Garden City, NY Estate Planning Law Firm Specializing In Legal Wills
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What is a Will (Last Will and Testament)?
A Last Will and Testament, known simply as a Will, is a formal, legal document, governed by
strict statutory requirements. It directs how a deceased person's property and assets will be legally distributed to named individuals and entities.
What should be in my Will? Only an experienced estate planning law firm can truly understand your unique situation and draft a Will that clearly states your intentions. In general:
- A Will should direct how and to whom assets will be distributed
- A Will should appoint an Executor to marshal assets, manage them during probate and settle the estate
- A Will can create a trust to provide for a disabled or
incapacitated spouse, life partner or other Beneficiary, or in
anticipation that such Beneficiary may become incapacitated in the
future, and appoint a Trustee to manage the trust during the life of the
Beneficiary
- It should appoint a Guardian for minor children
- It can delay distribution of assets to a minor child until the child is capable of managing them
- It can utilize the Unified Estate Tax Credit to minimize estate taxes
- It can defer and potentially eliminate estate taxes by using the "Marital Deduction" which permits an unlimited transfer of assets between spouses
- It can reduce the tax impact to non-U.S. citizen residents
- It can reduce the "Generation-Skipping Tax"
We highly recommend that you work with an experienced estate planning attorney to craft this important estate planning tool so that it is valid, enforceable, complete and unambiguous. While a Will can
accomplish many important estate-planning objectives, it is only one
element of a well-designed estate plan. Your estate planning attorney can help you determine complementary estate planning strategies.
What are a Will's drawbacks? Used
alone, it does not enable you to take advantage of certain estate tax
reducing strategies during your lifetime. Because it is ineffective
until you die, it cannot provide a means to assist you with either financial management or
healthcare decision making should you become incapacitated.
Further, upon your death, a Will subjects your estate to the expense
and delay of a probate proceeding in Surrogate's Court. Then, your
estate becomes a matter of public record and exposes your entire
financial picture to the public. The typical, simple Will may indeed cost your family
tens of thousands of dollars in estate taxes and probate costs. An experienced estate planning attorney should be consulted to help you put a plan in place
that mitigates these possible financial losses and is part of a larger
wealth preservation strategy.
The Difference Between A Will, Living Will and a Living Trust People often confuse the terms "Will," "Living Will" and "Living Trust." A Will, also known as a "Last Will and Testament," is a legal document which directs the disposition of one's property after death to named persons or entities. A "Living Will" is a written expression of one's intentions about health/medical care and end-of-life decisions, including whether to receive or refuse life-prolonging treatment when one is incapable of communicating one's wishes either as a result of illness, accident or incapacity. The "Living Will" is sometimes also confused with a "Health Care Proxy" by which one can designate an agent to make health, medical and end-of-life decisions. A "Living Trust" is an entity created during an individual's lifetime which is frequently utilized in estate planning to provide for the management of trust assets, both during the creator's lifetime and after death. It can be an extremely flexible estate planning tool and can serve to distribute assets after the creator's death, much like a Will.
We are frequently asked whether having a Will avoids probate.
Actually, the opposite is true. If a Will is the foundation of your
estate plan, a probate proceeding is guaranteed to retitle the assets
you own in your name. For purposes of illustration, consider a home. Would you pay a stranger hundreds of thousands of dollars for a home
that belonged to someone who had passed away without some proof that
they were authorized to sell the house? Of course not. The document
that establishes the authority to sell the property is called Letters
Testamentary and is issued by the Surrogate's Court during the probate
proceeding. If there is no Will, the document issued by the
Surrogate's Court to evidence the authority to sell the property is
called Letters of Administration and this document is issued during
what is referred to as an administration proceeding.
Apart
from the cost and delay associated with a probate or administration
proceeding, the public nature of the proceeding is often quite
distressing. Everything in the Court's file, including the names and
address of your closest family members and beneficiaries, and a list of
your assets and their values is accessible to the
general public and can be used to contact your family members, for
solicitations regarding estate property and sometimes for other reasons.
We
can not overemphasize that the decision as to whether a Will, a trust
or another method of disposing of assets after a death is the best
alternative can only be determined after an evaluation by an
experienced and qualified attorney. All too often we have seen estate
plans created by well-meaning but unqualified attorneys, or even in a
do-it-yourself fashion by the decedent without the benefit of
professional guidance. We frequently redo out-of-date estate plans
that will otherwise cost the beneficiaries tens of thousands of
dollars, or more, in taxes and other unnecessary fees and expenses.
After one has spent a lifetime accumulating assets, it is discouraging
and unfortunate for large sums to be lost because a qualified
professional was not consulted. Do not let this happen to you!! We
offer a complementary review of our clients' estate plans every three
to five years. For our friends with whom we have not yet consulted, we are
available to review your strategies to make sure they correctly reflect
your current wishes at a nominal fee.
Read more of our Berwitz & DiTata LLP legal articles
about estate planning and estate administration. Stay one step ahead.
If you need assistance now, please call our estate planning attorneys at
516-747-3200.
Work With An Experienced Long Island Attorney: Planning and Drafting Wills
Looking for lawyers on Long Island, NY who specialize in preparing Wills? If you need assistance or have a question about Wills (a.k.a your Last Will and Testament), living wills, living trusts, contested Wills, or any form of estate planning, we urge you to contact our Garden City, NY estate planning law firm at 516-747-3200. We look forward to assisting you.
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| Wills Do Not Avoid Probate. However, Trusts Do. Click To Visit Our Trusts Page. |
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