Estate Planning - Long Island and NYC
While nobody wants to think about death or disability‚ establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones. Burner Law Group's experienced estate planning attorneys, with locations in NYC and Long Island, can put you in charge of your finances and spare your loved ones of the expense‚ delay and frustration associated with managing your affairs when you pass away or become disabled.
What is an Estate Plan?
A basic estate plan includes advanced directives, in case of incapacity, and a validly executed last will and testament. However, every family situation is different and an estate planning attorney can advise you as to variations that can be drafted into your last will and testament. For example, a simple "sweetheart will" where each spouse leaves assets to the other outright is rarely recommended for various reasons. One reason is to avoid assets returning to a spouse who becomes disabled or incapacitated and is receiving government benefits, by drafting a supplemental needs trust trigger into your will.
Planning for Estate Taxes in New York
The IRS will want to review your estate at death to ensure you don’t owe them that one final tax: the federal estate tax. In addition to the IRS‚ New York imposes a separate estate tax‚ which is even imposed on individuals with relatively modest estates. Whether there will be any tax to pay depends on the size of your estate and how your estate plan works. There are many effective strategies that can be implemented to reduce or eliminate death taxes‚ but you must start the planning process early in order to implement many of these plans. Therefore, an additional reason not to simple leave assets outright to a spouse is to capture a spouse's NYS estate tax exemption with the use of disclaimer planning.
Other issues to consider in this respect is whether you’d like your beneficiaries to receive your assets directly‚ or whether you’d prefer to have the assets placed in trust and distributed based a number of factors which you designate‚ such as age‚ need and even incentives based on behavior and education. All too often‚ children receive substantial assets before they are mature enough to handle them properly‚ with devastating results. As you can gather, there is no one-will-fits-all and everyone needs a tailored estate plan.
What are Advanced Directives?
Advanced Directives are legally binding documents which allow you to establish a plan for your medical care and your financial affairs in case of incapacity, namely Healthcare Proxy, Living Will, and Durable Power of Attorney.
A Healthcare Proxy allows you to appoint an agent, a family member or close friend, to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself.
A Living Will documents your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.
A Durable Power of Attorney is a document that allows you to name agents who can make financial decisions on your behalf and assist in taking care of your daily financial obligations. New York has adopted a statutory Power of Attorney form with detailed requirements for it to be considered valid in the state. While the statutory form or the form provided by the bank may be accepted by certain institutions, it is typically not sufficient to convey all the powers needed to a client. Not all power of attorneys are the same. A good Elder Law attorney will make numerous modifications to the statutory form.
The difference between a Will and Trust
When we discuss the difference between a will and a trust, the type of trust to which we are referring is a Living Trust. A Living Trust, also called an intervivos trust, is a document created and administered during an individual's lifetime directing how and to whom the named Trustee is to administer assets within the trust during life and upon death. The distinction is important because many Wills include testamentary trusts, that is trusts that only come into existence at time of testator's death.
Trusts Avoid Probate
If you leave your estate to your loved ones using a will‚ everything you own will pass through probate. The process is expensive‚ time-consuming and open to the public. The probate court‚ which in New York called the Surrogate Court is in control of the process until the estate has been settled and distributed. There is one Surrogate Court in each county. If you are married and have children, you want to make certain that your surviving family has immediate access to cash to pay for living expenses while your estate is being settled. It is not unusual for the probate courts to freeze assets for weeks or even months while trying to determine the proper disposition of the estate. This is especially important if you own a business or income producing property. Your surviving spouse may be forced to apply to the probate court for needed cash to pay current living expenses. You can imagine how stressful this process can be. With proper planning, your assets can pass on to your loved ones without undergoing probate‚ in a manner that is quick‚ inexpensive and private.
Trusts Provide for Incapacity
If you become incapacitated‚ you won’t be able to manage your own financial affairs. Many are under the mistaken impression that their spouse or adult children can automatically take over for them in case they become incapacitated. The truth is that in order for others to be able to manage your finances‚ they must petition a court to declare you legally incompetent. This process can be lengthy‚ costly and stressful. Even if the court appoints the person you would have chosen‚ they may have to come back to the court every year and show how they are spending and investing each and every penny. If you want your family to be able to immediately take over for you, you must designate a person or persons that you trust in proper legal documents so that they will have the authority to withdraw money from your accounts‚ pay bills‚ take distributions from your IRAs‚ sell stocks‚ and refinance your home. A will does not take effect until you die and a power of attorney may be insufficient.
Providing for Minor Children New York State
It is important that your estate plan address issues regarding the upbringing of your children. If your children are young‚ you may want to consider implementing a plan that will allow your surviving spouse to devote more attention to your children‚ without the burden of work obligations. You may also want to provide for special counseling and resources for your spouse if you believe they lack the experience or ability to handle financial and legal matters. You should also discuss with your attorney the possibility of both you and your spouse dying simultaneously‚ or within a short duration of time. A contingency plan should provide for persons you’d like to manage your assets as well as the guardian you’d like to nominate for the upbringing of your children. The person‚ or trustee in charge of the finances need not be the same person as the guardian. In fact‚ in many situations‚ you may want to purposely designate different persons to maintain a system of checks and balances. Otherwise‚ the decision as to who will manage your finances and raise your children will be left to a court of law. Even if you are lucky enough to have the person or persons you would have wanted selected by the court‚ they may have undue burdens and restrictions placed on them by the court‚ such as having to provide annual accounting.
You should give careful thought to your choice of guardian‚ ensuring that he or she shares the values you want instilled in your children. You will also want to give consideration to the age and financial condition of a potential guardian. Some guardians may lack child-rearing skills you feel are necessary. Make sure that your plan does not create an additional financial burden for the guardian.
Charitable Bequests – Planned Giving
Do you want to benefit a charitable organization or cause? Your estate plan can provide for such organizations in a variety of ways, either during your lifetime or at your death. Depending on how your charitable estate plan is set up, it may also let you receive a stream of income for life‚ earn higher investment yield‚ or reduce your capital gains or estate taxes.
A well-crafted estate plan should provide for your loved ones in an effective and efficient manner by avoiding guardianship during your lifetime, probate at death, estate taxes and unnecessary delays. Feel free to contact our Long Island or New York City estate planning attorneys to review your family and financial situation and goals. We will explain the various options available to you and draft an estate plan that specifically addresses your unique situation. Once your estate plan is in place‚ you will have peace of mind knowing that you have provided for yourself and your family in the most efficient and comprehensive manner.