What will happen if you don’t have an estate plan?

An estate plan is key to guaranteeing that all of your best interests are met when the time comes. The very first step to planning for your future pertains to making the decision to create an estate plan. This plan typically includes drafting a will, health care proxy, power of attorney, and a letter of intent. In order to ensure that your wishes and desires are followed through according to your specified plan, it is greatly recommended that you consider drafting a will. Without a will in place the court will make a decision that does not align with your preferences and your family will face the detrimental consequences of your intestate death. When completing the health care proxy and power of attorney forms you are encouraged to select an individual you trust the most in making your health and estate decisions. The health care proxy will have the ability to make medical decisions on your behalf to ensure that you are receiving the best treatment possible for your condition. The power of attorney will have the ability to make financial decisions on your behalf based upon the actions that would serve in your best interest, as this individual is the one responsible for paying for your healthcare. These documents must be properly drafted, completed, and notarized according to the outlined standards of NY State law, meaning there is a necessity for the presence of two witnesses and an attorney. It may seem quite complex and overwhelming when you are trying to decide how to appoint a specified agent for your power of attorney or a selected individual as your healthcare proxy. The best method to ensure that all of your documents are completed according to your wishes and are carried out based on NY State law is to hire an Estate Planning Attorney to draft all of the documentation. Hiring an Estate Planning Attorney guarantees that you will not die intestate, while also ensuring that all of the documents you need have been properly drafted and completed.

Negative Consequences of Not Having an Estate Plan

What happens when you die without a will?

In the case that an individual passes away without a will set in place, the state will be the one responsible for deciding on the manner of distribution of your assets. This is not recommended, as the state is most likely not going to take your wishes and best interest into consideration upon making the final decision. Dying without a will means that you have passed away intestate. In this situation, the intestacy laws of the state you inhabit will make the decision regarding how your assets will be distributed upon your death. These assets pertain to estates, bank accounts, etc. Typically, only assets that would have originally passed through the will are directly affected by intestate succession laws. A spouse that survives the decedent will inherit $50,000 of the intestate property, and any surviving children inherit the remaining balance.  If you pass away without any living family remaining, then the state will uphold your property, however this occurs extremely rarely. Dying intestate results in a delay in the distribution of your assets, thus your beneficiaries must wait an extended period of time to receive their portion of assets. Most importantly, dying intestate means that you have no say in terms of guardianship. This means that you do not get to choose who will care for your minor children, which can be a parent’s worst nightmare. Dying without a will has numerous negative impacts on your family, most of which are not worth the money you save by choosing not to create a will. Therefore, you should make the decision to hire an Estate Planning Attorney today to best prepare you for your future.

Does everyone have an estate when they die?

A common misconception is the assumption that an individual does not need to create an estate plan if they do not own a house. This assumption is false because an estate does not only refer to your home. In reality, an estate is composed of all the financial assets you own upon your death. These assets may include your home, bank accounts, investments, real estate property, retirement savings, etc. In other words, everyone does have an estate when they pass away, even if they do not own a house. In the case that there is no will in place, the probate court will appoint an administrator responsible for handing your estate. The estate is composed of aspects that must pass through the probate process and aspects that can avoid going through probate. Assets that do not have to go through the probate process include life insurance policies and retirement accounts. In some cases, accounts that are titled in a specific manner can go directly to the joint owner without having to embark upon the probate process. If your assets were placed within a trust you may also be able to avoid the probate process because the appointed trustee plays the role responsible for distributing your assets. Most assets that were not included in the trust will unfortunately have to pass through the lengthy probate process.

Why should I create a trust?

There are numerous benefits to creating a trust when creating your estate plan. Creating a trust ensures that all of the assets within the trust will not have to pass through probate upon an individual’s death. The trustee will distribute the assets, so as not to involve the court and participate in the lengthy and extremely expensive probate process. Additionally, creating  trust may minimize your estate taxes, as well as your gift taxes. In creating a trust, you state exactly how and when you want your assets distributed to your beneficiaries. This means that your best interest and wishes will be the driving factor determining the distribution of your assets, instead of the court being responsible for the decision. The trust will reduce the waiting period associated with the distribution of your assets if these assets were to pass through probate. Creating a trust allows you to plan ahead for any event, in the case that you may become incapacitated and no longer able to mange your assets. An Estate Planning Attorney can assist you in the process of selecting the perfect trust for you based on your personal circumstances.

What other documents should be executed as part of my Estate Plan?

Aside from drafting a last will and testament, you should also execute a power of attorney, health care proxy, trust, and a letter of intent. When executing a power of attorney you should select an individual you trust to make the best decisions possible. This individual is the agent you selected, which is granted the ability to make financial decisions on your behalf. This document is especially beneficial in the case of a medical emergency, for while you are working on improving your health, your agent is working on paying your rent, bills, etc. A healthcare power of attorney allows you to select an individual to make medical decisions on your behalf. The selected individual will decide which medical facilities would best benefit you in the case that you become incapacitated. This individual can also participate in the process of selecting doctors and treatment plans in the case that you fall ill. This document is most important when it concerns making decisions about life support, resuscitation, and end of life plans. A living trust positions all of your assets into one legal document for you to use during your lifetime. If you name yourself as a trustee you will be able to manage your trust and make any changes you believe are necessary if your trust is revocable. You will have the ability to distribute your assets to the designated beneficiaries without embarking upon the lengthy probate process.The trust should include your estates, cars, bank accounts, as well as any other assets. Lastly, you should execute a letter of intent  describing what you would like done on your behalf once you have passed. This letter is given to your selected beneficiaries and they are responsible for completing the specified requests made in the document. An esteemed Estate Planning Attorney will guide you through the process of executing all of the documents and guaranteeing that all of your best interests are communicated.

For further Estate Planning inquiries please contact the Law Office of Inna Fershteyn at 718-333-2394 to best prepare for your future in selecting an attorney that works best for your needs.