WILLS and TRUSTS
Our attorneys assist clients (Testators) in the preparation and execution of their Last Will and Testament.
The drafting of a Will is a serious matter, and the Will is designed to accomplish many objectives. The most obvious is the planned distribution of one´s estate, but there are many other objectives in drafting a Will. Estate Tax consequences are a major consideration, as is the care of children or other relative or beneficiary who may be in need of a Guardian or Trustee.
When drafting a Will, the testator must consider who the estate executor(s) could be. The simple requirement is that the executor must be either a U.S. national or a U.S. resident (Greencard Holder), residing in NewYork State. The executor is charged with the responsibility to probate the Will and administer the estate. In many estates there are trusts established; these trusts could be living trusts or testamentary trusts, but in all cases a Trustee will be required. The Testator or grantor of the trust must select Trustees from either: qualified family members, close friends or professional fiduciaries. The choice is a personal choice, and may be dictated by the financial complexities anticipated for the Testator´s estate.
When considering the appointment of an executor or other fiduciary, you must always consider the appointment of successor fiduciaries. While generally not efficient, depending on the complexity of the potential estate it may also be appropriate to select multiple fiduciaries (co-executors or co-trustees). The use of co-fiduciaries should be carefully discussed with your attorney as there can be potential conflict between or among the fiduciaries. The potential for conflict requires the testator to carefully consider the fiduciaries which are needed.
When considering Estate Tax issues, the use of Trusts must be considered, and Trusts may have other objectives other than only being used to save estate taxes. When considering estate taxes both New York and Federal estate taxes must be considered.
HEALTH CARE PROXIES
New York State is a Health Care Proxy State. Many people refer to this instrument as a Living Will, but the Health Care Proxy is a more powerful instrument. Its chief advantage is that it appoints a Health Care Agent to make your health care decisions.
POWERS OF ATTORNEY
Powers of attorney come in various varieties, including Springing powers, General powers, Durable powers, Limited powers to name a few. Powers of Attorney are powerful and dangerous instruments, and they should be used with great caution. The person appointed under a Power of Attorney is known as an ‘Attorney-in-fact’. The attorney-in-fact has great power as well as great responsibility. The use and prudence of drafting Powers of Attorney should be carefully discussed with your attorney.
The most commonly used Power of Attorney is the New York State ‘Statutory Power of Attorney’. While this form is set forth in the New York General Obligations Law, and it should be honored through the state, occasionally there could be difficulty in persuading an institution to honor a Power of Attorney. When the Statutory form of Power of Attorney is not desired, special Powers of Attorney can be drafted. The type of Power of Attorney accepted by a particular institution should be determined in advance of its use.