What happens when fraud occurs when creating a will?

Usually, you expect that when a loved one creates a will, it is done of his or her free will without any interference and expresses his or her true wishes. However, there are cases in New York when a will is created under fraudulent terms. When fraud occurs, it can void the will and make it unenforceable. Of course, you must first discover fraud has been committed. 

The New York City Bar Association fraud occurs when someone influences a person to make certain property decisions in his or her  will through lying or coercion so the final will benefits the person committing the fraud. It could be something as simple as someone not telling you the location of someone you want to leave assets to or as complex as someone manipulating you into thinking your intended heirs should not receive your assets. 

If you suspect that a loved one’s will was created by fraudulent means, then you can contest the will after he or she dies. You will have to go to court and prove the fraud occurred. If the court rules in your favor, the will may be deemed invalid. The court may also rule only certain parts of the will are void. 

The bottom line is a will should be created without influence from anyone else. You should leave your assets to whomever you want and not listen to what others have to say. This information is for educational purposes and is not intended to be used as legal advice. 

Why payable on death accounts should be used with caution

As someone who is planning their estate and future legacy in New York, it is likely that you are familiar with payable on death accounts (POD), otherwise known as transfer on death accounts (TOD). They are generally known as a great way to go about avoiding probate on the assets contained within these accounts.

Avoiding probate tends to be considered as advantageous by most since it means that assets are transferred quickly and directly to allocated loved ones without needing to go through the lengthy and expensive probate process after the event of your death.

Attempting to avoid the probate process

Bypassing probate can be done in two main ways in New York: by creating a joint account, or by creating a POD account. Joint accounts can be created with your spouse, for example, or in conjunction with your child. In the event of one person’s death, the surviving account owner will automatically own the assets within that account. However, there can be problems that arise when the joint owner is a minor, or when a joint owner decides to add new owners to the account.

Words of caution for payable on death accounts

POD accounts can be a great way to ensure the transfer of assets after your death. They can be created by designating a beneficiary on your bank account. They are an easy and efficient way to prevent probate, however they should be chosen with some caution . The following are some reasons why they can be less than optimal:

  • When one of the designated beneficiaries dies before he or she inherits the assets held within the account, it can cause complications when it comes to deciding how much is owed, and to whom.
  • If there is only one beneficiary, and that beneficiary passes away before he or she inherits the assets, it can also mean that the account will automatically go through probate unless another beneficiary is designated.
  • When multiple beneficiaries are designated, they must have an equal share of the assets. Therefore, there is no flexibility in POD accounts if you would like to give one of the beneficiaries a larger share.

Deciding upon the best way to avoid going through probate can be a complex and very personal task. It is important, therefore, that you conduct thorough research into POD accounts before deciding to move forward with the commitment.

How do I create the best trust for my children?

While it is not the most pleasant subject for adults in New York to think about, preparing for your death is important to securing the future of your children. You do not want to wait until it is too late to plan for how your children will inherit your assets. That is why now is a good time to consider how to make the best trust for your children while avoiding possible pitfalls.

An article run on the CNBC website lays out the possible problems that can arise with creating a trust. One of them is giving your children too much from the trust too early. When your children are young, it is natural to set an early date, such as eighteen years old, for them to receive money from the trust. However, you do not know how responsible your children will be with money until you have watched them grow into adolescence and then into young adulthood. As your children grow older, you might observe that they are not ready for sudden inheritances of substantial amounts of money.

A possible solution is to put off releasing large portions of money from the trust until the children are of an age that satisfies the parent. A parent can see to it that their children will receive some money in their early adult years while keeping the bulk of it for later. Some parents may elect to simply wait until their children are older to observe how mature and capable they are and then change the terms of the trust to delay large inheritances, but many trusts do not allow for this kind of alteration once they have been established. Sometimes a parent can give a trustee some latitude in releasing trust assets sooner if necessary.

Parents should also think about the specific needs of their children. Children vary according to all kinds of variables, from age to personality to medical needs to education, so it is important to consider how best to treat each child when it comes to their inheritance. For example, a child with special needs is likely to require long term assistance. However, while inherited assets from a trust may help the child, they can also count against Medicaid or SSI benefits. In such a case, attorney consultation may be necessary to navigate federal tax laws so your child does not lose out.

This article is intended to educate the reader on estate planning for children and is not to be taken as legal advice.

Who are the people involved in a trust?

New York probate court could serve several crucial functions for you, such as settling disputes between inheritors or discerning the intention of will authors. However, you may find it in your best interest to avoid probate altogether: This is often the preference of individuals with high net worth who expect to leave a large estate behind. Avoiding probate in these cases might hasten the disbursement of property from your estate to your beneficiaries. It may also help you circumvent court fees, professional service costs and even reduce tax.

To this end, you might consider establishing a living trust. The first step to understanding the function of trusts— a unique form of property ownership— is identifying the people involved.

According to the United States Department of the Treasury, the three necessary positions in any given trust  you might establish are:

  • The creator of the trust, typically called a grantor
  • The manager or managers of the trust, also known as trustees
  • Those who benefit from or who are paid by the trust: the beneficiaries

You might hear different terms for these positions, but, regardless of the terminology used, these three essential functions form the basis of trusts. Basically, you would fund an account with property to be managed by specified or court-appointed individuals, creating a trust. Your trust managers then execute the terms of the trust by passing the property on to the beneficiaries.

The peculiarity of many living trusts is that you could be both the creator and beneficiary of the trust. In addition, living— or inter vivos— trusts are often revocable, meaning that you could dissolve one almost any time you choose to do so. There is one final note about living trusts you might find suited to estate planning: One might name another beneficiary to receive the property of the trust after the initial beneficiary passes. Since this happens outside of your will— as opposed to a testamentary trust, which your executors would enact upon your passing— this transfer of property would usually not require the opinion of a probate court. Please view this article as educational material, not as legal advice.

What changes with the new federal estate tax law?

If you are planning your estate in New York, you may want to take a minute to review the new federal estate tax law. This could change what you do with your assets. If you already have an estate plan, you may want to make changes so your estate does not go to probate or other issues do not arise due to this new law. 

According to MarketWatch, the  federal estate tax law change went into effect on the 1st of January. This tax, also often called death tax, has some good and bad effects on your estate. It is first important to understand what does not change under the new law.

Assets you own still will be valued at their value at the time of your death. If you were to gift the asset before you die, this would cause an effect because you do not own the asset anymore. This part of the law is intended to help with capital gains and losses. Many people try to gift assets to avoid the heirs having to pay taxes, but this could be detrimental because the asset will not qualify for forgiveness if it is not owned by you when you die. 

What did change, however, is beneficial to you and your heirs. The law increased the monetary value of assets before they are taxed. Basically, this means you can own more because the taxation will not start until you reach the newer, higher threshold. For married people, the amount is $22.4 million, and single people get up to $11.2 million. This information is for education and is not legal advice.