how to do them correctly.

Therefore, if you want the assurance of knowing that, say, the tax returns are being filed (if necessary), that a bond (if necessary) is obtained and disposed of after it is utilized, it’s best to have somebody who knows those ropes and can make things happen more efficiently.

Unfortunately, efficiency is not currently easy to come by at the Surrogate Court in Suffolk County, even for expert estate planning attorneys. As of the time of the writing of this article, it is taking anywhere from 60 to 90 days to get a simple will probated. That’s without contest: you must also be ready for an additional wait time if someone is going to contest the will.

For more information on Real Estate Law In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (631) 585-4343 today.