Frequently Asked Questions
Why does someone need a Will?
Every State has legislated default provisions for estates when a person dies without leaving a Last Will and Testament (intestate). In New York, that law is found in EPTL 4-1.1 and it sets out how a deceased person’s estate is to be distributed. By executing a Last Will and Testament, you override the State provisions and you decide how you want your estate to be distributed instead of the State’s default provisions. The State will remain the surrogate over your estate until your Last Will and Testament is admitted to probate in the Surrogate’s Court in the county where the decedent was domiciled and an executor is appointed. The probate of a Last Will and Testament is a public process and your Will is available for public viewing.
Why might someone need a Trust?
There are three types of trusts: a testamentary trust, which only becomes effective upon your death, and is only valid if your Last Will and Testament is approved by the court; a revocable living trust that helps you during your life and then gives away the property after your death, thereby avoiding the probate process; and an irrevocable trust that offers advantages not available by other means, such as to protect assets from having to be spent down on long-term care costs, to keep life insurance proceeds from being taxable in your estate, to transfer your home or vacation home to your children in a tax favorable manner, to make qualifying annual exclusion gifts to minors, or to protect governmental benefits for a person with disabilities. Both revocable and irrevocable trusts are private contracts and keep your assets from prying eyes; testamentary trusts are public to the extent that your Will is. You still need a Will for a revocable and irrevocable trust, but it will be a pour-over Will to take care of assets that were not transferred to the trust before your death.
Why is a Power of Attorney important?
You don’t want a complete stranger making decisions for you. Should you become incapacitated and unable to make legal and financial decisions, no one else can make those decisions for you without going to the Surrogate’s Court and initiating a guardianship proceeding wherein the court will appoint a guardian of your person and your property who will make legal and financial decisions on your behalf. A Power of Attorney eliminates the need for a guardianship proceeding because you take control by naming an agent to make legal and financial decisions for you when a triggering event, such as mental incapacity, occurs.
Why does someone need a Health Care Proxy?
Should you become temporarily or permanently unable to make health care decisions for yourself for any reason – such as dementia, a stroke or a head injury – your health care agent can step into your shoes and make health care decisions for you, including end-of-life decisions and organ donations. In New York, we combine a Health Care Proxy with a Living Will that recites your health care wishes and is signed by you and two witnesses, and is notarized.