Frequently Asked Questions

Estate Planning & Probate

 
What is a Will and why do I need one?
A Will is a document in which you direct how you wish to have your property distributed after your death. Property you can distribute in your Will includes your personal effects (such as your jewelry, furniture, collections, automobile, etc.), any real estate, bank accounts, cash or investments that you own in your own name alone. It does not control the distribution of any asset that is owned jointly with a right of survivorship or which already has a beneficiary designation (such as life insurance, IRAs, or other retirement accounts). Having a Will allows you to create your legacy and name those you want to share in your estate. It further allows you to appoint someone you trust to carry out the terms of your Will. If you die without leaving a Will, distributions will be made as required by New York State law.
 
What does "probate" mean and how does it affect my Will?
Probate is a legal process in which a court (in New York State this is the Surrogate’s Court) oversees the distribution of a deceased person’s estate by confirming that a person’s Last Will and Testament is valid and appointing an executor to act on behalf of the estate. The probate process generally takes about two to three weeks to complete. If there are complicated circumstances, this process can take a bit longer. Certain family members (even if they are not included your Will) are entitled to receive notice of the probate proceeding upon your death. This may alter what documents you decide to create. We can assist you with this decision during our first meeting.
 
What does an executor do?
An executor is a person or institution named in a Will and appointed by the court to carry out the Will’s instructions and to manage the probate estate. The duties of an executor include making an inventory of all property, collecting assets, paying debts and expenses, and distributing the remaining assets of the estate to the beneficiaries. Creating a Will enables you to decide who should act in this capacity. An executor cannot act until the Surrogate’s Court issues a special document during the probate process.
 
What if someone dies without having a Will?
In New York State, a deceased person’s assets or estate will be administered in accordance with New York State law to various family members depending on who survived that person. If the deceased person held accounts jointly or had assets that named specific individuals, those assets will pass to the joint owner of the accounts or to the named beneficiaries. Certain family members will have the right to serve as the administrator of the deceased person’s estate and the Surrogate’s Court of the county in which the person died will control the administration process.
 
Do I need to name a guardian under my Will?
It depends. If you have a minor child who is under the age of 18, then you will want to have someone appointed for the person and property of that minor child, to make sure that if you are that minor child’s last surviving parent, that he or she will be taken care of upon your death. In your Will, you can nominate whom you wish to take care of your minor child or children.
 
What is a trustee?
A trustee is an individual or organization that holds or manages and invests assets for the benefit of another, known as a beneficiary. The basic duties of a trustee involve the collection, management and investment of trust assets and the accumulation and distribution of income and principal to beneficiaries, all according to the terms of the trust document. The duties of a trustee will vary based on each trust’s facts and circumstances. These duties are defined both in the trust document and by law. A trustee can be held personally liable to the grantor and the beneficiaries for his or her failure to reasonably comply with these duties.
 
What is a beneficiary?
Beneficiaries are persons or organizations, such as charitable entities, that you elect to receive a benefit upon your death. Selecting beneficiaries (and updating them over time) allows you to make sure your assets will be distributed to the persons or charities of your choice.
 
Should I consider a Revocable Living Trust?
It depends on what you are trying to accomplish. A revocable living trust is an agreement between a grantor (usually the individual who owns the assets) and a trustee, for the benefit of another (a beneficiary). The grantor transfers property to a trustee to be held and distributed to a beneficiary according to the grantor’s instructions. Revocable trusts may be created for a variety of reasons; most often they are created when one would like to avoid probate. Also, a revocable trust can be used when one owns property in a different state than the one he or she resides in to avoid a probate proceeding in the state where the property is located (also known as an "ancillary probate"). Finally, trusts are useful in families where the parents may foresee a Will contest by avoiding the probate process. Because revocable trusts can be terminated or amended and property can be retrieved, assets held in revocable trusts are included in your estate for death tax purposes.
 
What is an Irrevocable Living Trust?
An irrevocable living trust is an agreement between a grantor and a trustee for the benefit of a beneficiary. Unlike the revocable trust described above, an irrevocable trust cannot be amended, modified, changed or revoked completely. Generally, the value of irrevocable trust property is not included in your estate for death tax purposes, as you no longer own the property.
 
Do I need to worry about beneficiary designations for life insurance and retirement accounts?
Yes. Most people don’t update these forms for years. Life changes, and these forms should be changed accordingly. You want to make sure that your loved ones share in proceeds the way you want them to. For example, it generally is not a good idea to name minor children as your beneficiaries. You will want to name your trustee under your Will for the benefit of your minor child/children. We can discuss these with you in more detail when we meet.
 
Will my family have to pay estate taxes when I die?
It depends. There are two types of estate taxes: federal estate taxes and state estate taxes. For New York residents, an estate may be subject to the New York estate tax if the total of a deceased person’s taxable estate exceeds $2,062,50. After March 31, 2015, the New York State estate tax exclusion amount will increase to $3,125,000. For purposes of New York estate tax, the gross estate includes all property that a person owned, had control over, or had an interest in on the date of his or her death. As for federal estate taxes, if the value of the gross estate reduced by allowable estate tax credits and deductions is less than $5,430,000 (this is the exemption for 2015), no federal estate tax will be due.
 
How long will the estate planning process take?
After an initial meeting, we will send you draft documents within two to three weeks. After you review the drafts and notify us of any changes you would like to make, we will finalize all documents for signature and schedule a time for you to sign your documents.
 
Will I be charged for an initial meeting?
There is a consultation fee of $250 for a one-hour initial meeting. If the initial meeting lasts longer than one hour or takes place at a location other our office, you may be charged additional fees. If you decide to work with us for your estate planning needs, then we will waive the consultation fee provided that you retain our services within three months from the date of the initial consultation.
 
How much will it cost me to prepare estate planning documents?
For less complex matters, we charge on a flat fee basis. Standard Wills with no tax planning provisions and no trusts will be less expensive than Wills containing trust provisions or tax planning language. Our Will fees range from $500 — $1,100, depending upon the complexity of the document. For more complex matters, such as planning for second marriages or for a loved one with special needs, our fees will be higher and based upon both a flat fee and our hourly rates.
 
Will I have to sign a retainer agreement?
Yes. All clients are asked to sign a retainer agreement that outlines the scope of services that we are providing, how our fees will be calculated and billed, as well as your rights as a client. For more basic services, the scope of the retainer agreement will be much simpler.
 

Advance Directives

 
What is a Health Care Proxy and why do I need one?
A Health Care Proxy authorizes a particular individual (your "agent") to communicate binding health care decisions for you when your doctor has determined that you are not capable of communicating them for yourself. The proxy assures your doctors and the hospitals in which you receive treatment that they can rely on the agent’s expression or interpretation of your wishes regarding medical treatment.
 
You can note special instructions for your agent or limit your agent’s authority on a Health Care Proxy. If you do not state any limitations, your agent will be allowed to make all health care decisions that you could have made, including the decision to consent to or refuse life-sustaining treatment. The Health Care Proxy provides options regarding the administration of artificial nutrition and hydration (food and water by tubes) in the event of an irreversible medical condition.
 
It is important to select someone you trust to communicate your health care wishes. You cannot name your doctor as your health care agent. It also is important to make sure that the person you select to serve as your health care agent understands what your wishes are with respect to treatment. This will allow your agent to follow your wishes when you cannot communicate them directly to your health care providers. You may only name one agent to act at a time, but you can nominate a successor to act if your primary agent is unable to serve.
 
I would like to donate organs, so how do I do that?
You can enroll in the New York Donate Life Registry online through the New York State Department of Motor Vehicles or the New York Department of Health. You can also register at the Board of Elections. More information is available by calling the New York State Organ and Tissue Donor Registry at 1-866-NYDONOR (1-866-693-6667). You may also elect to donate organs when you renew your license.
 
What is a Power of Attorney and do I really need one?
A Power of Attorney is a document in which you name someone to act as your agent with regard to your personal legal or business affairs. The person you name in your Power of Attorney is called your "attorney-in-fact" or "agent." A Power of Attorney can be specific (for example, it may authorize your agent to act on your behalf with respect to only one or two types of transactions) or it can be broadly worded to allow your agent to act on your behalf with respect to a wide array of matters. The Power of Attorney is not effective until both the principal and the agent have signed it.
 
The Power of Attorney is a two-part document comprised of the New York Statutory Short Form and the Statutory Gifts Rider. The Short Form allows you to nominate an agent to handle your regular personal business affairs. The Gifts Rider authorizes the agent to make gifts on your behalf of more than a total of $500. This authorization can be very important if an agent needs to use the Power of Attorney to make transactions which will assist in one’s long term care needs. The law always requires the agent to use the Power of Attorney only for the best interests of the principal.
 
How much will it cost me to prepare Advanced Directives?
The fee range for a standard Power of Attorney is $75 — $150 depending on its terms. The fee for a Health Care Proxy is $50. However, we do not charge extra fees for a Power of Attorney or a Health Care Proxy if they are prepared in conjunction with a Will or Trust. We will review all fees at our initial meeting.
 
Will I have to sign a retainer agreement?
No. We do not require clients to sign a retainer agreement if we only are preparing a Power of Attorney and/or a Health Care Proxy. If we prepare these documents as part of the overall estate plan, then this service will be listed on the retainer agreement for estate planning services.
 

Elder Law

 
I am concerned about long term care expenses, what should I do?
The first step is to obtain as much information as possible about elder law so that you understand your options. Every person’s situation is different, so it is very important to have a plan devised to fit your specific needs. There are many planning options available to help you protect your assets.
 
Will I be charged for an initial meeting?
Yes. You will be charged for the time we spend with you at our standard hourly rates.
 
Will I have to sign a retainer agreement?
You will be asked to sign a retainer agreement if you hire our firm to assist you. The retainer agreement will outline the scope of services that we are providing, how our fees will be calculated and billed, as well as your rights as a client. For more basic services, the scope of the retainer agreement will be much simpler and there likely will be no retainer fee. For more complex services, the agreement will be more detailed and you may be required to pay a retainer fee before we begin any work. We can discuss this with you at our initial meeting.