What is an Estate?
An estate is the total property, real and personal, owned by an individual at his death.
What does it mean to probate a will?
Probate is a legal process of establishing the validity of a decedent’s will and the distribution of his or her estate according to his or her last will and testament. The terms of the will are approved by a Surrogate (judge), and the decedent’s assets, property and possessions are distributed to his or her beneficiaries after any outstanding debts are paid. Generally, a client’s will and much of the information provided to the court throughout the probate process is available to the public. This decreases the level of privacy of the estate. If you don’t want your assets to be made a public record, a trust can help protect your privacy. At the grantor’s death, assets in a valid trust are not subject to probate. The terms of the trust agreement govern the disposition of the trust assets. For example, a revocable trust is generally administered without any public proceeding such as probate or estate administration. This allows for the details of the trust administration and the value of the trust’s assets to be kept private.
What is the difference between administration and probate of the estate?
Estate probate and administration are the legal processes by which the court appoints a representative to collect a decedent’s property, pay the decedent’s debts and estate expenses and, finally, distribute the remaining property to appropriate individuals. New York calls these processes probate if the decedent died with a will (testate) and administration if the decedent died without a will (intestate).
How long does probate take?
The time that it takes to complete the probate process can vary significantly. However, it is not uncommon for probate to become lengthy and costly, especially if there is a contesting party or many assets in an estate to distribute to beneficiaries.
What is the New York estate tax and who must pay it?
New York, like several other states, has a state estate tax. This means that when someone dies a resident of New York, or with property physically located in New York, his or her estate may be subject to tax not only by the federal government, but also by New York. The estate of a New York resident must file a New York State estate tax return if the amount of the resident’s federal gross estate (value of all real and personal property), plus the amount of any includible gifts, exceeds the basic exclusion amount applicable at the date of death.
Who qualifies for Medicaid after 65?
Medicaid is a government program administered jointly by Federal, state, and local authorities that provides medical and other benefits for qualifying individuals. Those suffering from a disability, injury, or illness that is permanent or chronic may be awarded substantial, lifelong help. Eligibility for Medicaid in New York is determined based upon income, age, health and assets. Income is the amount you receive each month (or less regularly) from Social Security, pensions, work, gifts and distributions from IRAs or annuities.As of 2018 the income limits are $842/month if you are living alone and $1,233/month for couples. Proper asset and estate planning, as well as knowledge of the various applicable spend down rules, can greatly increase your chances of becoming eligible for Medicaid. Our Russian speaking estate attorneys can discuss various legal tools such as Medicaid Trusts and Pooled Income Trusts, and can protect your current and future assets and also enable you to meet the stringent financial requirements for Medicaid.
What does a corporate lawyer do?
Corporate lawyers ensure the legality of commercial transactions. A corporate lawyer’s primary responsibility is to ensure that their clients’ business transactions are in compliance with the law. A corporate lawyer provides valuable advice, helps structure your business and assists with such legal matters as formation, operation and governance of a business. It is important that your attorney has a strong familiarity with the laws of the jurisdiction in which your business operates. This is because corporate attorneys must have a thorough understanding of the laws, regulations, current trends and regulatory developments in order to facilitate business transactions and help clients work within legal boundaries. A corporate attorney can also ensure that her client does not get defrauded or become involved in transactions with parties that engage in deceptive, illegal or unfair practices.
What does an executor do?
A very important issue a testator must consider when creating a Will is who the testator wants and trusts to give effect to his or her wishes as articulated in the Will. These individuals are called fiduciaries. A key fiduciary is an executor for the estate, in other states they refer to as Personal Representatives. An executor must be appointed by the surrogate’s court. An executor gathers the decedent’s probate assets, pays the decedent’s creditors, debts and expenses, sells property (if necessary) and makes the distributions to the beneficiaries under the will (if decedent dies with a valid Will).When selecting an executor a testator should choose someone who is honest, trustworthy, conscientious, capable of remaining impartial, available and willing to perform various mandatory duties, and able to read and write English.
What is a will?
Every well-crafted estate plan should include a Will. A Will is a written declaration of what a person wants done with their property upon death. Wills are often used as the primary method for transferring assets at death. A person who creates a Will is called a testator. New York requires that testators comply with strict formalities to create a valid Will. A Will controls the assets that are owned by the decedent at death and that do not pass by survivorship or beneficiary designation. Assets that pass under the will are called probate assets. Wills only control the distribution of probate assets. A typical Will may include provisions that nominate fiduciaries, including executors, guardians, trustees, and custodians; make specific bequests (gifts), including bequests of real property and tangible personal property, and make residuary bequests of the balance of the estate.
What if a decedent does not leave a will?
If a decedent does NOT leave a Will he/she is said to have died “intestate.” Because the deceased person left no direction on how to dispose of their assets, New York law provides for how those assets will be distributed among the surviving members of the decedent’s family. You should speak with an estate attorney to discuss if distribution of your assets according to New York law serves your goals and interests. Succession laws may frustrate your intent and leave loved ones with no recourse so it is important to make sure that you understand what will happen to your assets if you die without a Will indicating your wishes.
What is a trust?
It is a legal arrangement in which a person’s property or funds are entrusted to a third party to handle that property or the funds on behalf of a beneficiary. The person who creates the trust is known as the “grantor.” And the “trustee” is the individual or institution that is responsible for managing the property owned by a trust (assets) for the benefit of the beneficiaries. A valid trust does not pass through probate. There are essentially two basic types of trusts: a living trust and a testamentary trust.
What is the Living Trust?
A living trust is a trust that a grantor creates during his/her lifetime can be either revocable or irrevocable. A “living trust” or “Inter vivos” is legally in existence during your lifetime, has a trustee who currently serves, and owns property which you have transferred to it during your lifetime. While the Grantor is living, the trustee (who may also be the Grantor) is generally responsible for managing the property as you direct for the benefit of listed beneficiaries which can also be the Grantor, in which case, upon the Grantor’s death, the trustee is generally directed to either distribute the trust property to Grantor’s beneficiaries, or to continue to hold it and manage it for the benefit of such beneficiaries.
What is a Revocable Trust?
Revocable Trust is the Trust where the Grantor retains the right to revoke or amend the trust. This means that the Grantor essentially retains ownership of the trust throughout his/her lifetime and can continuously manage and amend it. These trusts do not help avoid estate tax or give a protection from creditors.
What is Irrevocable Trust?
In the Irrevocable Trust, the grantor gives up title (ownership) of the property to the trustee and the grantor cannot make changes to it without permission of the trust’s trustee and beneficiary. This arrangement is used for tax advantages and possible asset protection for the grantor.
What is a testamentary trust?
A testamentary trust does not take effect until the grantor’s death and is set up as a provision is the Grantor’s Will. A testamentary trust is a trust contained in a Will that only comes into being at the death of the testator, at the time your Will is probated under court supervision, so long as the conditions requiring the creation of the trust exist at the time of funding and there is property to fund the trust. When a testator does not want all of his/her assets to go outright to the beneficiaries at his/her death and is not providing for them in a separate living trust, the will should contain a testamentary trust. For example, a Will can create testamentary trusts for any minors who otherwise would inherit property under the will and a trustee would be named and would manage the investment and distribution of the inheritance for the minor’s benefit until the trust terminates pursuant to the testator’s wishes.The disadvantage of this trust is that it is subject to the Surrogate Court’s jurisdiction and various requirements and court rules that can drive up the costs of maintaining the trust.
Should I have a trust?
Speaking to a knowledgeable estate planning attorney is absolutely crucial when answering this question. This is because your attorney can ensure that you are aware of various techniques and tools you can utilize to create an estate plan that is tailored to meet your particular interests. Each client has individual needs and concerns to address. Trusts have many lucrative benefits, however, if set up improperly, there are potentially inconvenient or negative aspects that can disrupt your objectives and planning. You should know what you can do to maintain control over the disposition of your property even after your death. You also want to make sure you know exactly what will happen to your assets after you die so that your loved ones are taken care of according to your plan. We have many clients that prefer to discuss various matters and have their estate plans explained or prepared with a Russian-speaking attorney. Our attorneys are willing and able to thoughtfully and meaningfully assist any client specifically looking for a Russian lawyer for representation and guidance. An estate plan plays a very important part in ensuring future financial security for yourself and your loved ones. This is why it is crucial that you have a thorough understanding of all aspects involved in the preparation of such a plan in the language of your choice.
What are the advantages of using Living Trusts?
1) Privacy. Living trusts are not filed in a probate court whose files are a public record. This can ensure that sensitive details regarding the value of certain assets in your estate will not become public knowledge.2) Living trusts can be used to lower probate expenses and shorten the length of the probate proceeding.3) The trust offers maximum flexibility, control and coordination in disposing of the client’s assets. Just like a Will, it can be used to distribute your assets pursuant to your instruction.4) A valid trust is governed by a contractual agreement and is continuously and dutifully managed by a trustee for the benefit of the grantor and named beneficiary making it less likely to be challenged or become tied up in surreptitious and superfluous litigation challenging proper financial distribution or the grantor’s intent.5) Making modifications and amendments to a trust is significantly easier than amending a Will and the process has fewer requirement formalities.6) Living trusts can better protect and shield your assets. In many states, assets transferred to a trust during the grantor’s lifetime are protected after the grantor’s death from claims of both creditors and the grantor’s surviving spouse.7) A funded living trust can be set up to provide uninterrupted management of grantor’s assets should the grantor become incapacitated.
What is Beneficiary Designation?
Beneficiary designations dictate how some commonly owned assets transfer on the owner’s death. These are assets that generally pass outside the regular probate process in accordance with the terms of the contract between the owner and the institution that holds and manages the asset. Such accounts often include, but are not limited to, life insurance policies and retirement plans (example: 401k and IRA).
What is a UTMA account?
The Uniform Transfers to Minors Act (UTMA) allows a minor to receive gifts, such as money, patents, royalties, real estate and fine art, without the aid of a guardian or trustee. Under the UTMA, the gift giver or an appointed custodian manages the minor’s account until the latter is of age. The UTMA also shields the minor from tax consequences on the gifts, up to a specified value. The Act allows the donor to name a custodian who has the fiduciary duty to manage and invest the property on behalf of the minor until the minor becomes of legal age. The property belongs to the minor from the time the property is gifted. It is import to note that once you have transferred assets into an UTMA account, you are NOT permitted to take them back. Once the assets are transferred to the minor, they belong to that minor. Therefore, you want to make sure that you don’t transfer funds that you might need to recover at a later time. Further, once the child reaches the age of majority, the custodians of the account must turn over the assets to the child and have no control over how the child will use that money. Consider if you want all the money in the account in your child’s hands at that age? This can be a problem if the child is not mature, thoughtful or careful enough to handle the money and dissipates it.
What is “Per Stirpes” distribution?
Latin for “by the root,” it is a method used for directing the distribution of a person’s estate. In a “Per Stirpes” distribution the property is proportionately divided between beneficiaries according to their deceased ancestor’s share.For example, if a bequest (gift) is made “to my issue per stirpes,” and there are 4 children, each one would receive 25% of the testator’s estate after the death of the testator. If one of the children predeceases (dies before) the testator, leaving two surviving children, those two surviving issue would divide the 25% share that their deceased parent would have received.