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Estate Planning

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A comprehensive estate plan will ensure the appropriate needs and goals are met. Stock photo

By Nancy Burner, ESQ.

Nancy Burner, Esq.

Young adults may have the misconceived notion that estate planning is only necessary for certain people, such as individuals of a high net worth or those who are aging. However, there are certain documents that everyone should consider, including the youngest generation of millennials. Having such a plan in place can avoid costly court proceedings as well as plan for your family should you become incapacitated or upon your death. 

An estate plan for a millennial would likely include a health care proxy, living will, power of attorney and a last will and testament.

First, anyone over the age of 18 should have advanced directives including a health care proxy and power of attorney. A health care proxy is a document that states who will make your medical decisions if a doctor deems you unable to make them for yourself. 

Many people assume that either their spouse or parent is entitled to take on this responsibility should they lose their mental capacity. This is not entirely incorrect. New York State has the Family Health Care Decisions Act that establishes the authority of a patient’s family member or close friend to make health care decisions when the patient did not leave prior instructions. 

However, this is only in effect when you are in a hospital or a nursing facility. Therefore, without an agent named on your health care proxy there is no one with authority to make decisions outside of these settings. Additionally, the person who would have authority under this law may not be the one you would have ultimately chosen to make such decisions. By naming someone in advance, you will avoid these potential issues. 

You may also wish to execute a living will. This document specifically addresses treatments or procedures you may want or want to withhold in relation to end of life care.

The next document you should execute is a comprehensive durable power of attorney. This is a document that allows your named agents to make financial decisions on your behalf and assist in taking care of your daily financial obligations. A power of attorney is practical should you become incapacitated or unable to handle your bank accounts or assets at any time. 

Should you not have these advanced directives in place and become incapacitated, your loved one may have to commence a guardianship proceeding to have the authority to make these decisions. Guardianship proceedings can be costly and time consuming for all involved. Additionally, it may involve family members in the court proceeding that you did not intend to include in your daily affairs.

Finally, when executing a last will and testament, you can designate your beneficiaries, the specific items or amounts you will leave them and how they will receive your assets. These designations are especially important for individuals with minor or disabled beneficiaries. If your beneficiaries include minors or disabled individuals, an attorney can draft your last will and testament to make sure they receive their share in an appropriate trust and that a specific person or entity is named to manage the assets on their behalf. Additionally, you can name whom you would like to act as the guardian for your children within your will.

Regardless of your age, a comprehensive estate plan will ensure the appropriate needs and goals are met for you and your family during your lifetime and upon your death.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. 

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There are a number of questions that must be answered before a determination can be made. Stock photo

By Linda M. Toga, Esq.

Linda Toga, Esq.

THE FACTS: Approximately five years ago, my father remarried and he and his second wife, Mary, purchased a house together. At the time my father told me that he alone paid for the house and that his plan was for the house to pass to me and my sister when he died. My father is now very ill and suffers from advanced Alzheimer’s. He never updated his will, which leaves his entire estate to me and my sister.

THE QUESTION: What is going to happen to the house when he dies? Will my sister and I inherit the house?

THE ANSWER: What happens to the house will depend on a number of factors, including how title is held and whether Mary waived her marital rights in your father’s estate.

HOW IT WORKS: Generally when a married couple buys real property, the property is held jointly as “tenants by the entirety” unless the deed states otherwise. That means that upon the death of the first spouse, the surviving spouse owns the entire property outright. There is no need to have a new deed prepared transferring the property into the name of the surviving spouse since the transfer is automatic “by operation of law.” The surviving spouse need not take any action for ownership of the property to be transferred.

If, however, the deed states that the parties own the property as “tenants in common” or states that the parties each own a specific percentage of the property, the surviving spouse only owns the percentage of the property set forth in the deed. If your father owned the property with Mary as tenants in common, the share of the property owned by your father will pass under his will.

As I mentioned above, how title is held between spouses only addresses part of the question. What is going to happen to the house may also depend on whether Mary waived her marital rights and, if she did not, whether she chooses to exercise her right of election.

Mary may have signed a waiver stating that she was not going to enforce the rights she would have to handle your father’s estate and to receive a one-third share of that estate. Absent such a signed waiver, Mary may exercise her right of election and would be entitled to approximately one-third of your father’s entire estate, regardless of the terms of his will or the manner in which he held property.

For example, if your father owned the property in question jointly with you rather than Mary, and the property was valued at $300,000, Mary could demand that the estate satisfy her right of election by turning over to her assets with a value of $100,000.

Even if the property is held jointly with Mary so that she becomes the sole owner upon the death of your father, Mary can still demand other assets from your father’s estate if the value of the property passing to her by operation of law is not equal to one-third of your father’s total estate. Whether she makes such a demand will likely depend on her own financial health, the size of your father’s estate and her relationship with your father.

Even when there is no waiver, it is not unusual for a surviving spouse to honor the wishes of the decedent and decide against exercising her right of election.

Clearly, there are a number of questions that must be answered before a determination can be made about what will happen to the house when your father dies. Additional questions will arise if Mary decides to exercise her right of election. Under the circumstances, you should seek the expertise of an attorney with experience in estate administration to assist you when the time comes.

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, wills and trusts, guardianship real estate, small business services and litigation from her East Setauket office.

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There are many reasons why estate planning is important.

By Nancy Burner, ESQ.

Nancy Burner, Esq.

Regardless of your age, the creation and maintenance of a thorough estate plan is essential. An estate plan ensures that your needs, your family’s needs and financial goals are met during your lifetime and upon your death. A thorough and comprehensive plan should include a last will and testament, health care proxy, living will and power of attorney. For some clients the creation of a trust is also practical. Through the creation of a last will and testament and/or a trust, you can establish how your assets will be distributed upon your death.

Additionally, you can ensure that the financial needs of your children or disabled beneficiaries are met after you pass away by establishing trusts for their benefit. By creating a health care proxy, you can designate a succession of individuals to make health care decisions on your behalf, if and only if you are incapable of making them on your own. An estate plan would also include the creation of a power of attorney, through which you can designate someone to handle your financial matters in the event you become incapable of doing so.

Once you have taken the time to create your estate planning documents, you must properly store and protect these original documents. This is particularly important with regard to your power of attorney since many banks and financial institutions require the original signed document. Additionally, the executor of your last will and testament must file the original document with the Surrogate’s Court. It is important to remember to not remove the staples from your original last will and testament.

When deciding where to keep your documents, you should consider who will be acting as your agent, trustee or executor. It is important that you keep your documents in a place where your named agent can easily find and access them. It is not recommended to keep your documents in your safe deposit box. Banks have strict rules about who they allow to open and access safe deposit boxes. This is especially problematic should you become incapacitated or upon your death, since you may be the only one with access to the box.

While some people believe that having a jointly owned safe deposit box will solve this problem, banks have been known to freeze access to safe deposit boxes even when there is a joint owner. If the bank does not allow access, your agent will need a court order to open the box and locate the documents. The most accessible place to keep your documents is in your home or office. It is important that you tell the individuals you name as your agents where your documents are located. The best way to protect your documents from damage is to keep them in a fireproof and waterproof box. However, if you choose to use a safe, make sure that your trusted agents have the safe lock combination.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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Portrait of Elderly man lost in thought

By Nancy Burner, ESQ.

Nancy Burner, Esq.

Much of the estate planning discourse revolves around planning techniques for the married couple, whether it be for tax planning or asset protection planning. However, for seniors who have never married or for those whose spouse is deceased, what, if any, special considerations need to be made? This article will focus on some of the unique challenges that the unmarried senior may face.

For the single individual who is living with another person but is unmarried, planning should be done to specifically provide for that partner, if so desired. It is important to recognize that partners are not given rights to property the way spouses are. Even if a person has resided with another for decades, without proper estate planning, that partner will not be entitled to assets of the decedent. If the plan is to give property to a partner after death, one should make sure that they designate that partner as a joint owner or as a beneficiary.

Having a will that designates a partner as the beneficiary of the estate can also ensure that property passes to the partner. However, in order for the will to be carried out, it must go through probate.

In New York, the probate process includes notifying and obtaining the consent of the decedent’s heirs. For instance, if a single individual with no children dies, but the parents or siblings of that individual survive, consent must be obtained from those parents, or if deceased, the siblings.

If the family members do not consent, they have the opportunity to present objections to the will that leaves assets to the partner. If their objections are successful, the will is invalidated and the law of intestacy prevails, which assumes the deceased person would have wanted their estate to be distributed to their family members, and not their partner. If a potential conflict may arise between a partner and family members, planning to avoid probate should be a primary goal of the estate plan.

For the unmarried person who is “unattached” and does not have a close relationship with any relatives, avoidance of probate is likely also an important goal particularly if they are charitably inclined since consent of family members is still required even when the beneficiary of a will is a charity. In addition, singles who are living alone should consider planning techniques that will allow them to maximize their assets so that they can get long-term care.

Being cared for in old age is difficult enough when you have a spouse or partner to help you, but if you live alone, you’ll want to preserve assets and income to the fullest extent so that you can get the care you need. This may include looking into long-term care insurance or doing asset protection planning, or both!

What if a single person is living with a partner and is desirous of providing for that partner, but wishes for their estate to ultimately be distributed to other family members? It is very common that a widow or widower has a relationship with someone for whom they wish to provide but wants to ensure that their assets go to their children after both partners are deceased.

The best technique for implementing this kind of plan is to use a trust. Trusts can hold assets for the lifetime of the partner but distribute the assets to other family members after the partner’s death. Trusts also avoid probate so that potential contests are avoided. Depending on the type of trust utilized, trusts can also protect assets in case either partner needs Medicaid to pay for long-term care.

In addition to the foregoing considerations regarding leaving assets at death, it is equally important to remember that partners, friends or indeed family members do not have rights to make decisions without proper planning. An estate plan is not complete without comprehensive advance directives that allow loved ones to make health care and financial decisions for you if you are incapacitated.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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