Estate Planning FAQ
A Will is a legally binding document where the testator, or Will maker, selects fiduciaries to carry out the Will terms, selects beneficiaries who may partake in receiving assets that pass through the Will and directs how estate expenses should be handled. A Will is only operative upon death but since New York follows the solemn probate regime, this means that any Will submitted to probate must satisfy strict formalities of Will execution and the Will maker must have testamentary capacity for it to be reviewed by the Surrogate.
An original Will must be presented to the Surrogate’s Court in most cases and if duplicate originals were signed then both originals must be submitted. If the original Will can not be found, then the Court presumes that the Will maker revoked it. However, if the Will original was left with its drafting attorney, then the Surrogate is more likely to admit a copy. For best practices, we safeguard our clients’ Wills in our office vault and provide them with electronic copies and, upon their request, conformed copies.
Under New York law, you may not disinherit your spouse. If you are married and fail to provide for your spouse in your Will, then absent a prenuptial agreement or extraordinary circumstances, your spouse has a right of election to collect the greater of $50,000 or one-third of your estate if you have a Will. If you do not have a Will, then based upon your remaining biological or formally adopted family members, your surviving spouse will be entitled to a minimum of $50,000 plus one half of the rest of your estate, excluding exempt property like household items and the family car.
There is no legal obligation to include your children in your estate plan in New York. However, New York law attempt to treat all of your children equally. Therefore, if you provided for other children in your Will and thereafter have another child, such “after-born child” may petition the Surrogate's Court to a share equal to what you have provided to your other children.
A power of attorney allows a principal, or the person giving the power, to appoint an agent to make some or all important financial decisions on the principal’s behalf while he/she/they is alive yet incapacitated and terminates upon the death of the principal. A power of attorney is an important document that in the hands of the wrong agent can be a license to steal.
A health care proxy allows a principal, or the person signing the proxy, to appoints an agent to act in the principal’s best interests regarding health care matters while he/she/they is alive yet incapacitated and terminates upon the death of the principal. The health care agent should be very familiar with the wishes of the principal and should be able to make difficult yet informed decisions regarding the health of the principal after reviewing all information available to him/her/they by physicians caring for the principal at the time.
A living will is not a Will: it is is a health care directive that should be read alongside a health care proxy. A living will allows the signer to set forth his/her/their wishes regarding artificial means of life support and anatomical gifts.