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Estate Planning

Estate Planning is a process, not a form. The legal strategy used in estate planning will depend upon your goals. That is why it is critical in estate planning to be part of a process rather than simply print out forms


Estate Planning Explained

Choosing the Right Estate Plan


The legal documents which are the tools of estate planning include wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. When you use an estate planning lawyer to put your family situation and choices into these documents it is a plan. When you combine that plan with proper asset integration, verification and tracking on an ongoing basis, the plan will work to achieve your goals for dealing with your disability, or death or the death or disability of a spouse or beneficiary. Estate planning for parents of young children differs from the estate planning goals of a parent with an adult child in college.

One way to learn how to make an estate plan is to attend a free estate planning workshop.

Last Will & Testament


Wills As Part of Planning Process

Most estate plans, to really work require more than a will. Also, there are different strategies that involve wills but may include dispositive provisions outside of a will. For instance, is it a goal of your estate plan to avoid probate? If so, the will cannot be the main dispositive document in your plan. A last will and testament is a legal document that names a personal representative or executor. The executor’s job is to collect together all your property at death, pay your debts and then pay the gifts to your beneficiaries. Executors are entitled to get paid for this job under the law.

But what if you have creditors at death? What if one of your beneficiaries is disabled or has creditor or divorce issues? Are they an older couple concerned about nursing home costs? These are the kinds of issues you need to talk about as part of a good estate planning process.

Additional Items for Estate Planning


What a Will Does

Wills Are a Legal Document

Wills direct who is entitled to the property in your name when you die. The public process of probate is necessary to transfer these assets. Your personal representative will literally have to prove the will in court. The value of your estate will be filed with the Court, and the public and any persons interested in your estate will be invited to scrutinize the will and make a claim against your estate. There is a filing fee, and there are administrative costs.

Will Facts

Planning Issues with Wills

  • Wills do not have any legal authority until after you die
  • Wills are subject to the probate process
  • Wills cannot give your assets to beneficiaries until debts and taxes are paid
  • Wills cannot avoid a Medicaid or nursing home lien

Trust Within a Will

Testamentary Trusts

A testamentary trust is a trust established within your will and starts to exist after you die. Trusts established in a will cannot protect your assets during life. Testamentary trusts are funded with property from your estate. But it cannot be funded with probate assets until the debts of your estate are paid. So even though trusts are one tool estate planning lawyers use to protect assets, a testamentary trust is not the appropriate tool to accomplish that estate planning goal.

Trusts As Part of Estate Plan

There Are Different Kinds of Trusts

Revocable Living Trusts, Irrevocable Trusts and Special Needs Trusts

Trusts and Control

How to Change an Irrevocable Trust

Many clients seek to use trusts to provide asset protection during their lifetimes. Be cautioned, this is a complex area of law. Trusts made during life have different levels of control. If you make a trust by putting your property into a trust you are giving that property to the trustee to manage. If you are the trustee you can control that property. However, if you are the trustee it is very unlikely you will have any trust protection from creditors, lawsuits or Medicaid. Unfortunately, a brief article about trusts cannot allow you to determine if a trust is necessary to achieve your estate plan goals. Lawyers receive many years of training to be adequately versed in trust law to use them properly in an estate plan.

Trusts for Asset Protection

How to Change an Irrevocable Trust

Irrevocable Asset Protection Trust – this trust can be set up during your life or as part of your will. If set up during your life, if can provide asset protection for you, your spouse, and your family. Even though an Irrevocable Asset Protection Trust is irrevocable, if drafted properly, it can be changed. Estate planning lawyers frequently use Trust Protectors, or trust decanting statutes and case law to modify irrevocable trusts in ways that can greatly benefit the trust participants.

Trusts to Avoid Probate

Revocable Living Trust

A Revocable Living Trust is frequently used to manage assets in the case of the disability of the creator of the trust. The estate plan goals of using a revocable living trust are frequently asset management during life or disability, and direction of the benefits of assets for the next beneficiaries after the death of the initial trust creator. Revocable Living Trusts are set up during your life and can continue as irrevocable dynasty or spousal trusts after the death of the trust creator.

Trusts That Permit Government Benefits

Special Needs Trust

A Special Needs Trust is used to allow a disabled person to continue to receive government benefits even though there is trust money available to pay for things that the government benefit might not. Special Needs Trusts can be set up for the benefit of someone else as in the case of a parent or grandparent leaving property for a disabled child or disabled grandchild. Special needs trusts can also be set up by the disabled individual. This is the case where the victim of negligence receives an award. If they are likely to be disabled for the rest of their lives, they can have the proceeds of the law suit placed in a special needs trust.

Trusts vs Wills

Choosing Between a Trust or a Will

Should you use a trust or a will? A good estate plan typically includes both a trust and a will. However, in choosing whether to use a trust you must look at your goals. Some of the benefits of trusts over wills are that the trust assets are available immediately after death. In New York a probate estate typically takes no less than nine months to settle. While the minimum statutory time for distribution is nine months, the probate proceedings can take years to be resolved. With a trust there is no need to wait for probate. Also, the expense of probate can be eliminated. The public process of probate often encourages will contests. Estranged family members or predatory creditors are permitted to make claims against your estate. Without you to refute these claims it becomes difficult and expensive to fight them. With a trust, these people typically have no idea that your estate is changing and are prevented the opportunity to make such claims.

Power of Attorney

When Is A Power of Attorney Effective

Durable General Powers of Attorney – A power of attorney is a legal document that allows you to give someone else the power to make legal and financial decisions for you. The power of attorney takes effect immediately. Great care should be taken in the decision of whether to make a power of attorney and who to name as your agent. While a power of attorney is a useful estate planning tool, if your agent abuses the power granted it can be difficult or impossible to recover property improperly transferred. In a power of attorney you can name one or more than one person as your agent, you can name successors, and you can state whether or not it remains effective upon your disability. A power of attorney can be a crucial necessary tool in a Medicaid crisis application. However, if you have not made one before the crisis, it may be too late. You cannot make a power of attorney if you lack the mental capacity to understand what you are signing.

A power of attorney is effective as soon as you sign it. A power of attorney ceases at death. That means that your agent in a power of attorney cannot act for you or your estate once you have passed away.

Living Will & Healthcare Proxy

Legal Authority Granted by HealthCare Proxy

Health Care Proxy – New York permits you to appoint a proxy, that is, someone else to make medical decisions for you. You can give blanket authority to the person, or you can specify the kinds of treatments you would consent to or refuse if you were able to speak for yourself. These documents are typically end of life documents. Health Care Proxies deal with decisions regarding artificial life support. While the standard or typical health care proxy may be suitable for granting authority, they need to be carefully drafted if you want to ensure that your wishes are carried out. For instance, the health care proxy should state that the authority granted never passes to the medical institution. A good health care proxy complies with the HIPAA laws of the state and federal government disclosure laws.

A living will is a statement of your wishes. It is not legally enforceable. Although many living wills focus on end of life decisions, such as whether to administer artificial life support, it can be more. A living will can also state your preferences about how you want to live if you become mentally incapacitated. For instance it can state what foods you prefer. It can state whether you prefer to have visitors, and that you would prefer to remain living in your house.

What a Good Estate Plan Looks Like

A good estate plan is based on a process. Legal documents are tools used by estate planning lawyers to put your wishes about you and your family into legal action. A good estate plan:

  • Let’s you define when and if you are incapacitated
  • Plans for you, your spouse, your kids, and her kids
  • Takes into account your IRAs
  • Minimizes the costs of gift and estate taxes, and probate
  • Is drafted for your individual family situation
  • Takes into account business interests
  • Has follow through and is updated based on changes in the law and your life