Estate Planning FAQs

What Is Estate Planning & Why Do I Need to Plan?

Estate planning allows you to arrange for the transfer of your assets after death and to decide who will benefit from your estate and to what extent. It also allows for efficient tax planning to make sure that your beneficiaries are not stuck with an enormous tax liability during and after the transfer of assets.


Do I Need A Will?

There is currently no law that requires individuals to have a will. Since there is not yet a clinically proven way to avoid death, however, it’s usually a good idea to have one so you can have control over how your assets will be distributed after you pass and who will be in charge of distributing them; making sure the right person is chosen for this task is pivotal to ensure a smooth distribution process . If you have minor children, a will allows you to plan for their care in the tragic event that they survive you while they are still minors. A will is also not permanent and allows for modifications to be made while you’re alive.

What Is Probate?

Probate is the process of proving a will valid, collecting and identifying the deceased person’s assets, and distributing them to the heirs named in their will. Once a will’s validity is proven, the court will then oversee as the executor named in the will pays off any debts and/or taxes owed by the decedent, and distributes the remaining assets to the beneficiaries named in the will.

How Long Does Probate Usually Take in NY?

Depending on its complexity and whether or not the will is contested, the probate process can last anywhere from several months to several years. On average though, a typical estate can take 8-12 months to be probated.

How Can I Avoid Probate?

The most common way to bypass the expensive and time consuming probate process is by placing you assets into an irrevocable living trust. Since the assets are then no longer in your name but in that of the trust, they will not need to be probated. After you pass away, the assets automatically become the property of the beneficiaries. Read more about how a living trust works here.

Is Probate Necessary If I Have A Trust?

If trust-based estate planning is executed correctly, probate can be entirely avoided. However, it’s not uncommon for individuals with living trusts to die owning property that they did not place into the trust. Unless said property is of extremely low value, usually under $30,000 in NY, probate can still be avoided. Otherwise, a pour-over will allow for any assets outside of a trust to be placed into said trust upon the grantor’s (creator of the trust) death.

What Is A Living Will?

A living will is a set of medical directives created by an individual for use by medical professionals to determine the extent of treatment that the individual would like should they become incapacitated or be in an end-stage medical condition where they are not able to communicate their own decisions.

Should A Notary Notarize My Will?

Wills are very important probate documents, which are used to distribute a person’s assets in a matter that best suits their preferences. It is recommended that novice notaries do not notarize wills because they may not have direct experience within the practice. Efficiency is guaranteed when a New York Estate Attorney drafts the will with specific instructions for the notary, rather than the notary notarizing the will themselves. This minimizes potential problems with a contested will and decreases the chances of the will being thrown out in probate court due to improper execution procedures on behalf of the one who drafted the will. If the notary lacks experience in the field and drafts the will improperly it is quite likely that the will is going to be declared null after it is notarized, which means that it cannot be utilized. Therefore, it is not recommended that a notary notarize your will. Rather, it would be a much better option to have an experienced estate attorney draft the will on your behalf.

What is a Self-Proving Will?

In New York a will does not have to be notarized in order to be accepted for probate in court. However, it is still encouraged that individuals draft a self-proving will in the attempt to speed up the probate process, which can take quite a long time depending upon the case. In a self-proving will the testator and the witnesses swear upon an affidavit in the presence of a notary. Throughout this process the testator must be completely aware of the meaning of the documentation being signed. It is imperative that the witness is present to ensure that the testator signs the will in front of them. The court will accept this type of will without having to directly contact the witnesses who were present when the testator signed the will. This specific action is responsible for decreasing the amount of time it would take to have the will go through the New York probate process.

What Are the Requirements for Signing a Will in New York?

In order to sign a will in New York you must sign your will in front of two witnesses. They must be present to witness that you are the one who is signing the will. Additionally, you must directly state to the witnesses that the document you are signing is your will and you are aware of what is stated within the will.Lastly, your witnesses are obligated to sign your will in your presence, so you can directly witness them signing.It is encouraged that you sign at the very end of the will. Based on New York law, you will be given up to 30 days to ensure that your witnesses are present for your signing of the will, or you could simplify the process by having your witnesses sign at the same time that you sign. Remember to make sure that your witnesses write their addresses on the will and everything is done according to New York state law.

How to Create a Self-Proving Affidavit?

There are a few steps involved in creating a self-proving affidavit. The first step to this process includes directly writing your will in order to ensure that all of your wishes and preferences are clearly stated. This guarantees that your assets will be allocated in the exact manner of your preference. In order to do this you can work with a licenced New York Estate Attorney for the best outcomes. Be sure to double check that you have the right self-proving affidavit form and you complete it in its entirety. After you have filled out all of the forms and created a will that best expresses your wishes, the next step would be to attend a notary public with your designated witnesses. It is recommended that you store the affidavit alongside your will to ensure that you have all of the information you need in one place and is easily accessible in the case that you need to access it. An affidavit is a written statement or oath which is confirmed and further utilized as evidence within the court in relation to your case.

What Is A Power of Attorney?

A Power of Attorney is a written document signed by a competent individual that specifies and authorizes another individual to make decisions on a range of matters on their behalf should they become incapacitated.

What Is A Springing Power of Attorney?

A springing Power of Attorney becomes effective if and when the person who signes the document becomes mentally incompetent, and in some case, physically disabled.

What Is Intestacy?

Intestacy refers to having died without a will. If you die without a will, your property will be distributed by the probate court according to the intestate succession laws active in your state.

What Are Beneficiary Designations?

A designated beneficiary is named on a life insurance policy or other financial account as the recipient of the assets in the event of the original account holder’s death. Most financial institutions offer a “Payable On Death” form which allows you to list a beneficiary for each of your accounts. Financial accounts with designated beneficiaries typically do not have to be probated.

What Information Should I Have On-Hand Before I Contact An Attorney to Draft A Will?

Before you meet with an estate planning attorney, you should have the following information.

  1. How you’d like for the assets to be distributed
  2. Name of the executor and alternate executor
  3. Name of guardians for your minor children
  4. A list of your assets and their estimated value
  5. Your existing estate planning documents

What Is A Trust?

Simply put, a trust is a legal arrangement in which a person or a legal entity manages money or property for the benefit of a designated beneficiary.

What Is A Special Needs Trust?

A Special Needs Trust (SNT) is a trust created for a disabled person with the goal of preserving their eligibility for public benefits/assistance.

Are There Limitations As to What The Funds In An SNT Can Be Spent On?

Yes. Because the sole purpose of a Special Needs Trust is to preserve a disabled person’s eligibility for public assistance, the funds in the trust cannot be spent on any potentially disqualifying expenses, often including food or shelter.