Estate planning faqs

These are general responses and do not constitute legal advice. Everyone’s circumstances are different. If you want advice on your specific situation, you should contact my office for a free consultation.

Yes. A will is a legally binding declaration of who will receive your property upon your death. If you die without a Will, New York State law will determine how and to which family members your assets and property will be distributed. By preparing a Will, you ensure that your assets and property are distributed according to your wishes and to whomever (family members, friends, charitable organizations) you choose. If you have minor children, you will be able to appoint a guardian and trustee for them in your Will.  When you make a Will, it is also a good idea for you to execute a Health Care Proxy and a Power of Attorney.

A Power of Attorney is a legal document in which you appoint a trusted family member or loved one to act on your  behalf should you become incapacitated. Your appointed agent will have the authority to handle your income and assets, including banking matters, real estate transactions, and more on your behalf. A validly executed Power of Attorney is an important tool which will allow you to engage in Estate Planning and asset protection planning even in the event you suffer a debilitating illness. However, a Power of Attorney does not authorize your agent to make medical decisions on your behalf in the event you become incapacitated.

A Health Care Proxy is a legal document in which you appoint a person you trust as your health care agent authorized to make medical decisions on your behalf in the event you are unable to make those decisions yourself. Your Health Care agent will advocate for the treatment and care you want in the moments when you're not able to do so yourself. As a result, this person should be someone you trust, who knows your wishes about medical treatment and is willing to take responsibility to ensure your wishes are followed. Your Health Care Agent’s authority is limited to medical decisions, and does not empower your Health Care Agent to handle your income or assets. Therefore, proper Estate Planning requires you to execute both a Power of Attorney and a Health Care Proxy.

It is a good idea to review your existing Will and related documents (i.e., Health Care Proxy, Power of Attorney, etc.) every five years. This will enable you to ensure that your documents reflect your current wishes and your current situation.

For example, as your children age you may no longer need to appoint potential guardians for them, and you may even want them to act as your agent on your Power of Attorney or Health Care Proxy. Also, someone you appointed your agent under your Power of Attorney may no longer live in your area and as a result there may now be a better choice.

Reviewing these documents every five years will ensure that they achieve the results that you desire. You should also review your Estate Planning documents when you have a significant life event such as the birth of a grandchild or the death of a spouse. Again, this will ensure that your documents achieve the results you desire.

While it is a good idea for any adult to have a Health Care Proxy, generally you should consider having a Will and related documents prepared when you start to accumulate assets and/or get married and have children. Also, there are other methods of Estate Planning that should be continually addressed. These include setting up your bank accounts and real estate in a manner in which they can pass to the desired recipient upon your death without having to probate your Will. It is a good idea to have this information as you start to acquire assets so that you can ensure that they are held in a way that will effectuate your wishes.

In order to effectuate the terms of a Will, upon the death of its creator a legal action must be commenced in the New York State Surrogate Court. This legal process is known as “probating” a Will. The probate process can be time consuming and expensive. Because of this, much of Estate Planning involves avoiding probate by having your assets held in a way in which they would pass automatically to your intended recipient upon your death (i.e, by way of a trust or a specially created bank account).