What are the responsibilities of a fiduciary in New York?

A fiduciary is a person who is responsible for administering the estate of a deceased person. Depending on the circumstances, some fiduciaries will be referred to as executors, and some will be called administrators. An executor is a person who was named specifically in the deceased person’s will as the individual who would be charged with managing the estate. When a person dies who had no will, the court will appoint an individual to be the estate administrator.

Fiduciaries are responsible for collecting all of the deceased person’s assets and ensuring that they are distributed to the proper individuals. Payment of any debts or obligations owed by the deceased person must also be completed as long as the estate has adequate funds to do so.

A fiduciary is also responsible for filing any tax forms that are required for the estate. The decedent’s final state and federal income tax returns might need to be filed along with an estate tax return and a fiduciary income tax return. While managing the estate, a fiduciary may have to open a checking account on behalf of the estate to collect any funds that need to be kept apart from other funds.

While performing the obligations of a fiduciary, it is important that an individual maintain careful and accurate records. After being appointed to a fiduciary position, a person with very little experience dealing with financial matters may feel overwhelmed by the tasks. An attorney might be able to assist someone with their fiduciary responsibilities and help ensure that the estate is managed properly. Because every estate involves its own unique variables, the information in this blog is not comparable to personalized legal counsel.

Source:  NYCourts.gov, ” Fiduciary Responsibilities “, October 19, 2014

Executing and attesting a will

In order to properly execute a will, residents in New York may need to understand more about the state requirements governing the process. Most wills are completed in writing, and most are executed and attested in similar fashion. The person whose name is on the will is referred to as the testator. The will must have the testator’s name, and signature included at the end in order to be approved. The document must be signed in front of witnesses who then attest to the event in order to be legitimized by the court system.

The testator’s signature is to appear at the end of the will. Nothing attached to the document below the signature can invalidate the agreed upon terms described in the body of the will. The only point of interest proceeding the testator’s signature is the attestation clause. Someone can sign for the testator in their presence and under their direction, but the person providing the assistance is required to include their own name and address on the document as well.

A will cannot be approved if the person signing the testator’s name does not provide his or her own signature as well. Forgetting to include their address, however, is permissible. The person signing for the testator does not qualify as a witness who can attest to the legitimacy of the document. State law requires at least two witnesses two attest to the testator’s signature and supply their own signatures and addresses in writing within a 30-day period.

People who need assistance writing a will or understanding more about the state requirements may benefit from consulting legal counsel. Lawyers may be able to perform a comprehensive review and evaluate of the testator’s estate, potentially minimizing the risk of adverse outcomes from arising for beneficiaries in the future.

Source:  Findlaw, ” NY Code – Section 3-2.1: Execution and attestation of wills; formal requirements – See more at: http://codes.lp.findlaw.com/nycode/ept/3/2/3-2.1#sthash.PgbWnyKz.dpuf “, October 13, 2014

New York wills require specific elements

A will is a formal document that allows individuals to determine how their possessions will be distributed upon death. It requires very specific actions to be taken to prove the validity of its contents. Failure to meet those requirements may thwart the maker’s intentions.

New York requires a will to be signed by the person making it, or signed on his or her behalf by another at the individual’s direction. There must be two witnesses, who must personally attest to it and observe the signing. However, they may sign within 30 days of the original signature if the individual personally tells them that the signature is in fact his or hers. The witnesses may sign at different times, but both must sign within 30 days of the individual’s signature.

No agency reviews and approves wills, so any problems will not come to light until after the person’s death. The will is offered to the court for probate after the death of its maker. Before the estate is distributed, the court must be shown that the will is valid. If the will has only one witness, or if the witnesses signed at a later date than the individual and there is no evidence that the testator affirmed to the witnesses that it was in fact her signature on the will, then the will may not be accepted. If the will is determined to be invalid, then the estate will be distributed in accordance with intestacy laws, which may not comport with the wishes of the decedent.

While the concept of a will is simple, the requirements are strict. Working with an attorney is a suggested way to ensure that the estate owner’s wishes are carried out.

Source:  Findlaw, ” Section 3-2.1: Execution and attestation of wills; formal requirements “, October 08, 2014

Considerations before choosing heirs

For many New York residents, estate planning may call to mind the consideration of a variety of different scenarios in order to determine the most attractive way to maximize distributions to heirs. The selection of those beneficiaries and the portion of wealth received by each may be less objective and more subjective.

Many people consider how much they want to leave to charitable organizations and which ones they want to enrich. They also consider family and friends. How much to leave to charities versus how much to leave to persons may be one of the first hurdles to jump.

After an amount is established for individuals, determining who gets how much is the next step. Sometimes the owner of an estate may decide not to distribute to heirs evenly but may decide to give funds based on good behavior, hard work or need. Some wealth holders may be apprehensive that an heir is not prepared to handle a large amount of money or that an heir could be demotivated when too much money is placed at his or her disposal. Whatever the logic used to make the allocation, the most difficult step could be communicating to the future beneficiaries in advance how the wealth will be distributed.

Planning the sharing of an estate may entail a lot of paperwork, calculations and decisions. Many people choose to include input from an attorney when they are planning the disposition of their assets. An attorney may be able to help ensure that the estate planning documents comply with laws of the state of residence and that they are accurate and properly prepared. The attorney can also suggest when it is appropriate to establish trusts rather than giving cash or other assets directly to a beneficiary.

Source:  Forbes, ” Estate Planning 101: Picking Your Heirs “, Larry Light, September 24, 2014