FREQUENTLY ASKED QUESTIONS
What is a Living Will?
A living will, despite its name, isn't at all like the wills that people use to leave the property at their death. A living will also called an advance directive, is a document that lets you state your wishes for end-of-life medical care, if you become unable to communicate your decisions. It has no power after death. Advance directives aren't just for older adults. Unforeseen end-of-life situations can happen at any age, so it's important for all adults to prepare these documents.
The unexpected COVID-19 pandemic is a perfect example. People of all ages have suffered, and many have passed unexpectedly. By planning ahead, you can get the medical care you want, avoid unnecessary suffering, and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to
make on your behalf. We are here to offer peace of mind to you and your family while you are alive and to your loved ones after you have passed. If you do not currently have an estate plan, we are here to guide you and help craft a plan that will protect and serve you and your loved ones best.
If I am no longer able to serve as Power of Attorney (POA) and Executor for a friend, How do I undo
these roles? Can I just write a letter? Or do I need a lawyer?
If your friend is alive and has the capacity, resigning your position as POA is as simple as informing the principal (your friend) that you don’t want to serve anymore. The POA document might set out a specific procedure that you should follow, but if not, you can usually just give the principal written notice. However, if your friend is incapacitated and incapable of understanding, most states allow you to deliver the notice to their guardian or the successor agent instead. Hopefully, your friend named a successor agent in her POA document. As far as relieving yourself of the Executor position, there’s nothing to do until the friend passes away. At that point, if you wish to resign, you must file a petition with the Court seeking permission to resign.
In the petition for permission to resign as executor, the petitioner (you) must demonstrate “good cause”, and the decision of whether the executor will be permitted to resign rests with the Court. The Court will evaluate whether the executor’s request to resign is in the best interests of the estate. If the executor is unable to establish that the resignation is in the best interests of the estate, the Court may deny the request. Although these procedures may be done without an attorney, we highly encourage seeking legal advice. With these types of processes, you want to make sure everything is done correctly!
What if the people don’t want the things, I’m giving them in my will like my CD collection?
If it can be sold, then the proceeds can be given to the beneficiary. If it is worthless monetarily then the the beneficiary can disclaim their inheritance and it would go to the residuary estate. You could also donate unwanted items.
What is the easiest way for my family to inherit my property?
The number one reason to establish a trust is to allow your loved ones to inherit your real property in the easiest way possible. Property that is in a trust will be controlled by the successor trustee, who is chosen by you. Your trustee can directly transfer the property to your loved ones.
This process is quicker than probate and will avoid long, drawn-out court processes.
Remember, any estate valued over the state minimum is subject to probate, so most people will need a trust if they wish to avoid court involvement altogether.
If I have a Will, how do I make sure my family stays out of court (probate) after I pass?
Unfortunately, even if you have a will, your heirs will still need to start a case with the localprobate court to carry out your final wishes. Here is how it will go:
1. A judge will need to see your will and ensure that its valid, and then he or she will officiallyallow your named Executor to execute your wishes.
2. From there, your real estate will be inventoried and appraised.
3. Next, outstanding debts will have to be paid by your estate before the probate court distribute property.
Besides your family paying your debts, this process can take between 9 to 18 months, or even longer! The best way to make sure your family stays out of court is to create a trust and transfer your assets and belongings into the name of the trust.
What if I pass away without a Will or Trust?
If you pass away without having a will (known as intestate), there are state laws that dictate who is the "next of kin" and who can be appointed to administer distributing your property. Unfortunately, the people your state chooses may not be the individuals that you want to inherit or control your hard-earned assets. Finding these heirs and determining how much they stand to inherit according to such laws adds additional time and expense to an already arduous process.
So we recommend you look into what your state dictates will happen when you pass. If you do not like the State’s plan, you must create your own plan to control how your hard earned assets will pass.
What happens to my money while my estate goes through probate, can my family
access it to pay off any of my funeral expenses and outstanding debt?
If your financial accounts do not have properly named beneficiaries and an estate goes into probate, your money will be held up until a judge gives your family permission to access it, which can take upas well. This means your bank accounts will be frozen and your family will have no access to your funds. Your loved ones will be responsible for all the final debts that you have, including costs to settle your final affairs, bills, taxes, medical bills, mortgage payments, and funeral costs. Funds held in probate will not be released to cover any of these expenses until the probate judge allows, which as mentioned above could take a long time.
My wife and I want to adopt a child. Do we have to wait until we have adopted a child before we can move forward with estate planning?
Your estate planning does NOT need to wait until you adopt because a plan can be drafted now that includes language for your future heirs/children. The main thing to keep in mind is that if you dont have a plan for your assets, the state has a plan for you. If you are ok with your state's plan (you should be able to google it), then there's less pressure to do any planning for your assets. But keep in mind the state's plan requires a probate process which can get expensive and be time consuming.
Either way, I would absolutely recommend you do planning ASAP around health care planning - powers of attorney, health care proxies, etc. Health care planning will avoid potential costly and drawn out court processes should you need a guardian in the event of your incapacity. A friend of mine's wife just suffered a stroke. They were "young" and did not have any plans in place. It was quite an ordeal for him to get guardianship over her after she became incapacitated.
So we can tailor the plan to your specific needs and ofcourse leave room for upgrades/changes as your family grows and changes.
If you'd like to discuss more, we can schedule a 15 minute phone call. Maybe that will help you decide?
How do I talk to my family about getting an estate plan (death is a taboo
subject for them)?
We understand talking about an estate plan can be hard for some people. For the
people that you love who are resistant to talk about these issues, we think it best if
you come to them from a vulnerable place, not from a place of any sort of
judgment. Start the conversation off with your own wishes. For example, “Mom,
I would like to be cremated when I pass away. What is your preference.” Or
“Dad, I’m making a plan to protect my kids in the future, can I help you with your
plan.”
What do I do if I have minor children but the people I want to name as guardians live out of state from me?
This is so important to plan for. You need to talk to a lawyer who can put in
place a children’s guardian plan. There are several steps that need to be put
into place to properly name guardians, one of which requires a valid Will.
But we also recommend doing additional nominations for short and long-
term guardians.
Imagine this awful scenario: You are out on a date and left the kids home
with a babysitter. You don’t make it home that night. The babysitter
doesn’t know what to do so she calls the police. When the police arrive,
they won’t have any choice but to call child protective services to look after
the kids – putting your kids temporarily into the foster care system until a
guardian can be appointed. We know this is NOT what you would want.
And the solution is simple if you plan ahead with a children’s guardian plan
to avoid such a scenario.
Is a handwritten will good enough if you are in a second (or more)
marriage?
If you are in a second (or more) marriage situation and you have children from a prior marriage or your partner has children from a prior marriage, then it’s critically important for you to work with a lawyer to do your estate plan. Blended families are notorious for estate disputes and conflict if not done properly.
Trying to plan for this scenario without the help of a professional could be setting up your kids (and your survivingspouse) for a nightmare. Working with an experienced estate planningattorney can help you strategize to keep your loved ones out of conflict and set things up in a way that is good for everybody.
What are digital assests?
Most people now-a-days have some sort of digital assets since it has become the norm to store and conduct financial business in cell phones, laptops, PCs, and the cloud. The definition of digital assets is always expanding so just remember ANY content, in any format, that is stored online or digitally and provides “value” to you and/or your business can be considered a digital asset. In addition, there is often confusion surrounding the terms “digital assets” and “cryptocurrency” as they are relatively new ideas. Think of it this way: Cryptocurrency is a type of digital asset, but a digital asset is not necessarily cryptocurrency. The definition of digital assets is always expanding so just remember ANY content, in any format, that is stored online or digitally and provides “value” to you and/or your business can be considered a digital asset.
Do I have any digital assets?
Here is a quick run-down of some digital assets you may have:
* Personal and business email accounts
* Social media (Instagram, Facebook, LinkedIn, WhatsApp, etc.)
* Online financial accounts and apps
* Cloud accounts and information
* Cryptocurrencies, such as Bitcoin, Dogecoin, and Tether
* Non-fungible tokens (NFTs)
* Personal and business websites
* Digital files, photos, and videos
* Digital rights and access to literary, musical composition, motion picture, or theatrical works
* Online blog content
* Online video channels especially where the content is monetized.
This list is not exhaustive so check with your estate planning attorney for a more refined list dedicated to your particular case.
Most people now-a-days have some sort of digital assets since it has become the norm to store and conduct financial business in cell phones, laptops, PCs, and the cloud. Email, social media, digital files & photos are all considered digital assets. This list is not exhaustive so check with your estate planning attorney for a more refined list dedicated to your particular case.
Don't my digital assets automatically go to my beneficiaries?
No, in fact accessing your digital assets properly may not be easy or even possible for your beneficiaries if your estate plan doesn't catalog your digital assets accurately. Think of it: precious family pictures, files and videos, and personal social media accounts could be lost forever, and your family may not receive all the wealth you would like to leave them. If you own a business or cryptocurrency, it gets even more problematic. However, there are steps you can take that will help you begin to protect, organize, and take control of your digital assets and build your digital legacy. Contact your attorney for more detailed information on how you can protect your digital assets and cryptocurrency.
Is there anything I can do at home to protect my digital assets and to make sure my loved ones receive them?
Make a master list of all digitally stored content and property so your beneficiaries know what you have and where they can find it:
Include passwords, online accounts (including email and social media accounts) and digital property (including website names, cryptocurrency, and money transfer apps). Put your list in a safe location and make sure your beneficiaries know how to access it.
* Tip: FYI: Inexpensive password management apps such as LastPass can help simplify this effort.
Remember the safest thing to do is connect with an attorney and create an estate plan, especially if you have a business or own cryptocurrency.
Are there any important laws I should know regarding my digital assets?
When working with an estate planning attorney: Update your estate plan (wills, powers of attorney, and any trusts) language to include giving lawful consent for financial providers to disclose the contents of your electronic communications to the people of your choosing.
Reminder: When your attorney drafts your estate planning documents, clearly document them to allow your fiduciaries to bypass, reset, or recover your passwords.
Remember digital assets are still a relatively new phenomenon, so the laws that address them are changing all the time. When you connect with your attorney talk about the steps you can take now and check in regularly to update your estate plan to accommodate any changes in the law or in your digital property.
What is a Power of Attorney (POA)
A legal document where you give another individual the power to make important legal or financial decisions on your behalf.
Why do I need a Power of Attorney if I am an unmarried couple.
When you are in a partnership that is not recognized by law through marriage, the rights that are afforded married couples with regards to medical incapacity are often not recognized for unmarried couples. A POA document can allow another person (such as a trusted friend or romantic partner) to handle your financial matters and/or make legal decisions on your behalf in the event you become incapacitated.
What is a health are proxy?
A health care proxy (also known as a medical power of attorney in some states) allows you to appoint a health care agent — someone you trust - to make health care decisions for you if you are unable to make decisions for yourself. In most cases, in order for the health care proxy to become effective, two doctors must confer that you are unable to make your own decisions.
What is a living will?
A living will* states how you want your passing to go. For example: Do you want to be on life support? At what point should life support be discontinued? If you want all medical resources available to you until there's no more, than that would be stated in your living will. If you prefer not to live in a vegetative state, the living will notifies your doctors and your agent exactly what your wishes are.
*NOT to be confused with a last will and testament.
How much does it cost?
Thank you for inquiring. Estate planning is not a one size fits all cost. It depends on your family
and your estate planning needs. To get started, all you need to do is complete a quick online
form/questionnaire for us to address the needs of your estate. What is your email address?
How long does it take to get my estate planning done?
The process takes about a month to get your estate planning done.To get started, all you need to do is complete a quick online form/questionnaire for us to address the needs of your estate. What is your email address?
Why is updating your beneficiaries important for estate planning?
When you create an estate plan, you typically designate beneficiaries for your assets.
Beneficiaries can include anyone from your immediate family members to a charity
organization. However, it is common for individuals to forget to update their beneficiaries,
especially if there has been a change in their circumstances, such as a birth, divorce, or
death. Failing to update your beneficiaries may cause your assets to be distributed
according to outdated wishes, leading to confusion and possible probate court for your
loved ones.
When is the ideal time to begin estate planning?
The ideal time to begin estate planning is as soon as you have assets and responsibilities to protect, regardless of your age or wealth. As your life evolves, events such as marriage, having children, buying property, or starting a business, often serve as natural triggers for beginning the estate planning process to protect your loved ones. However, it's never too late to start; even if you haven't begun estate planning, it's essential to do so as soon as possible (you have an estate upon turning 18 years old) to ensure your health care wishes are documented in the event you cannot make those decisions on your own.
Could you share instances of individuals who didn't engage in estate planning, and what were the repercussions?
If you pass away without having a will (known as “intestate”), there are state laws that dictate who is the "next of kin" and who can be appointed to administer the distribution of your property. Unfortunately, the people your state chooses may not be the individuals that you want to inherit or control your hard-earned assets. Finding these heirs and determining how much they stand to inherit according to such laws adds additional time and expense to an already lengthy (and sometimes costly) process.
We recommend you first look into what your state dictates will happen when you pass. If you do not like the State’s plan, you must create your own plan, an estate plan, to control how your hard earned assets will pass to your preferred loved ones.
What are the advantages and disadvantages of wills and trusts?
Wills offer simplicity, cost-effectiveness, and the ability to appoint guardians for minor children, but they may involve a time-consuming and public probate court process, potentially exposing your affairs. Trusts, on the other hand, provide privacy, asset management during your lifetime, and protection from probate, but they can be more complex and costly to establish, requiring responsible trustees and asset transfers. Choosing between the two depends on your goals and circumstances, so consulting with an estate planning attorney is crucial for making the right decision for your and your family’s needs.
Is it advisable for every homeowner to place their house in a trust?
In most cases, it is advisable for homeowners to consider putting their home in a trust as part of their estate planning strategy. A revocable living trust, for instance, can offer several advantages. Firstly, it allows for the seamless transfer of property to beneficiaries upon the homeowner's passing, avoiding the often time-consuming and costly probate court process. Secondly, a revocable living trust provides flexibility during the homeowner's lifetime, allowing them to maintain control over the property and make changes to the trust as needed. Additionally, trusts can help protect the privacy of the homeowner's estate, as the trust documents remain private, unlike probate court proceedings which are typically public. Lastly, it can help minimize estate taxes and provide a structured plan for the distribution of assets, ensuring the homeowner's wishes are carried out efficiently and effectively. However, it's crucial to consult with a qualified estate planning attorney to determine the best approach for your specific circumstances.
What estate planning measures are crucial for parents with young children?
Estate planning for parents with young children is vital to ensure the well-being and financial security of their family. Firstly, establishing a will is crucial to designate guardians for the children in case both parents pass away prematurely. Secondly, creating a trust can help manage and protect assets for the children's benefit until they reach an appropriate age to manage their inheritance. Thirdly, obtaining life insurance is essential to provide financial support for the family in the event of a parent's untimely death. Lastly, setting up a durable power of attorney and healthcare proxy can ensure someone trusted can make decisions for the children's care and finances if the parents become incapacitated.
What documents are needed for a comprehensive estate plan?
A thorough estate plan should include all five important estate planning tools: a last will and testament, a financial power of attorney, a medical power of attorney, a revocable living trust, and medical directives.
Last Will and Testament: This document outlines how you want your assets to be distributed after your death and may appoint guardians for minor children.
An important factor most people don’t realize is that a will has to be validated through a court process called “probate”.
Revocable Living Trust: A trust can help avoid probate and provide for the management and distribution of assets during your lifetime and after your death.
Financial Power of Attorney (POA): This is a legal document that allows someone to
make important legal or financial decisions on your behalf in the event you become incapacitated.
Healthcare Power of Attorney: Designates someone you trust to make medical decisions on your behalf if you are unable to make decisions for yourself.
Living Will: Also known as an advance healthcare directive, outlines your preferences for medical treatment in case of incapacity or if you are in a vegetative state.
HIPAA Authorization: Grants access to your medical information to specified individuals.
Digital Assets Inventory: A list of online accounts, passwords, and instructions for their management after your passing.
Funeral and Burial Instructions: These details can help your loved ones carry out your wishes regarding your final arrangements.
Consulting with an attorney experienced in estate planning is advisable to create a plan tailored to your specific needs and ensure all legal requirements are met.
How often should one review and update their estate plan, and what circumstances might necessitate changes?
Creating an estate plan is not a “one and done” transaction. Life events- such as births, deaths, separations, and divorce, or whenever there’s a change in sentiment about how you want to leave your estate, are triggers that should encourage you to make time to revisit your estate plan and make sure it’s up-to-date. This will help to determine if you’d like to make any adjustments. Generally, we recommend you review your estate plan with your attorney every three years.
Who should be appointed executor, trustee, and power of attorney agents, and what responsibilities do they have?
Appointing individuals for key roles in your estate plan requires careful consideration.
Executor: The executor is typically named in your will and is responsible for carrying out the instructions specified in your will after your passing. They manage the probate process, including distributing assets to beneficiaries, paying debts, and handling legal matters. It's advisable to choose someone responsible, trustworthy, and organized.
Trustee: A trustee manages assets placed in a trust, such as a revocable living trust. Their responsibilities include safeguarding trust assets, investing them prudently, and distributing them according to the trust's terms. Trustee candidates should have financial acumen, integrity, and a clear understanding of your wishes.
Power of Attorney Agents: You can appoint financial and medical power of attorney agents. Financial agents handle your financial affairs if you become incapacitated, while medical agents make healthcare decisions on your behalf. Select individuals who are capable, reliable, and have a good understanding of your values and preferences.
In all cases, it's crucial to choose individuals who you trust implicitly, as they will play significant roles in managing your affairs and ensuring your wishes are carried out effectively during your lifetime and after your passing. Regularly review and update these appointments as needed to align with changing circumstances or preferences.
What is the difference between a Lady Bird Deed and a Life Estate Deed, and how does selling a house work under each type of deed?
A Lady Bird Deed, unlike a Life Estate Deed used in New York, allows the homeowner to retain full control over the property during their lifetime, including the ability to sell or mortgage it without the beneficiaries' consent. Upon the homeowner's death, the property automatically transfers to the designated beneficiaries, bypassing probate. In contrast, a Life Estate Deed gives the homeowner a life estate interest while naming beneficiaries who will inherit the property after death. However, selling the property under a Life Estate Deed requires the consent of both the life estate “tenant” and the remainder beneficiaries.
What can we learn from how Biggie Smalls' estate was managed after his passing?
Biggie Smalls (Christopher Wallace) passed away at the young age of 24, leaving an estate initially valued at $10 million. His mother, who was appointed the fiduciary to manage his estate, successfully grew its value to $160 million. The key lesson here is the importance of appointing a trusted and financially savvy individual to manage your estate. This ensures that the estate can grow and provide long-term benefits to your family. Biggie Smalls' mother exemplified this by effectively managing and increasing the estate's value for the benefit of his family.
What important lesson can be learned from how Heath Ledger's estate was handled after his death?
Heath Ledger’s estate highlights the critical need to update your estate plan after major life changes. Ledger created his will in 2003, before the birth of his daughter, leaving all his assets to his parents and siblings. Unfortunately, because he didn't update his will, his daughter and her mother were excluded from the inheritance. Although Ledger's family ultimately chose to share the estate with his daughter, this situation underscores the importance of regularly updating your estate plan to reflect new circumstances, such as the birth of a child, to ensure your true wishes are honored.
What lesson can be learned from Tupac Shakur's estate situation regarding estate planning?
Tupac Shakur’s estate underscores the importance of having a clear estate plan, especially if you have complex family dynamics. Tupac died without a will, leading to a legal battle between his absentee father, who was legally entitled to, and claimed, 50% of the estate, and his mother, who wanted the full inheritance. The court ultimately sided with Tupac’s mother, ruling that the father was not entitled to a share due to his lack of involvement in Tupac's life. This situation highlights the need to create an estate plan to ensure that your assets are distributed according to your wishes and to avoid potential disputes, particularly if you want to exclude certain family members from inheriting.
What important lesson can be drawn from Whitney Houston’s estate plan regarding distributions to minor children?
Whitney Houston’s estate plan offers a valuable lesson on the importance of staggered distributions for minor children. She arranged for her daughter, Bobbi Kristina, to receive her inheritance in portions at ages 18, 25, and 30. This strategy protected the majority of the estate when Bobbi Kristina passed away before receiving the full inheritance.
As a result, two-thirds of the estate went to Whitney's sisters, rather than her ex-husband, Bobby Brown, who inherited the portion Bobbi Kristina had already received. This approach demonstrates how staggered distributions can safeguard an estate from unintended beneficiaries if the primary heir passes away prematurely.
In New York, do you need to notify your homeowner's insurance carrier if you transfer your deed into a trust?
Yes, in New York, you must notify your homeowner's insurance carrier if you transfer your deed into a trust. Although you may be the trustee, the ownership of the property legally changes to the trust. Failing to inform the insurance carrier could result in a denial of any claims made, as the ownership records would not match. To avoid complications, promptly update your insurance carrier about the deed transfer to ensure your coverage remains valid and effective.
Why is it problematic to name a minor as a beneficiary on a life insurance policy, and what is a better alternative?
Naming a minor as a beneficiary on a life insurance policy can create significant complications, as insurance companies cannot pay out directly to a minor. The funds must go through the court system, requiring the appointment of a guardian and the establishment of a restrictive guardianship account, which is costly and cumbersome. The funds cannot be invested or easily accessed until the child turns 18, and even then, the release of funds requires court approval. A better alternative is to set up a trust and name the trust as the beneficiary. This allows the trustee to manage and distribute the funds according to your specified terms, providing greater flexibility and control over how the money is used and when the child can access it.
What are the potential issues that can arise if a spouse dies during divorce proceedings with significant debt?
If a spouse dies during divorce proceedings and has substantial debt, several problems can arise. In this scenario, the surviving spouse may inherit the estate, including the debt, even if it's not desired. The estate's creditors are paid first through the probate process, which often means that family members receive little to nothing if the debts are substantial. Creditors have priority over heirs, and the remaining assets may be insufficient to cover the debts, leaving the surviving spouse and child with minimal financial benefit. To avoid such issues, it's crucial to address debts and estate planning proactively, ensuring that the estate's obligations are managed and minimizing the impact on survivors.
What estate planning mistake can occur if one spouse dies during a divorce process, and how can it be avoided?
If a spouse dies during a divorce process, the surviving spouse often inherits the estate, despite the ongoing divorce. This happens because the legal marriage status remains intact until the divorce is finalized. To avoid this situation, it's crucial to have a spousal waiver, which is an agreement that the divorcing spouse will not claim their legal inheritance rights if the other spouse dies before the divorce is finalized. This waiver should be arranged through estate planning, even if you're working with a divorce attorney. Proactively addressing this with an estate planning attorney can ensure that your estate is distributed according to your wishes and not inadvertently passed to your estranged spouse.
What problems can arise from a co-owned property when one owner leaves their share to their nieces and nephews in a will?
When a co-owner of a property leaves their share to nieces and nephews in a will, it can lead to significant issues, as seen in a case where a woman’s share of a jointly owned house was bequeathed to her nieces and nephews. This resulted in seven co-owners of the property, including the surviving sisters and the nieces and nephews. This arrangement caused conflicts, as the new co-owners wanted their shares paid out but did not wish to manage the property. To avoid such problems, the co-owner should have placed the property into a trust. This would allow the surviving sisters to manage the property for the benefit of the nieces and nephews until the property is sold, ensuring a smoother transition and less conflict.
What should you consider when planning for the care and asset distribution of aging parents?
When planning for aging parents, it's crucial to ensure they have an estate plan in place. Key elements include:
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Health Care Proxies and Power of Attorney: These documents allow designated individuals to make medical and financial decisions on their behalf if they become unable to do so.
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Estate Plan: This ensures that their assets are distributed according to their wishes, avoiding the need for court intervention.
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Consulting an estate planning attorney can help set up these documents and plans to ensure a smooth transition and minimize potential conflicts among siblings
If I only have one relative to whom I want to leave my life savings, should I use a transfer on death designation, a will, or a trust?
For leaving your life savings to one relative, using a trust is generally more effective than relying on a transfer on death (TOD) designation or a will. While TOD designations pass assets directly to the beneficiary upon your death, they can fail if the beneficiary predeceases you, potentially leading to complications and court involvement.
A will can address this by specifying alternate beneficiaries, but a trust offers a more comprehensive solution. By naming the trust as the beneficiary of your accounts, you ensure that the trust’s terms will manage and distribute the assets according to your wishes, even if the primary beneficiary is not alive. Trusts provide better management and flexibility, reducing the need for frequent updates and court intervention.
If my 88-year-old mother has dementia, is there a way to avoid probate for her estate?
If your mother has dementia, avoiding probate depends on her mental capacity and the steps taken. If she still has some capacity, she can execute a power of attorney, allowing you to manage her financial affairs and designate beneficiaries on her accounts. Assets with designated beneficiaries pass directly to them, avoiding probate. If she lacks capacity, you'll need to pursue guardianship through the courts to make decisions on her behalf. Additionally, reviewing her assets and ensuring that accounts have beneficiaries listed can help avoid probate and simplify the process.
If my parents' will states that my siblings do not receive anything, can it still go to probate?
Yes, even if a will specifies that certain individuals, like your siblings, do not receive anything, it must still go through probate. Probate is necessary to validate the will and enforce your parents' wishes. During probate, the siblings could potentially contest the will. To prevent this, a will can include a "no contest" clause, which stipulates that anyone who contests the will will forfeit any inheritance, even if they win. This clause can help deter challenges and ensure that your parents' wishes are upheld.
Does Medicaid eligibility and its rules vary by state?
Yes, Medicaid eligibility and rules vary by state. In New York, Medicaid provides valuable benefits for those who qualify, with eligibility determined by factors such as health status and income. It's essential to consult with an estate planning attorney in your state to understand the specific requirements and application process for Medicaid. This ensures you can make the most of the benefits available, as Medicaid is funded through contributions from our paychecks. For more information or personalized guidance, reaching out to an estate planning professional is recommended.
Which is better for estate planning: a will or a trust, and can you help with this?
Choosing between a will and a trust depends on your family's needs and assets. Generally, a trust is recommended because it avoids the probate process, which can be time-consuming and costly. A will must go through probate courts to be validated, potentially putting your family through the court system to inherit your assets. A trust, on the other hand, does not require probate and can simplify the distribution of your assets. As estate planning attorneys, we can help you determine the best option for your situation and assist in setting up a trust or will to best meet your needs.
Can a domestic New York trust hold international assets?
A domestic New York trust can hold international assets, but it is crucial to consult with an attorney in the country where the assets are located. Different countries have specific rules and regulations regarding asset transfer and inheritance. While New York law allows for the inclusion of international assets in a trust, compliance with local laws in the asset's country of origin is essential to ensure proper transfer and management.
If two people are supposed to inherit a house but only one wants it, how can this situation be resolved?
In such cases, the trustee has a few options to resolve the situation. They can either:
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Sell the House: The house can be sold, and the proceeds divided equally between the two heirs.
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Buy-Out: One heir can buy out the other by paying them 50% of the house's market value. An appraisal may be needed to determine the house's value.
It's advisable to consult with an estate planning attorney to navigate these scenarios and set up a solution that aligns with the family's best interests and legal requirements.
If I only own a house and I'm still paying the mortgage, do I need a trust?
Whether you need a trust depends on your specific situation. If you have minor children, a trust is highly recommended because it allows for the proper management and distribution of assets, avoiding potential issues with guardianship and inheritance. Even if you only own a house, a trust can simplify the transfer of property and provide clear instructions for asset distribution. If there are no minor children, a trust might not be necessary, but it's essential to consult with an estate planning attorney to evaluate your needs and determine the best strategy for managing and passing on your home.
What happens to your house if you pass away, and how can you avoid complications?
If you pass away, here's what typically happens to your house:
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With a Mortgage: The mortgage remains attached to the house. Someone must continue to make payments or the bank may foreclose.
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No Will: The court decides who inherits the house through a process called probate or administration, which can be costly and time-consuming.
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With a Will: The house will go through probate, where the court validates the will and distributes the property according to your wishes. This also involves costs and delays.
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With a Trust: The house avoids probate, as it goes directly to the person(s) you designate in the trust. This process is quicker and can save on legal costs.
Using a trust can streamline the transfer of your house and help avoid court proceedings and additional expenses.
What is the point of a testamentary trust if it still goes through probate?
A testamentary trust is created through a will and takes effect after probate. Here’s why it might be used:
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Minors: Testamentary trusts are useful when minor children are involved. Since minors can't inherit directly, a testamentary trust allows you to set aside assets for their benefit and appoint a guardian for their care.
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Cost and Complexity: Some people use testamentary trusts to save on the costs of setting up a trust during their lifetime. It might also be chosen if probate is anticipated to be relatively quick and efficient, depending on the state.
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Probate Process: While all wills go through probate, some states have quicker probate processes (like New Jersey), making a testamentary trust more feasible.
In New York, where probate can be lengthy, setting up a living trust might be a better option to avoid probate delays. Consulting with an attorney can help determine the best strategy for your situation.