Everyone knows they should plan for what happens to their property when they die. Yet, only some know how or even the options, resulting in many people failing to create comprehensive estate plans. Mastering effective and efficient estate planning is a skill that takes years to develop, but this guide, which you can use as an estate planning checklist, should get you started.
Then, when you are ready, reach out to the Law Office of Andrew M. Lamkin, P.C., to speak with an estate planning Long Island attorney with nearly two decades of experience. We can help you make an efficient, comprehensive plan to protect what matters.
What Is Estate Planning?
When you die, the property you leave behind becomes your estate. That property can pass through probate, typically through a will, or outside of probate. Planning your estate involves selecting what legal mechanism you want to use to pass your property. Then, you execute those legal documents, typically a will and one or more trusts.
Estate planning also involves planning your care as you age. Advance directives, powers of attorney, and certain trusts safeguard your assets and help you enforce your wishes when you cannot express them.
Planning for Probate
Your property is distributed through intestate succession if you do not leave a will. If you have a spouse or children, they get the property. If not, your parents, siblings, grandparents, aunts, uncles, and cousins are all in line.
Family relationships are often complicated, so this state of affairs only sometimes works. To avoid it, you create a legally enforceable will.
How Do You Make a Valid Will?
Sometimes called “wills formalities,” the legal requirements to create a valid will are strict. The testator, the person who makes the will, must be 18 years or older and of sound mind to create a will. In addition, the will must be:
- Written,
- Signed by the testator,
- Witnessed by two individuals, and
- Signed by both witnesses.
Rarely are “holographic” and “nuncupative” wills considered valid. Holographic wills are entirely handwritten by the testator but fail to meet the required formalities, and nuncupative wills are unwritten. In New York, holographic and nuncupative wills are only valid when made by members of the armed forces during active service or individuals at sea.
What Makes a Will Invalid?
There are three common reasons why wills are declared invalid. First, a will failed to satisfy the wills formalities discussed above.
The second is that the testator lacked testamentary capacity, tying back to the requirement that a testator be of sound mind. A will is invalid if the testator did not understand what they were doing.
Finally, wills can be invalid due to undue influence. Undue influence occurs when someone induces the testator to write the will through improper means like threats, bribes, or fraud.
Planning Outside of Probate
Probate can be slow and expensive, so many estate plans at least partially bypass it. Often, this is accomplished through a trust.
Trusts
In legal terms, a trust separates legal and equitable title to property, meaning multiple people must be involved. The trust creator is the grantor, the trust benefits beneficiaries, and a trustee manages the trust.
A grantor can create a trust during their lifetime, called a living or inter vivos trust. Or they can make the trust after they die, which is called a testamentary trust. The grantor can also retain the right to take trust assets back through a revocable trust or surrender the right to take assets back through an irrevocable trust.
Trusts can have many purposes, like:
- Protecting assets,
- Providing for a disabled loved one,
- Controlling minors’ use of funds, and
- Giving to a charitable cause.
Trusts are adaptable instruments that you can modify to suit your needs.
Other Non-Probate Assets
Any property that passes to another person on its terms may bypass probate. For example, you can get a joint bank account or designate life insurance beneficiaries with your spouse.
Planning for Aging
Our health needs change as we age. Unfortunately, we can become legally incapable of making our own decisions during that time. Several documents can help you plan for that possibility.
Advanced Directives
Advanced healthcare directives are also called living wills. In them, you lay out your preferences about medical treatments you do and do not want to receive in given circumstances if you are incapacitated.
Powers of Attorney
There are two typical powers of attorney: medical and financial. In both, you select a trusted person to act in your place. Your power of attorney can sign documents on your behalf and make highly consequential decisions for your life.
Medicaid Planning
Many believe you must spend down your assets to qualify for Medicaid, but that is not always true. With careful planning, you can establish Medicaid trusts, protecting your assets while still qualifying for Medicaid coverage.
Getting Started
Even once you are familiar with your options, deciding how to meet your estate planning needs is challenging without experience. Once you are ready, contact the Law Office of Andrew M. Lamkin, P.C., to meet with our experienced attorney and discuss estate planning in Long Island.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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