Many people consider creating a trust either to complement their will or in place of a will. There can be several tax benefits to using a trust for certain types of assets, as well as avoiding hefty inheritance taxes and estate taxes.
If you are considering creating a trust in New York, there are several key things you need to know about naming beneficiaries on life insurance, 401(k)s, IRAs, and other such financial accounts with named beneficiaries.
To begin with, there is a difference in how insurance policy beneficiaries can be named, depending on whether you want to create a revocable living trust or irrevocable living trust. In a revocable living trust, the grantor of the trust can continue to make changes and update the trust until their death. They also can draw distributions from the trust.
In an irrevocable living trust, once it is established, it cannot be updated, changed, altered, or modified without the beneficiary’s or beneficiaries’ permission. All rights and claims the grantor previously held to the assets moved into an irrevocable trust are given up.
Revocable Trusts and Naming Beneficiaries on Life Insurance
If you want the proceeds from your life insurance to go directly into your revocable trust, then you need to update the policy to name the trust as your primary beneficiary. There is no need to add secondary beneficiaries since you have a trust.
On the other hand, let’s assume you wanted your wife to have access to the life insurance proceeds immediately, without having to wait for a distribution from your trust. Then you would want to name her as the primary beneficiary and your trust as the secondary beneficiary. This way, if your wife passes away before you do, then the proceeds go directly to your trust upon your death.
Irrevocable Trusts and Naming Beneficiaries on Life Insurance
The process of naming beneficiaries on life insurance policies with irrevocable trusts is similar to that of revocable trusts. You could list your trust as the primary beneficiary. Then the person designated as the beneficiary of the trust would receive the proceeds from your life insurance.
You could also list a person as the primary beneficiary and the trust as the secondary beneficiary. If the primary beneficiary is still alive upon your death, then they receive the proceeds from the life insurance policy. If they are also dead, then the proceeds are transferred to the trust and the beneficiary of the irrevocable trust.
What About Naming Beneficiaries on Other Types of Accounts?
For any type of account where you name a beneficiary, like a 401(k), IRA, savings account, etc., you would want to list your trust as the primary beneficiary when you want the proceeds to be transferred directly into the trust.
Or, if you wanted all or some of the proceeds to go to a named beneficiary, then you would list them as the primary beneficiary or stipulate the percentage they would receive upon your death. You would list your trust as secondary or as a co-benefactor and what percentage should be transferred into the trust.
What if I Named Beneficiaries of My Life Insurance in My Will Too?
The New York State Probate Process would ensure that the beneficiary or beneficiaries named in your insurance policy received the proceeds regardless of the beneficiaries you named in your will. If you named your trust as the beneficiary, then the trust would receive the proceeds.
For further questions about revocable and irrevocable trusts, naming life insurance beneficiaries, and naming beneficiaries on 401(k)s, IRAs, and other financial accounts in Queens, Brooklyn, Manhattan, Jamaica, or New York City, please feel free to contact New York probate attorney, Ledwidge & Associates, P.C. at 718-276-6656 today!
One question that can arise as a result of the will probate process in New York is whether New York State probate law allows for the vacating of a probate decree. The purpose of the probate process is so the probate (surrogate) court and the assigned judge can review the will to determine whether it is valid and ensure that the complex process is adhered to correctly.
During the probate process, there are specific things that must occur. Among those, the executor of the estate is named. Another thing that must occur is the next of kin must be contacted and given ample time to consider any objections to the will left by the deceased.
During the probate process, the court will issue a probate decree, along with testamentary letters. Yet, there are certain circumstances where, after the decree has been issued, specific parties may decide they want to seek a motion to vacate the probate decree.
What Does Vacating a Probate Decree Mean?
While vacating a decree is rare, it is still allowed under New York State probate law. There can be circumstances that arise after the probate decree was issued or other reasons that occur during the probate process.
To illustrate, let’s assume you were listed as a beneficiary on your uncle’s last will and testament. During the probate process, you were not notified by the executor that you were named in the will. You later discover from another relative that you were named in the will after the probate decree was issued by the court.
Since you were not properly informed by the executor, you could file a motion to have the probate decree vacated with help from a New York probate attorney. The court would then review the grounds for the motion and, if they agree, then the decree is vacated.
Essentially, once a decree is vacated, it is no longer valid. The probate process is reset, and the process returns to the point before the decree was issued.
Another case where one may wish to file a motion to vacate a probate decree is if they believe the will is not valid. For instance, in the Matter of Estate of Thompson, the New York Surrogate Court received a request from beneficiaries of an earlier named will for a motion to vacate the probate decrees on the most recent will submitted during the probate process.
The parties believed that the earlier will from 2008 was valid and the one written in 2016 was not valid. They further felt the deceased’s 2016 will was written at a time when the now-deceased was suffering from a serious illness and incapable of making genuine decisions. The court did grant the motion to vacate the probate decree.
This allowed the parties time to present further information to challenge the 2016 will’s validity. Upon review by the court, it was discovered that there were a combination of different factors that led the court to conclude there were doubts about the authenticity of the 2016 will.1
Vacating a probate decree in New York is just as complex of a process as probating a will. If you believe you have grounds to file a motion to request a vacating of a decree in New York City, Queens, Manhattan Brooklyn, or Jamaica, NY, please feel free to contact probate attorney Joseph A. Ledwidge, P.C. at 718-276-6656 to schedule a consultation appointment today.
Since 2010, getting a divorce in NY was made easier when New York enacted no-fault divorce laws. A no-fault divorce is where one party can file for divorce if they are no longer happy in the marriage. They are not required to prove grounds for wanting the divorce, just that their marriage has broken down and there is no chance of a reconciliation.
There is no need to prove that one party caused the breakdown in the marriage through adultery, domestic abuse, or other such reasons. If one person is behaving in such a manner, the other party can easily get out of the marriage without having to provide evidence of such treatment in court.
The wait time to get a divorce is faster. In New York, you can file for divorce and obtain it in a matter of months, once you have met the 6-month minimum waiting period demonstrating the marriage cannot be salvaged.
The costs to get a divorce can be less in amicable situations. When both parties want out of the marriage, there is not a lengthy trial over the disposition of marital assets, child custody, and other such issues.
A couples’ reasons for divorce can remain private and do not have to become public knowledge. With no-fault divorces, the only reason one has to give for the divorce is that the marriage has failed and there will be no reconciliation.
Parties can better focus on negotiating and reaching a settlement. To receive a divorce decree, a divorce settlement has to be reached that details how marital assets and the marital home will be divided, as well as child custody and access, and spousal support where applicable. Instead of wasting energy on arguing about who was at fault for the divorce, the couple can better put their energies toward reaching an agreement as soon as possible.
It is better for minor children when their parents were in an unhealthy marriage. Children do not have to feel trapped and on edge when one parent is argumentative toward the other. Rather, once the parents are separated, a no-fault divorce helps create a healthier and stable environment for the children.
Cons of the New York No-Fault Divorce Process
There are a few cons related to the New York no-fault divorce process one should know:
It is easier to get out of a marriage. It is not uncommon for one person to just want to be free from the other, and a no-fault divorce allows them to exit the marriage even when the other party doesn’t want to get divorced.
When one person has behaved poorly, it does not require the other party to inform the court of their behavior. While the court will take into account what is best for minor children, they are not interested in adultery and other such issues any longer. This may leave some people feeling the other party is getting “off-the-hook” too easily.
In contentious situations, the divorce process can be much longer and tedious. If one party refuses to negotiate to reach the divorce settlement and wants to litigate everything in court, it will take longer to finalize the divorce.
While there are a few cons to the no-fault divorce process in New York, the pros far outweigh them. To find out more about getting a divorce in NY, including Queens, Brooklyn, Manhattan, Jamaica, and NYC, contact Joseph A. Ledwidge PC at 718-276-6656 to schedule a consultation today!
An executor of an estate has an important role to
oversee the last will and testament of the deceased person who wrote the will.
Often, the testator, the person who wrote the will, names an executor during
the will and estate
Sometimes, the testator will have asked the person
named as executor if they want to perform the duties and responsibilities this
role requires. Other times, the named executor may have no idea they were given
Regardless of whether executor knew ahead of time or
after the death of the testator, as long as they are able to carry out the
required duties, then they are not easily removed. These duties include, but
may not be limited to:
Inventory All Assets
Maintain the Value of All Assets
Keep Accounting and Other Business Records
Probate the Will in Surrogate Court
Pay All Creditors with a Claim on the
Pay All Income and Estate Taxes
Distribute the Remaining Assets to
In addition, they must provide reports and
documentation as requested by the New York Surrogate Court, which is also called
the New York Probate Court. The executor has to also obtain permission from the
court to perform various duties like liquidating assets to pay debts or
distributing certain assets or money immediately to surviving spouse and minor
Furthermore, beneficiaries may request the executor provide detailed records and share updates about the status of the probate process. The executor has to comply with these requests in a timely manner.
Who Can Be An Executor of an Estate in New York?
To qualify as
an executor, the minimum requirements required by law are:
18 Years of Age or Older
No Felony Convictions
A United States Citizen or Legal Living
Resident of New York
Not Incapacitated or Not Adjudicated
Executors should also be good at math and communications
since they will need to prepare a variety of financial records, reports, and
communicate with the court and the beneficiaries. Sometimes the testator will
name a trust company, financial institution, or law firm as the executor of
their will, which is also acceptable.
Valid Reasons for Removing an Executor of a Will in New York
The New York Surrogate Court has created a Procedure
Act which details the valid reason for removing an executor from a will in
Section 711. These reasons include:
If the executor behaves in such a negative or poor manner where he should no
longer be the executor like filing for bankruptcy.
or Wasting of Estate Assets: The executor is not
managing or maintaining the assets as required.
of a Felony: The executor has been convicted and found
guilty of a felony in the past.
Estate Assets: The executor has been stealing money and
other assets from the estate.
Abuse: The executor has a substance abuse problem that is
affecting their ability to perform their duties.
Mental Ability/Capacity: The executor is not of sound mind or
lacks the mental ability/capacity to carry out their duties.
to the Surrogate Court: The executor is not being honest with
the court in some manner like lying about the current value of the estate’s
to Comply with a Court Order: The executor does not
perform duties ordered by the Court.
Eligible: The executor is not eligible to be an executor of a
will in New York like they have not yet turned 18 years of age.
Contingency Requirement Met:
Once the executor fulfills his duties, which is called a contingency, the
executor must stop being the executor.
Fails to File Change of Address: If
the executor moves and fails to notify the court of their new address, they
could be removed.
Becomes Disqualified: An
executor was initially qualified, but some event has occurred which now makes
them disqualified to continue as the executor like developing a substance abuse
Removes Assets/Property from New
York: The executor is removing assets and property from New
York without the court’s permission or beneficiary waivers.
Unfit to Perform Executor Duties:
There is some issue about the moral standing of the executor which makes them
unfit. The court will determine this reason on a case-by-case basis.
Failure to File
Records/Documentation: The executor is not providing the
required records and documentation to the court and/or beneficiaries in a
Violates the Terms of a Testamentary
Trust: The will included a testamentary trust and the
executor is violating the terms of that trust.
Removing an Executor from Probate Processes Is Not Easy
As you can imagine, the above reasons are in place to make it difficult to easily remove an executor from probate processes and required duties. Many of the reasons are often subjective in nature, which means the court handles them on a case-by-case basis. The court may not agree with the person who requests the removal of the executor.
However, if you have sufficient evidence to support
one or more of the qualifying reasons for removing an executor from probate
processes, then it is possible to get them disqualified. To be successful in
your endeavors, you will want to get help from a qualified New York wills and
estate lawyer to present your evidence to the Surrogate Court.
Reasons Why Beneficiaries Try to Remove an Executor
The reasons why beneficiaries sometimes attempt to
remove an executor from a will do not always align with the legal reasons as
defined in Section 711 of the New York Surrogate Court’s Procedure Act. Some of
the more common ones include:
The executor is not a relative.
The executor is a family member who dislikes me.
The executor is too young.
The executor doesn’t live in New York.
The executor is too old.
The testator made last-minute verbal changes to their will that the executor is refusing to follow.
The executor is my step-mother/step-father.
The executor has problems managing money.
The executor once stole from me, so they will steal from the estate.
The executor is not returning my phone calls or emails.
The executor owed the testator money and never paid it back.
The executor seems untrustworthy.
The executor has no experience managing finances.
I know the deceased person’s intentions, and they wanted me to handle their estate, not the executor.
The executor manipulated the testator to change their will and cut out many of the beneficiaries before they died.
The executor is playing favorites with our brother because we are siblings and ignoring me and my sister.
Even though one might have personal reasons for removing an executor, the
court is not going to remove them as long as they are fulfilling their duties
and there is no supporting evidence to indicate otherwise.
How Do You Change the Executor of a Will?
If the testator is still alive, they simply have to
speak to their wills and estate planning lawyer and have their will updated
with a new executor. Sometimes, the original executor may no longer be fit to
perform the duties and responsibilities required.
Other times, there could be personal issues, where the
testator and named executor are no longer on speaking terms. Depending on when
the will was originally written, the original named executor could have died
before the testator.
Ideally, one should review their will, named executor,
and beneficiaries once every few years to see if any changes or updates are
needed. Keeping a will updated can also help avoid disputes by surviving family
and friends later when the will is probated in court.
Removing an executor
of a will after the testator has died can be more difficult. The person or
persons who want to remove the executor must first be able to prove to the
Surrogate Court in New York that they are not fit to serve as executor based on
one of the allowed grounds as detailed in Section 711 of the New York
Surrogate’s Procedure Act.
However, as long as your reasons for wanting to remove
the executor from the will align with one or more of the ones in Section 711,
then there is a higher probability the court will remove the executor.
Since removing an executor from an estate in New York
can be complex, you do need to get help and assistance from a qualified New
York probate lawyer. If the executor is removed, keep in mind, the court will
decide who will be assigned as the new executor of the estate, not you or the
To find out if you have grounds to remove an executor
from an estate in New York, or to change or update the executor with a review
of your will and estate planning process,
please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!
It’s not hard to see why destination weddings are so
popular. Getting married abroad is romantic and adventurous. It’s a chance to
live out your wedding fantasy—whether it’s getting married like royalty in a
medieval castle or barefoot on a white sand beach.
A destination wedding is a vacation and a wedding rolled
into one, with your most cherished friends and family members present.
There’s a lot more to planning a destination wedding than
booking a venue and making travel arrangements, though. If you plan to tie the
knot in another country, you need to make sure you understand and comply with the
rules and requirements of that country and your own. A family law attorney can help.
Here are some important things to know about getting
The U.S. doesn’t recognize all marriages performed abroad.
Marriage is a declaration of love, but it’s also a
legally binding agreement. Laws vary by country.
In general, marriages that abide by the laws of the
country where you get married are considered legally valid in the U.S.—but not
always. You’ll need to check with the attorney general’s office in the state where
you live to determine whether your marriage abroad will be recognized. The
attorney general’s office will tell you which steps you’ll need to take to make
your marriage valid.
Some countries have a residency requirement.
Some countries require you to establish legal residence for a specific number of days or
months in order to get married there. Let’s look at France as an example.
law requires that you 1) reside in the country for at least 40 days in
order to have a legal marriage ceremony or 2) have family ties in France that
you can prove, such as a parent(s) who lives in the country. In either
case, you must provide documentation, including:
Recently issued birth certificate (must have
been issued less than six months prior to marriage date in the U.S. or less
than three months prior to marriage date in France)
Proof of address (e.g., rental agreement,
Proof of nationality
Proof of divorce/death certificate if previously
Information about witnesses (of a civil marriage ceremony)
Certificat de Coutume from U.S. embassy
To get married in France you must have a civil ceremony
in a town hall (mairie), after
which you can have your own secular or religious ceremony.
If you don’t want to become a resident and don’t have a
parent living in France, you’ll need a special dispensation (exception) to get
married in the country, but these are rarely issued.
Another option is to get married in the U.S. (at your
local city hall, for example), and then have a symbolic ceremony in France with
all the bells and whistles.
There’s more to it than this, but you get the
idea—there’s a lot to figure out when planning a wedding abroad.
Some countries require an affidavit proving you’re eligible to get married.
This document attests that previous legal relationships (e.g.,
marriages) have ended, either through divorce or death. Divorce and death
certificates must be translated into the local language and authenticated.
No agency or organization in the U.S. issues this kind of
document, so you must obtain it at an American embassy or at your regional consulate
office (the diplomatic office for the country where you want to get married).
An embassy or consulate office will not attest to your
marital status, but they will notarize the document with your statement of
eligibility to get married; most countries will accept a notarized document from
an embassy or consulate office.
Some countries require blood tests.
Premarital blood tests check for things like venereal disease,
genetic diseases, and rubella. Some countries, including Mexico and Haiti,
require both partners to get premarital blood tests. It’s possible to be denied
a marriage license if you or your partner test positive for certain diseases,
depending on where you want to get married. Or, you may be required to disclose
the test results to your partner.
Blood tests are also required in a few places in the U.S.,
including Montana, New York, and the District of Columbia.
Laws vary by country for religious ceremonies.
In most countries,
a local official (civil or religious) performs marriage ceremonies. If you plan
to have a religious marriage in another country, you may have to obtain
specific documents to get married there.
For example, in Spain, nonresidents are eligible to be
married in a Catholic church only if they obtain a nihil obstat. It’s basically
a clearance document stating that the bishop of the couple’s home church gives
the okay for the couple to marry at a Catholic church overseas.
You may need parental consent.
The legal age to get married varies by country. As a
general rule, most people under age 18 must have a written statement of consent
signed by a parent(s) before a notary public. Some countries also require that
you get the statement authenticated at a consular office for the country where
you want to get married.
There’s more than meets the eye when planning a
destination wedding. Marriage is a contract of sorts, and each country has
different requirements. If you have your heart set on a wedding abroad, make
sure you understand the rules and requirements for obtaining a marriage license
in the country where you plan to have your wedding. It’s a good idea to have a
plan B (and C) in case the red tape becomes too cumbersome in your first country
Get Legal Help Planning Your Marriage Abroad
Your wedding is too important to leave to chance. The
last thing you want is to discover your marriage isn’t legally valid once you
return from your honeymoon. The experienced family law attorneys at Joseph A. Ledwidge P.C. can
help you understand the legalities of getting married abroad.
We can guide you through the process to ensure your
paperwork is filed accurately and documents are properly translated. Most
importantly, we can give you peace of mind during the already stressful process of planning the perfect destination
us online or by phone at 718-276-6656 to arrange a no-obligation
consultation with an experienced New York family law attorney. We serve clients
throughout the New York metro area including Queens, NY, Jamaica, NY, and Brooklyn, NY.
Listing a beneficiary(s) on retirement and life insurance
accounts is not only smart, but many financial institutions require it. It’s
common to ask: If I’ve named beneficiaries, do I really need to go to the
trouble of creating a will or trust to avoid probate and the possibility of
needing a New York probate attorney?
The answer is: In most cases, yes. Read on to learn why.
Why You Need a Will
Probate is the legal process through which a deceased
person’s estate assets are distributed to beneficiaries and heirs. Designating
a beneficiary(s) on your retirement accounts and life insurance policy can help
you avoid probate since beneficiary designations are legally binding and
supersede your will (if you have one).
Your beneficiaries will only need to provide a death
certificate to the administrator of the IRA/401(k) or insurance policy in order
to have the account/assets transferred.
There’s a lot more to consider than whether assets from
retirement accounts or insurance policies will easily pass to your
beneficiaries without the need for probate after you die.
Who will sign your tax return? Who will pay your bills
and deal with your creditors?
If you’re married, you may think the obvious answer is
your spouse. The reality, though, is that your spouse can’t automatically take
legal steps on behalf of your estate. You need to designate them or someone
else as your executor, and creating a will is the way to do that. Your
executor effectively becomes your estate’s legal representative.
Here are other reasons to create a will and not rely on
beneficiary designations alone:
Financial institutions are not infallible; they
may lose/misplace records listing your beneficiaries.
You may forget to update beneficiaries after
major life changes, such as marriage, divorce, or the birth of a child.
Your attorney loses all power once you die; only
an executor/estate trustee can manage your estate after you die.
What if you and your spouse die at the same time
(in an accident, for example) and your spouse is the beneficiary on your
accounts? A will allows you to list backup beneficiaries.
In short, everyone needs a will. Relying on beneficiary
designations is not enough.
Why You Also Need a Living Trust
A will is an important document for indicating who should
get what when you die, but creating a will doesn’t guarantee your estate won’t
go to probate. In fact, a large percentage of estates go to probate even with a
will. That’s why you need a living trust.
In New York, creating a living trust can help you avoid
probate for virtually any asset you own, including real estate, bank accounts, retirement
accounts, vehicles, household goods, and other assets.
You’ll need to transfer ownership of your property to yourself
as the trustee of the trust and name someone as your successor
trustee after your death; your successor trustee will have the authority to
transfer your assets to beneficiaries named in your trust without the need for
probate court proceedings. An estate attorney can help you create a living trust.
What if I Don’t Want to Create a Will or Trust?
If you don’t create a will or trust, there are still ways
to avoid probate for most of your assets. Assets that don’t need to go through
Retirement accounts—for example, IRAs and
401(k)s—for which a beneficiary was named
Life insurance proceeds
Funds in payable-on-death (POD) bank accounts
U.S. savings bonds with a payable-on-death
Pension plan distributions
Wages/salaries/commissions owed to the deceased
Vehicles and household goods that are passed on
to immediate family members under state law
Property held in joint tenancy with right of
Real estate held in tenancy by the entirety—a
form of joint ownership allowed only for married couples in New York
Property held in a living trust
Also, New York offers simplified probate proceedings for
“small estates.” If property (excluding real estate and funds that must be set
aside for surviving family members) has a gross value of $30,000 or less, you
can use the simplified small estate process in New York.
Even if you have significant assets, you may still be
able to use the simplified process. For example, suppose an estate consists of
a $500,000 house that’s jointly owned with right of survivorship, a $100,000
bank account with a named payable-on-death beneficiary, a $200,000 IRA, and a
vehicle owned solely by the deceased that’s worth $15,000. The only asset
subject to probate, in this case, is the
vehicle; theoretically, then, this estate could use the simplified probate process.
Why Naming Beneficiaries Is Not Enough
Going back to the original question about whether
beneficiary designations are enough for retirement and life insurance accounts …
if you’ve designated beneficiaries for these accounts, the assets can be
transferred to them without a will or trust.
This doesn’t resolve the issue of not having an executor
to sign tax returns and deal with creditors and other issues. If you don’t have
a will or trust, the probate court will have to appoint an administrator for
your estate. In the state of New York, the law gives spouses priority. You may
not want your spouse to act as your executor after you die, or your spouse may
not want that role—this is an important consideration.
It’s also important to consider who your beneficiaries
are. If your beneficiaries are very young, for example, you might want account proceeds to be held in a trust until they’re
older and mature enough to handle an inheritance, especially a large one. When
you create a trust, you designate a capable trustee to invest and distribute
the assets in the best interests of your beneficiaries.
The bottom line: The best way to ensure the smooth
transition of assets after you die is to create a will and revocable
(changeable) living trust.
Get Expert Help with Estate Planning and Probate Administration
Navigating trusts and estates law and understanding probate requirements is
complicated. We can help.
A. Ledwidge PC is an expert New York probate attorney representing executors, fiduciaries,
heirs, beneficiaries, and other interested parties. He and his associate
counsel have 32 years of combined experience and can help you avoid probate
through skilled use of trusts and other means.
Call us for a no-obligation consultation today at (718)
276-6656. We serve clients throughout the state, including Jamaica, NY, Queens, NY, and Brooklyn, NY.
You might wonder how an executor gains the legal authority in New York to take direct charge of the finances and property of a person who has died. It is actually quite simple. The legal authority to start managing an estate comes when a probate court issues letters testamentary. Whether you are preparing to become an executor yourself or are just a beneficiary, it is important to know what part letters testamentary play in probate matters.
As Bankrate explains, after an individual has passed away, a probate court will determine the validity of the decedent’s last will and testament. Assuming that the decedent had named a person in the will to take on the duties of the executor, the court will authorize that person to act as the executor if the court rules that the will can go into effect. This authorization occurs when the court issues letters testamentary.
Letters testamentary allow a person to perform all the necessary duties of an executor. The executor is allowed to open a bank account in the estate’s name and gather the money of the estate into the account for the purposes of closing out the various matters of the estate. These can include paying off bills and taxes the decedent had still owed before passing away. Additionally, the executor is empowered to take inventory of the assets of the estate, file the final tax return for the estate, and distribute the assets of the estate.
In the event that someone dies without a will, a court will not authorize letters testamentary. Since the decedent did not make a will and did not name an executor for the estate, the decedent’s estate is deemed intestate. It will be up to the court to appoint someone to be the executor. To authorize the executor to carry out the duties of the position, the court will issue letters of administration.
Keep in mind that this article is written to educate New York residents on probate topics. Since issues with probate take many forms, this article should not be read as legal advice.
It is not uncommon for a person in their 20s or 30s to think that a will or a trust is only something that people in their parents’ or even their grandparents’ generations need. The truth, however, is far from this. While most people die later in life, accidents can happen at any time and a person may become disabled at a young age and unable to take care of their obligations or affairs even if they are still alive. An estate plan is simply smart insurance in a way.
NerdWallet notes that as more millennials become parents, the need for them to engage in estate planning grows. A clearly identified plan including named guardians for what will happen to their children should they die is something every parent should have. This is not a decision to be taken lightly. Simply saying that a grandparent will raise a child is not enough. A plan should also identify financial support for the to-be guardian.
ThinkAdvisor encourages millennials to give consideration to what might happen if they were to be involved in a tragic accident. Who would be able to make medical decisions on their behalf if they could not do it for themselves? This is another thing that can be identified in a good estate plan.
Documenting online identity and login information should also be done so that the appropriate person or persons would have access to these accounts in the event of a death. Beneficiaries for work-sponsored 401K plans and life insurance policies should also be updated and reviewed regularly.
When it comes to setting up an estate plan, health issues may play a role in various ways. For example, someone may be prompted to set up an estate plan specifically because of health challenges they are going through, which have made them realize that it is important to be prepared for unexpected problems that may be life-threatening. Moreover, other people may want to prepare for health issues that leave them unable to take care of themselves.
There are a number of options for those who want to ensure that they are cared for in the event they become incapacitated, and many people have benefit from setting up a health care proxy, also known as a durable power of attorney for healthcare. By doing so, you can appoint someone who you trust to make key medical decisions for you in the event that you are no longer able to make these decisions yourself. There may be other ways you can prepare for these potential challenges as well, such as making revisions to your will.
Ultimately, health issues can be incredibly overwhelming and disruptive, so it is imperative to be prepared. When it comes to estate planning, you should not only be taking into consideration your finances and those you love, but other important aspects of your life as well, such as your health. By preparing yourself for issues that could arise in the future, you may be able to rest easier at night knowing that you are ready for unexpected problems.
The possibility of a nasty court battle over a last will and testament motivates some people to stick a “no contest” clause into their wills. If anyone is going to step forward to contest the will, the no contest clause will specify that the contesting individual will be cut out of the will’s provisions. While this seems like a good way to dissuade beneficiaries from going to court over a will, New York law might not uphold such clauses in all cases.
No contest clauses might seem unfair at first glance since they present an all or nothing proposition, and if a person finds fault with the will, that person could lose out completely on the benefits of the will by contesting it. FindLaw states that for these reasons, many states will not enforce such clauses and will allow people with standing to contest wills if valid reasons exist to do so.
New York law, however, is quite specific, stating that no contest clauses are valid in the state. A testor does not need to provide a beneficiary with any alternative benefits if the beneficiary contests the will. Also, it does not matter if a beneficiary has a probable cause to contest the will. The no contest clause can still take effect and disinherit the person for contesting. However, this is not true for all cases.
State law does provide specific exceptions that bar a person from being disinherited. For instance, the contesting individual may only be claiming that the will is not being offered in the correct jurisdiction and is not challenging the provisions of the will. A challenger may also not be competent under the law to make the challenge in the first place and thus cannot be held responsible. State law provides this exception to infants as well.
People may also suspect that there is something wrong with the will itself, perhaps believing that the will is not even legitimate. State law permits residents to challenge wills if they are forgeries. A will might also have been superseded by a later will but the earlier will was wrongly put into effect, which can also form the basis for a legitimate challenge.
Additionally, a no contest clause cannot be used to coerce people to not engage in legitimate probate actions. A beneficiary may have documents or information that are relevant to a probate proceeding but the testor of the will might not want to come to light. Regardless of the testor’s wishes, a person cannot be disinherited for bringing these documents forward. A person also cannot be disinherited for not participating in a petition to put a document through probate as a last will.