Estates, Trusts & Probate

An estate is a total property, real and personal, owned by an individual at his or her death.

Each state has a comprehensive law that regulates estate administration. 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 court must appoint an individual responsible for handling the administration of the estate. If a Last Will and Testament exists, the court determines its validity and appoints the executor named in the will to carry out the probate process in a probate proceeding. If a person dies intestate (without a valid Will) the court needs to locate an appropriate interested party that will be appointed to serve as the administrator in an administration proceeding. 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 all assets are located 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. Probate can also be an expensive and lengthy process that can be unnecessarily frustrating and delay distribution of assets to intended beneficiaries. 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. You should speak with a knowledgeable estate planning attorney to consider what options are best for you.

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).

The time that it takes to complete the probate process can vary significantly. To carry out the probate process beneficiaries, heirs, creditors and any other interested party must receive proper legal notice of the probate proceeding. All the parties need to be located. All the assets in the estate need to be gathered. Liabilities need to be determined and paid for, along with taxes and any other outstanding debts. The beneficiaries must then wait for the court to issue an order on the petition before anyone is authorized to administer the decedent’s individually held assets. Only then, after all of these events are completed to the satisfaction of the Court, will the remaining assets be distributed to the beneficiaries. 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.

Every well-crafted estate plan should include a Last Will and Testament. A Last Will and Testament is a written declaration of what a person wants done with his or her 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 that will be submitted for probate and enforced by a court. A Will controls the assets that are owned by the decedent at death and that do not pass by survivorship or beneficiary designation. The executor of an estate must probate a Will which means that it is part of what is known as the probate estate. 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.

If a decedent (the person that has passed away) does NOT leave a Last Will and Testament he/she is said to have died “intestate.” Because the deceased person left no direction on how to dispose of the assets in the estate, New York law provides for who will be named executor of the estate and how those assets will be distributed among the surviving members of the decedent’s family. You should speak with an estate planning attorney to discuss if distribution of your assets according to New York law serves your goals and interests. Each state has its own laws that govern the probate process. 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.

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 Last Will and Testament. This person will be the executor of the estate. An executor must be appointed by the Surrogate’s Court and must petition the court to probate a Will. An executor of the estate then 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.

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 (the assets) for the benefit of the beneficiaries. A valid trust does not pass through probate because it is not part of the probate estate. There are essentially two basic types of trusts: a living trust and a testamentary trust.

A living trust is a trust that you create during your lifetime. It can be either revocable or irrevocable. A living trust is legally in existence during your lifetime. The trust owns the property that you have transferred into it during your lifetime. While you are living, the named trustee of the trust (which can be you) is responsible for managing the trust property as you direct for the benefit of the listed trust beneficiaries. Following your death, the co-trustee or successor trustee is generally directed to either distribute the trust property to the beneficiaries, or to continue to manage it for the benefit of the beneficiaries pursuant to your trust document’s instruction. An essential feature of trust administration is that a valid trust is not part of the probate estate and does not pass through your probate estate under the supervision of the Surrogate’s Court.

Revocable Trust is the Trust where a Grantor (the person who creates the Trust) 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 distribute the trust property.

With an Irrevocable Trust, the grantor gives up title (ownership) of the trust property to the named trustee and the grantor cannot make any changes to the trust without permission of the trust’s trustee and the trust beneficiary. This arrangement is used for tax advantages and possible asset protection for the grantor.

Speaking to a knowledgeable estate planning attorney is absolutely crucial when answering this question. This is because your estate 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 circumstances and interests. Each client has individual needs and concerns to address. Living 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 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. At Beress & Zalkind PLLC e have many clients that prefer to discuss various matters and have their estate plans explained or prepared with a Russian-speaking estate planning attorney. Our estate attorneys are willing and able to thoughtfully and meaningfully assist clients 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 important that you have a thorough understanding of all aspects involved in the preparation of such a plan in the language of your choice.

1) Privacy. Living trusts are not filed in a probate court whose files are a public record. Remember the executor of your estate must petition the Surrogate’s Court to probate a Will because a will is part of your probate estate. Trust administration proceeds outside of the probate process. 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 estate probate proceeding.

3) The Living trust offers maximum flexibility, control and coordination in disposing of a client’s assets. Just like a Last Will and Testament, it can be used to distribute your assets pursuant to your specific instruction by the named Trustee.

4) A valid living 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. When an executor of a Will submits the Last Will and Testament for probate a contest by an interested party can cause delay and extensive legal fees. Similarly, if you die intestate (without a Will) succession laws can frustrate your intent and leave your loved ones unprotected or incapable of accessing the estate’s assets because they are tied up in the various court proceedings. A probate lawyer can assist in the preparation of your trust and prevent such unnecessary delay, cost and difficulty during estate distribution.

5) Making modifications and amendments to a living trust is significantly easier than amending a Will and the process has fewer requirement formalities. Amending a Last Will and Testament or a Living Will can be a very cumbersome and frustrating process as there are many requirements that must be followed according to New York State law.

6) Living trusts can better protect and shield your assets. In many states, assets transferred to a living trust during the grantor’s lifetime are protected after the grantor’s death from claims of both creditors and the grantor’s surviving spouse. An estate planning attorney can assist you in protecting your assets in the best way for your loved one’s benefit.

7) A funded living trust can be set up to provide uninterrupted management of grantor’s assets should the grantor become incapacitated.

Trusts are contractual agreements in which a person (a grantor) transfers money or assets to a third party (a trustee) who agrees to hold and manage the property for the benefit of others ( the beneficiaries). The trustee preserves, manages and distributes the property according to the grantor’s directions as they are written in the trust agreement. There are many different kinds of trusts and they can be established while the grantor is alive or after his/her death. They can be used to achieve gift or estate tax savings for the beneficiaries and if properly written, they may also be able to protect the property from beneficiaries’ creditors. Trusts can be quite complex and should only be drafted or interpreted by a licensed attorney..

Designed to hold and manage property for disabled children and adults without triggering the loss of government benefits.  Many states have adopted rules for creating and administering these trusts. They may be created during a parent’s lifetime or after death. Often, their main purpose is to “supplement” government assistance to disabled beneficiaries. When they are properly drafted, it may be possible for government benefits to remain available to disabled beneficiaries into the future.

legal documents which allow us to give someone else the authority to act on our behalf while we are alive and to direct in advance of our incapacity or our death, what decision we want made for us and how we want our assets to pass upon our deaths

It allows you to appoint an agent to make any and all Health care decisions for you if and only if you cannot do yourself. A healthcare proxy  gives someone we trust the ability to make medical decisions for you if because of sickness or injury you lose the capacity to make these decisions yourselves.

A living will is another document that is important for your estate planning needs. Specifically,a living will which is sometimes referred as an “advance directive” is a valuable legal documentwhere an individual specifies the medical care that he/she may or may not want in the event thathe/she is unable to communicate his/her wishes at the time. This document is distinct from “donot resuscitate order” which provides for CPR preferences and usually discussed with a doctor.

For example, a hospital or medical care provider would refer to a living will in the event that aperson becomes unconscious from a terminal disease or has an incurable or irreversible mental orphysical condition with no reasonable expectation of recovery. The living will would state whetherthe person wishes to receive life-sustaining treatment (tube feeding, breathing machines, cardiacresuscitation or other similar medical intervention).

A living will is typically executed alongside a health care proxy. A health care proxy is anotherlegal document in which an individual names an agent to make health care decisions on his/herbehalf if he/she unable to do so for him/herself. Your wishes and directives for medical carewould be stated in your living will.

Some examples of medical care directives that a living will can dictate include:

• Preferences for blood transfusions;
• Pain medication options;
• Request for feeding tubes;
• Any other specific directive or instruction.

While New York State does not have a specific law governing living wills, the New York Courtof Appeals has stated that living wills are recognized as long as they provide “clear andconvincing” evidence of your wishes. Therefore, an adult (aged 18 and older) may expresshis/her wishes with respect to his/her medical care by executing a living will.

New York State does not have a standard form nor specific formality requirements for theexecution of a living will. However, it is recommended that a living will be witnessed by twowitnesses and notarized so that the document can be recognized in states that do requirenotarization.

It allows you appoint an agent you trust and give that agent the ability to handle your financial affairs.  It is an extremely complex document. A POA can have one power or many  depending on your needs and wishes. You can also allow your agent to make gifts using your assets, although that requires an extra document known as a Statutory Gifts Rider. At its simplest, a power of attorney allows you to name as many agents as you wish to handle your assets. It is effective only while you are alive.

At death, we need a will to distribute anything that we own solely in our own name, and without a pre- designated beneficiary at their simplest, they allow you to state who gets an asset when you die and to name an executor who manages the will.  If you have minor children, you need to name a guardian for minors.