Naming Beneficiaries on Life Insurance While Having a Trust in New York

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

Business photo showcasing money that is being held by the trustees for the beneficiaries

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?

Senior couple planning their investments with financial advisor

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! 

Does New York State Probate Law Allow Vacating of a Probate Decree?

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.

Last Will and testament document with pen

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.

Judge Holding Documents

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. 

Source:

  1. https://www.law.com/newyorklawjournal/almID/1535443189NY4297D201/?slreturn=20200117142820

What Are the Pros and Cons of No-Fault Divorce in New York?

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.

Young couple is drifting apart after breakup

Pros of the New York No-Fault Divorce Process

There are several advantages provided by the New York no-fault divorce process.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

Kid daughter feeling upset while parents fighting at background

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:

  1. 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.
  2. 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.
  3. 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!

How to Remove an Executor: Removing an Executor of an Estate in New York

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 planning process.

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 this task.

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 Estate
  • Pay All Income and Estate Taxes
  • Distribute the Remaining Assets to Beneficiaries

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 children.

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.

Scales, clipboard, and gavel in front of man and woman

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:

  1. Executor Misconduct: If the executor behaves in such a negative or poor manner where he should no longer be the executor like filing for bankruptcy.
  2. Mismanagement or Wasting of Estate Assets: The executor is not managing or maintaining the assets as required.
  3. Convicted of a Felony: The executor has been convicted and found guilty of a felony in the past.
  4. Stealing Estate Assets: The executor has been stealing money and other assets from the estate.
  5. Substance Abuse: The executor has a substance abuse problem that is affecting their ability to perform their duties.
  6. Lacks Mental Ability/Capacity: The executor is not of sound mind or lacks the mental ability/capacity to carry out their duties.
  7. Misleads/Lying 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 assets.
  8. Failure to Comply with a Court Order: The executor does not perform duties ordered by the Court.
  9. Not 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.
  10. Contingency Requirement Met: Once the executor fulfills his duties, which is called a contingency, the executor must stop being the executor.
  11. Fails to File Change of Address: If the executor moves and fails to notify the court of their new address, they could be removed.
  12. 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 problem.
  13. Removes Assets/Property from New York: The executor is removing assets and property from New York without the court’s permission or beneficiary waivers.
  14. 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.
  15. Failure to File Records/Documentation: The executor is not providing the required records and documentation to the court and/or beneficiaries in a timely manner.
  16. 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.

Man and woman in front of judge

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.
Two men arguing with two women

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 other beneficiaries.

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!

Sources:

  1. https://codes.findlaw.com/ny/surrogates-court-procedure-act/scp-sect-711.html

Planning a Destination Wedding? How to Make Sure Your Marriage Is Legal in the U.S.

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.

Wedding couple holding hands on a beach.

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 married overseas.

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.

French 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:

  • Passport
  • 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, utility bill)
  • Proof of nationality
  • Proof of divorce/death certificate if previously married
  • 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.

Wedded couple in front of large mansion.

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. 

Bride and groom kneeling in front of priest at church.

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 of choice.

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 wedding.

Contact 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.

Are Retirement Accounts and Life Insurance Part of Probate, and Do I Need a Will or Trust?

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.

Two men negotiating over a will

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.

Last will and testament papers with pen and glasses

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 probate include:

  • 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 designation
  • Pension plan distributions
  • Wages/salaries/commissions owed to the deceased person
  • Vehicles and household goods that are passed on to immediate family members under state law
  • Property held in joint tenancy with right of survivorship
  • 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.

Revocable Trust typed on paper

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.

Joseph 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.

What should I know about letters testamentary?

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.

Why millennials need estate planning

 

 

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.

 

 

 

Estate planning and health issues

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.

What New York law says about no contest clauses

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.