FAQs

 

Estate Planning | Estate Taxes | Power of Attorney: Parents | Power of Attorney: Self
Selection of a Fiduciary | Fiduciary Duties: Executors and Trustees
Executor Duties: First Steps
| Guardianship/Special Needs Planning
Retirement Benefit Planning | Business Succession Planning
Family Cottage or Residence Planning | Health Care Proxies, Living Wills, DNRs
Long-Term Care Planning

 

 

Estate Planning


At what point should a person have a Will prepared?

 

There is no rule that dictates when anyone should begin the estate planning process, including creation of a Will. It depends on each person’s circumstances.

 

Younger clients usually begin because they want to make sure their children are taken care of if something were to happen to them. This usually includes naming guardians and/or creating trusts under their Wills to manage the children’s inheritance until they become adults. Older clients, however, may seek to minimize estate taxes through their estate planning documents.

Regardless of your stage of life, we are sensitive to the issues surrounding the estate planning process and appreciate the need to engage in the process at your own speed.

 

What happens if I die without a Will?

 

If you die without a Will, state law will decide who inherits your property. In New York, the following rules apply:


If you are unmarried and have no children, your parents will inherit your assets.
If both your parents are no longer alive, your siblings will inherit your assets.

 

If you are married and have no children, your spouse will inherit all of your assets.

 

If you are married and have children, your spouse will receive the first $50,000
of your assets plus one-half of the balance. Your children will share equally
in the remaining one-half.

 

If these are not your desired results, then you need to prepare a Will.

 

 

Estate Taxes

 

I do not want any of my estate going to Uncle Sam. Are there steps I can take now to make sure that my kids will not pay any estate taxes?

 

Keep in mind that if your estate owes federal and/or state estate taxes, the taxes will be paid out of the estate, not out of the pockets of your beneficiaries.

 

With careful planning, you can minimize or eliminate the estate taxes paid to the federal and state government. We will work with you to assess your current situation, your wishes, and the potential impact of estate taxes on your goals. By carefully considering your assets and personal circumstances, we should be able to propose options that address the reduction or elimination of potential estate taxes.

 

Power of Attorney: Parents

 

My parents are getting older and are starting to make mistakes when paying their bills. What I can do to help?

 

You are right to be concerned. You first need to determine if your parents have signed durable powers of attorney. If they have, then they have already planned for this eventuality and have selected someone to manage their affairs. If they haven’t, you should consult a lawyer to determine their options. If they do nothing and become mentally incapacitated, the only recourse may be to have an expensive and time-consuming court proceeding to appoint a guardian of their property.

 

Power of Attorney: Self

 

My husband and I are getting older and we want to be sure that our financial affairs will be attended to if we become incapacitated. Can you help?

 

Yes. We can suggest a number of planning options for you and your husband to consider that will give you the security of knowing that someone you trust will be able to manage your affairs at the appropriate time.

 

Selection of a Fiduciary

 

We have young children. How do we select someone to care for them and manage their inheritance should we both die?

 

You are wise to think about this now. Careful planning to protect your children is an important process that will enable you to select those who will ensure that your children will be emotionally and financially protected if you are not with them. This is what we do. We will counsel you regarding the selection of your children’s guardians, the executor of your estate, and the trustees to manage your assets for the benefit of your children.

 

Fiduciary Duties: Executors and Trustees

 

My parents have asked me to be the executor of their estates and a trustee of some trust they are creating. What am I getting myself into?

 

The only answer we can give here is, it depends. Some Wills are very simple and easy to administer and others are not. The same goes for trusts. Some duties of an executor and trustee are set out in the Will or trust agreement while others are contained in state laws. As a general rule, executors and trustees are only caretakers of assets that are in transition from the former owner to the new owner. Sometimes the period of transition is only a few months, other times it is many years. We would need to see the specific documents before we can more fully explain your responsibilities.

 

Executor Duties: First Steps

 

My father just passed away and I am the executor of the estate. What do I do next?

 

The first step is to take your time, proceed with the funeral, and begin the grieving process. Nothing needs to be done immediately unless your mother has a need to obtain money to pay her bills—other than the funeral bill. That one can wait.

 

In a week or so you will need to contact an attorney who will explain your responsibilities and guide you through the process. It is a good idea to contact your father’s attorney (the one who prepared his Will) to advise him or her of your father’s death. You are not required to employ that attorney, but he or she may have special knowledge concerning your father’s wishes.

Estate settlement and administration can be a stressful and lengthy process. Our office provides all the administrative services necessary to settle an estate while remaining sensitive to the needs of the family and paying scrupulous attention to the legal, tax, and accounting details.

 

Guardianship/Special Needs Planning

 

I have a grandchild with special needs. Can I leave him a gift under my Last Will
and Testament?

 

There are many planning options for you to consider. You may need to leave the gift in a Supplemental Needs Trust (SNT). Assets in an SNT will not adversely affect your grandchild’s receipt of benefits from certain government programs. Our attorneys will work with you to assess whether or not an SNT is the best option for you and for your grandchild’s future financial well being.

 

Retirement Benefit Planning

 

I do not remember if I completed a beneficiary designation form when I rolled over my 401(k) from my employer to my IRA. A friend of mine told me that if I forget to name a beneficiary, the assets will still go to my family. Is this accurate?

 

If you do not name a beneficiary of your IRA, it will be paid to your estate upon your death. Therefore, if you have a Will, your beneficiaries will receive the IRA proceeds. If you do not have a Will, your closest living relatives will receive the IRA as determined by state law.

You should contact the custodian of your retirement account and request a copy of your beneficiary designations. Then consult with your estate planning attorney to discuss whether these designations are proper in light of your overall estate plan. The failure to name a beneficiary or naming inappropriate beneficiaries can often result in unintended tax consequences for your family or other beneficiaries.

 

Business Succession Planning

 

I’d like to transfer my business to my son and daughter. How do I do that with minimal disruption to my family and to the business itself?

 

Very carefully. Planning for the disposition of a business is far more complicated than planning for the distribution of a bank account or a stock portfolio. Our firm will help guide you through a successful transition designed to accomplish the objectives you have set for yourself, your family, and your business. We have found that the process works best if we work closely with you and your key advisors, such as your accountant, to ensure that all facets of the process have been addressed.

 

Family Cottage or Residence Planning

 

I own a cottage on Keuka Lake and would like my grandchildren to be able to
enjoy this property. However, I am not sure that my kids will be able to afford it.
The property taxes keep increasing.

 

You may wish to create an arrangement during your lifetime that addresses how the property will be owned and managed after your death. A properly structured arrangement will help you to keep the property in the family while also saving estate taxes. Our attorneys will help you develop a plan that will accomplish your goal in the most tax-efficient manner.

 

Health Care Proxies, Living Wills, DNRs

 

What is the difference between a Health Care Proxy and a Living Will?

 

A Health Care Proxy gives the person named by you the legal authority to make medical decisions on your behalf only if you are unable to make those decisions yourself. New York law permits you to name a primary Health Care Agent and a successor agent. You may not name people to act jointly because they may not agree.

 

A Living Will is statement of your wishes regarding your care should you become critically ill. For example, it might state that you do not want tube feedings. Unlike a Health Care Proxy, a Living Will is not legally enforceable in New York. It provides guidance to your Health Care Agent, however, your Agent is not legally required to follow the directions in your Living Will.

 

Who can issue a Do Not Resuscitate Order (DNR)?

 

A DNR must be issued by a physician. There are two kinds of DNRs—institutional and non-hospital. The institutional DNR applies to individuals in hospitals and nursing homes. The non-hospital DNR applies to individuals needing emergency services personnel (e.g., ambulance technicians). Both kinds prevent the use of cardiac pulmonary resuscitation (CPR) and must be reviewed periodically by a physician.

 

Long-Term Care Planning

 

The rules surrounding nursing home care and government benefits are
complicated and always changing. How can I better understand these rules
and also stay informed?

 

There are many beliefs and motivations surrounding planning for a long-term nursing home stay. Our attorneys can present various alternatives that are appropriate to your situation and also keep you informed regarding recent developments at your request. Gaining a general understanding of the rules may help you to decide whether a long-term care plan is right for you.