Three Fundamentals of Estate Planning in NY

Posted On October 12, 2023

Estate planning law encompasses drafting of wills, trusts, guardianships and other documents that facilitate the transfer and management of property after death.

In the absence of a plan, the distribution of a loved one’s assets after death can sometimes get very challenging!

At New York Legacy Lawyers, our team of skilled New York estate planning lawyers’ goal is to help you to get ahead of these challenges by laying out the best possible plan for managing your assets in life and transferring them in death or incapacitation. Call us today at (718) 713-8080 to schedule a consultation.

Estate Planning NYC

Estate planning in New York City (NYC) extends beyond merely drafting a will. It involves strategizing to prevent family disputes, optimizing access to government benefits, minimizing tax liabilities, and ensuring your long-term care desires are clearly expressed. This guide aims to provide some fundamental insights into NYC estate planning.

Contrary to popular belief, estate planning isn’t just for those with large, taxable estates. Regardless of your estate’s size, having an estate plan is crucial. Estate planning includes more than tax minimization; it employs wills and trusts for various purposes suiting individuals across different financial circumstances.

Preparing a Last Will and Testament is a key part of estate planning. It allows an individual to dictate the distribution of their assets after their demise. In the absence of a will (a state referred to as intestate), the law of the jurisdiction where the deceased lived determines how the assets are distributed. For instance, in New York, if a person dies intestate, leaving behind a spouse and two children, the spouse gets the first $50,000 of the estate plus half the remaining balance. The children share the rest. If a person wishes to leave all assets to their spouse, this would not be followed without an estate plan.

Please continue reading to see how Wills, Guardianships, & Trusts form the essentials of any estate plan.

Estate Plan Fundamental #1: Draft a Last Will and Testament

A Will is a legal document used to outline your preferences regarding how your estate should be handled after your death. A will is very important to your heirs as it eases the transfer of property quickly and helps the survivors avoid unfair tax burdens. It is also a way of expressing your deepest sentiments to your loved ones.

Depending on the estate size and preferences, a will can be a simple single-page document or a large detailed volume. A will should describe your estate, the people who will receive specific properties, instructions about care of minors, or disinherit people expected to get the property.

Wills requirements in Brooklyn, New York, state that a testator (the person making the will) should be an adult of sound mind. The will should be written and signed by the testator, unless they are unable to do so in which case, the testator must appoint another person to sign it before a witness, and the signature witnessed.

A will may have legal limitations which may restrict the testator from giving the full effect of their wishes. It’s best to discuss these points with an estate planning attorney directly.

Brooklyn estate planning attorney

Estate Plan Fundamental #2: Plan for Guardianship

Your estate plan must address the issue of caring for your children in the future in case both parents are deceased (or unfit). Though no one wishes to die and leave their young dependent children, it can happen, and you need to be prepared for this. Your estate planning should include Guardianship provision, which is a legal relationship established by a court of law to give the responsibility of care and protection of minors to someone other than the parents. The court gives legal authority to the appointed guardian to make decisions concerning the child.

In Brooklyn, New York, the guardian must be 18 years and above, and a citizen or legal resident of the United States. Guardianship provisions should be included in your will alongside your other instructions upon death. You can also appoint a guardian for your minors in your will. When you include guardianship provision in your will, you will be at peace knowing that your children will be well taken care of in case of your death.

If you leave out a guardianship provision in your will, or have not established guardianship provisions, a judge will appoint a guardian for your children (without your input). You might imagine, this could end up very messy!

Estate Plan Fundamental #3: Establish a Trust

In estate planning there are several different types of trusts, but at that root they all function is similar ways.  When you establish a trust, you are creating a separate legal entity that you will then transfer some, or all, of your assets to.  When creating the trust, you will decide on a means for distributing the assets and you will designate a beneficiary of that trust.

Sometimes it’s easier to describe something like a trust by giving an example.

John and Kate set up a trust naming themselves as trustees.  They transfer their assets into the trust and still retain access to all the assets they owned before the trust was established).  They designate that upon their passing, the successor trustee will be their daughter Lisa and the assets in the trust shall be disbursed according to their wishes.

If you need other examples, please connect with us and we will walk you through all sorts of different trust types and which one best applies to your situation.

Estate Plan Fundamental Description
Draft a Last Will and Testament A legal document outlining how your estate should be handled after your death. It simplifies property transfer, helps survivors avoid unfair taxes, and allows you to express your sentiments. Requirements in Brooklyn, New York, include being an adult of sound mind and proper signing and witnessing.
Plan for Guardianship Address the care of your children in case both parents are deceased or unfit. Include Guardianship provisions in your estate plan, specifying who will care for your minors. In Brooklyn, guardians must be 18 or older, U.S. citizens or legal residents.
Establish a Trust Create a separate legal entity to transfer some or all of your assets. Decide on asset distribution and designate a beneficiary. Trusts ensure assets are distributed according to your wishes. Example: John and Kate set up a trust, designating themselves as trustees, and their daughter Lisa as the successor trustee.

Estate Plan Fundamental #4: Get an Estate Planning Attorney

While estate planning is critical, it is quite complex, and you will likely need an estate planning attorney to help navigate the details and provide you with advice specific to your situation.

We help people just like you create all these documents and more with our support.  Contact us today for assistance. Seek legal guidance from our New York legacy lawyers.

LIVING WILL VS. LAST WILL AND TESTAMENT

A living will and a last will and testament are two essential legal documents of an individual’s estate plan. Although these documents share similarities in that they provide instructions for the management of a person’s affairs, they have distinct differences in focus, duration, and revocability. 

An advance directive, commonly referred to as a living will, is a legally binding document that allows people to express their medical treatment and decision-making preferences in case they become incapable. The document typically encompasses directions for life-sustaining measures, organ donation, and other medical interventions. It is a critical tool for ensuring that an individual’s wishes regarding their medical care are respected and followed, even if they are unable to communicate them at the time. A living will only goes into effect if the individual becomes incapacitated and can be revoked or revised at any time while they are still alive. 

Alternatively, a last will and testament is a legal instrument that specifies an individual’s desires for the allocation of their assets following their demise. It includes the designation of an executor to manage the distribution of assets and naming of beneficiaries. A last will and testament only goes into effect after the individual’s death and can only be changed by creating a new will or adding a codicil, which is an amendment to the existing will. 

Despite these differences, a living will and a last will and testament are crucial components of an individual’s estate plan. They ensure that a person’s medical and financial wishes are followed and can provide peace of mind for themselves and their loved ones. At New York Legacy Lawyers, our team of New York estate planning lawyers may be able to guide you in creating a comprehensive estate plan that includes both a living will and a last will and testament. Contact us today at (718) 713-8080 to schedule a consultation.