Executors and Estates

Attorney for ExecutorsThe individual named as the executor in a Will is entrusted with the assets of the individual who drafted the Will after the individual dies. The executor has responsibilities with regard to administrating the estate, accounting for its assets, paying taxes, distributing the assets of the estate, and dealing with a variety of other issues. Executors responsibilities have not changed in recent years. However, the responsibilities have been made more complicated.

In the past an executor would go to the decedent’s home, look for documents concerning assets, try to ascertain whether there was a safety deposit box, and by and large was usually able to locate documents that enabled him or her to determine what the assets of the estate were. This is no longer the case today. Many individuals maintain all of their financial documents online. An executor would usually not know the password or user names which would enable him or her to be able to get into these accounts. Obtaining access to a decedent’s digital information has become a major problem facing executors.

Easing Burdens and Responsibilities of Executors

The best way for an executor to ease his or her burdens is to hire a law firm which has a team of attorneys, accountants, paralegals, and other individuals who can help him or her carry out the responsibilities of an executor.

The following are a list of some of an executor’s responsibilities:

  • Probate the Will: The executor needs to find the Will, hire an attorney, and see to it that the Will is probated.
  • Collect assets: The executor must identify, collect, value and manage and safeguard all of the estate’s assets during the period of time the probate proceedings are making their way through the courts. This can include bank accounts, stocks, bonds, items in safety deposit boxes, household and personal effects, as well as out of state property, out of country property, digital assets and other items such as the decedent’s interests in other estates, trusts or litigation pending in the courts.
  • Filing tax returns: The executor must prepare and file all necessary estate tax returns.
  • Pay the debts and expenses of the estate: The executor must determine who the creditors of the estate are and see to it they are paid.
  • Distribution at the end of the estate: The executor must see to it the assets are appropriately distributed pursuant to the terms of the Will.

Conclusion

Executors have numerous responsibilities which should be taken seriously. These responsibilities in the digital age have become more complicated to carry out.New York Estate Planning Attorney

What is Intestacy?

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Elliot S. Schlissel drafts wills and trusts and aids his clients in all aspects of estate planning.  Elliot handles estate litigation, including issues where a person has died without a will.  He and his associates have more than 100 years of combined experience representing clients.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

Why Should You Have A Will?

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his associates have more than 100 years of combined legal experience representing clients with regard to all aspects of wills, trusts, and estate matters.

Will Requirements

There are a number of requirements necessary to write what is referred to as a self proving will.

I.   You must be of sound mind to write a will.

  • You must understand what you are putting into the will. You must know you are writing a will.
  • You must understand who your next of kin are and what your assets are.
  • You must be 18 years old, in the State of New York, to write a will.

II.   When executing a will, you must state that this is your will. You must acknowledge to the individuals witnessing your will the document in front of you is your will.

III.   You must sign the will at the end and date the will.

IV.   In the State of New York, the will must be attested to by a minimum of two witnesses. Good drafting requirements suggest you use three witnesses, should one of the witnesses become unavailable at a later date. It is important the witnesses be independent, neutral parties and not beneficiaries under your will.

  • The witnesses must see you execute the will and hear you state the document is your will.
  • The witnesses must sign the will after you sign the will, and sign the will in front of each other witness at the same time.

V.   If you have children, the will should:

  • appoint a guardian for your minor children in the event of your death.

VI.   Concerning your assets, the will should identify what your assets are and state who should inherit them.

VII.   Assets not specifically referred to in the will should also be distributed by the will.

VIII.   The appointment of an executor:

  • The executor is responsible for supervising the burial, the payment of your debts, and the distribution of your assets.

Conclusion

The question is, should I have a will or do I not really need a will? The answer is, you do need a will. If you have any type of assets, you should have a will to distribute them. If you have children, your will should name the guardians of your children in the event of your death. If you don’t have a will, the State of New York will determine who receives your assets and who raises your children. For peace of mind and doing what is in the best interest of your children and other family members, hire an experienced, qualified attorney and write a will. You will find it is not that painful and not very expensive.wills attorney in New York

Misconceptions About Wills

long island estate planning attorneysMisconception 1: “I am not rich enough to have a will.”

Response: Oh really! Do you have a car, a home, furniture, bank accounts, pension, 401(k), or life insurance? If you do, you are not too poor to have a will. You may end up being worth more at the time of your death than you realize. In addition to distributing your assets, a will allows you to name an individual to raise your children as guardian in the event you and the other parent should die. What a will does is it allows you to control your assets, your personal papers, sentimental items, and look out for your children’s best interests in the event neither parent is available to raise your children. By failing to write a will, the State of New York determines who raises your children and who receives your assets! You are not that poor!

Misconception 2: “I don’t need a will. My spouse receives all of my assets when I die.”

Response: Only those assets in joint names will go to your spouse. Any asset not in joint names, will not necessarily go to your spouse. If you die without a will in the State of New York, it is stated you died intestate. Under the law in the State of New York, your spouse will receive the first $50,000 and one half of the balance of your estate. Your children will inherit the rest of your estate.
A second issue to consider is, does your spouse have the financial ability to handle your assets in the event of your death. If you write a will, you can name someone to help your spouse deal with these issues.

Misconception 3: “I’ll write my own will, I don’t need a lawyer!”

Response: There are do it yourself will kits on the internet. Unfortunately, the State of New York has very specific requirements with regard to what is in a will, how it is phrased and how it is executed. If any aspect of this is done incorrectly, the will is invalid. A bad will can be worse than no will at all. Improperly drafted wills and improperly executed wills cause all types of litigation. Many of the will kits available on the internet and in libraries are general forms, not specifically designed to deal with the requirements of a will in the State of New York. Wills are not expensive to be drawn up by lawyers. It is a relatively minor expense. For peace of mind, hire a lawyer to write your will.

Misconception 4: “I’ll write a will later, when I am ready to die.”

Response: You never know when you are going to die. You can write a will and change it numerous times. A will is a document that can be amended, changed, withdrawn, cancelled, and rewritten as many times as you want. Write a will when you can. You can’t do it after you die!wills and trusts lawyer on Long Island

Issues to be Considered When Drafting a Will

If you are born, you will die. It is a fact of life. Writing a will is not something most individuals look forward to. However, responsible individuals who want to simplify the lives of their children and other loved ones write wills. A will can help you be sure your assets will go to the persons you want to receive them. A will can ensure if both you and the other parent die, your children will be raised by those individuals you want to raise them. There are certain issues in wills people seem to overlook. The purpose of this article is to bring some of these issues to light.

Guardianship

Imagine you and your spouse are in a car. You get hit by a truck and you both die. Dying from an accident can happen at any time. Accidental deaths are unlike illnesses. Illnesses usually come on slowly and kill you slowly. Accidents kill you quickly!

Who Raises Your Children If You Die?

So both you and your spouse are dead, now who raises your children? If you do not write a will and name someone as the guardian of your children in the event you and the other parent die, the State of New York will determine who raises your children.

You know who will have your children’s best interests at heart. You are the most qualified person to appoint someone to raise your children if you die. Writing a will and naming a guardian for your children in the event of your death can give you peace of mind and allow you to fulfill your parental responsibility to protect your children.

Do I Need a Trust?

A trust may be the best way for you to make sure your home, the money you have in the bank, your stocks, your bonds, the money you have in life insurance, your 401(k) and/or your pension go to your children in a manner which utilizes these funds for the children’s best interests.

Let’s start with the proposition minors cannot inherit. Your children cannot receive any of your assets until they are 18 years old. If you don’t write a trust, and you name your children as beneficiaries in your will, they will receive your assets at the age of 18. 18 year olds are not in a position to handle significant amounts of money!

The best way to see to it your funds are distributed in a manner which is appropriate and that these funds are not wasted, is to set up a trust and a scheme in the trust to distribute your assets over time. The difference between money received pursuant to a will, and money distributed pursuant to a trust, has to do with the fact an 18 year old in a will, will come into your funds in a lump sum basis. Whereas funds distributed pursuant to a trust are paid out over a period of time to cover expenses you designate are appropriate utilization of your funds. New York estate planning attorney

Revoking or Challenging a Will

Elder Law AttorneysA will is referred to as the last will and testament. Every will you write is your last will and testament. If you write a will when your children are infants, that will may not deal with the circumstances of your children 25 or 30 years later. You cannot assume the needs of your children or other loved ones are the same early in their lives as they will be later in their lives. Your assets also may change or vary significantly during the course of your life. You may get married, get divorced, have children, have children who die before you, have grandchildren and be responsible for taking care of parents or other loved ones. All of these issues should be addressed in a will.

If your will is not up to date, you should write a new will. There is a device called a codicil which is an amendment to the will. However, modern drafting of wills strongly suggests against writing codicils. Instead, a new will should be written and the old will should be revoked.

Revoking a Will

How do you revoke a will? A will can be revoked by writing a new will which supercedes the old will. A will can also be revoked by tearing it up and throwing it in the garbage. You can also write revoked across the front of a will, sign your name and date it.

Challenges to a Will

A will can be challenged for a variety of reasons. A will can be challenged based on the fact it was not executed with proper testamentary formalities. There are very specific and detailed requirements necessary to write a will in the State of New York. Certain things must be said, certain things must be done, and the will execution ceremony has very specific requirements. You should never try to write your own will. Always consult with an experienced estates attorney if you seek to draft a will.

Testamentary Capacity

Another reason for challenging a will is the individual did not have the mental capacity to write a will. This challenge basically states that said individual didn’t know what he or she was doing when the will was executed.

Undue Influence

A will can be challenged on the basis someone had taken over the individual who wrote the will’s ability to make independent decisions on their own. This is referred to as undue influence. Undue influence becomes a more significant issue when an individual grows old and is infirm and becomes dependent on another individual who ingratiates themself by pressing them to write a will leaving them all of their assets or a disproportionate amount of the assets.

Fraud or Duress

If an individual is tricked or coerced into writing a will, the will can also be challenged.

Avoiding Will Challenges

Under New York law, a spouse is entitled to a minimum of one-third of your estate or $50,000, whichever is larger. If you write a will leaving your spouse less than one-third, he or she can challenge the will. To avoid will challenges should you want to leave a spouse less than what he or she is entitled to under New York State law, a prenuptial agreement or a waiver of spousal inheritance rights document must be prepared and executed.

If you seek to disinherit a child from receiving assets in your estate, the best way to do this is not to leave the child absolutely nothing. The better technique is to leave the child a minimal amount of the assets in your estate and have a clause in the will indicating if that child challenges the will, they lose the specific amount you left them in the will.

Conclusion

If you have issues or problems, or seek to draft a will, contact an estate planning attorney who can help you meet your goals.estate litigation attorney on Long Island

Who Can Write a Will?

estate planning lawyer in Long IslandThere are a variety of requirements as to who can write a will. To start with, you must be at least 18 years of age to write a will in the State of New York. An individual who has obtained the age of 18 is considered to be an adult and therefore capable of writing a will.

Testamentary Capacity

Individuals who write wills must have testamentary capacity. This means someone who writes a will must know what their assets are. They don’t have to know the exact value, but they need to know more or less what their assets are. Individuals writing a will must know who they would like to receive their assets upon their death.

Sometimes there are issues with regard to the mental capacity of the individual who seeks to write a will. In those circumstances, inquiry must be made with the individual’s physician as to whether that individual is competent to write a will.

Assets Which Pass Outside a Will

Some assets cannot be put into a will. An example of this type of asset is a life insurance policy which must have the beneficiaries indicated in the policies. Certain annuities also cannot be placed in wills.

The Home

If the individual writing a will is married, and the title to the house is maintained in both the husband and the wife’s name, you cannot have the title to the house pass through the will. In cases where the husband and wife are both named on the deed, this is called a tenancy by the entirety, and the house must pass outside the will. The deed itself acts to determine whether if one spouse dies the other spouse inherits. However, when the second spouse dies, the title to the house will pass pursuant to the terms contained in a will. There is also a type of deed called joint tenancy. In joint tenancy deeds, the survivor of the two joint tenants inherits the property. If the house is held as tenants in common, then each of the tenants in common can designate in a will who will receive the house upon their death.

The Beneficiaries

An individual writing a will can leave their assets to anyone he or she wants. Assets can be left to children, family, friends, charities and other organizations. I have repeatedly been asked as to whether a person can leave assets to their dog. This cannot be done. However, a trust can be set up to maintain the care of pets. It also should be noted if an individual seeks to leave assets to a minor (an individual under the age of 18) those assets should be left in a trust until such time as the minor reaches the age of majority (18 years of age).

If you have questions regarding whether a will or trust is right for you, the best way to obtain answers to these questions is to set up a consultation with a qualified, experienced estates lawyer.Estate planning attorney in New York

Woman Dies As A Recluse With No Children

To view today’s blog video, please click on the link below:

https://youtu.be/Il__tbS9m7g

Elliot S. Schlissel is a member of National Academy of Elder Law Attorneys.  He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Copy of Will Denied Probate

In a decision by New York County Surrogate Court Judge Rita Melia, Judge Melia found a copy of a will could not be submitted to probate. There is a presumption when the original will cannot be found that it was revoked by the person who made the will destroying it.

An uncontested action was submitted to Surrogate Melia. It was claimed the original will was lost. A copy of the will had been maintained by the attorney draftsmen, and said copy was submitted to be probated.

Presumption of Will’s Destruction

Justice Melia found in her decision where the decedent was the last person to have custody and control of the original will, and it could not be found at the time of that individual’s death, there is a presumption under New York Law the individual destroyed the will which constituted a revocation of the will. Justice Melia stated the law in New York is that this presumption was rebuttable only by clear and convincing evidence.

Attorney Draftsman Seeks to Have Will Probated

In this case, the attorney draftsman submitted an affidavit to the court. The affidavit indicated he was a close friend of the decedent. He was also a business associate for more than 20 years of the decedent. He and the decedent maintained constant contact during the past 20 years. The attorney stated in his affidavit in the event the decedent had decided to revoke the will he would have been contacted and a new will would have been drafted. He reached the conclusion since the decedent didn’t contact him, the will was lost and not destroyed and a copy of the will should be submitted to probate.

Surrogate Melia Denies Probate To the Copy of the Will

Justice Melia found the affidavit of the attorney draftsman was not sufficient to provide the court with clear and convincing evidence to overcome the presumption the original will had been revoked by destruction by the decedent. Justice Melia therefore denied probate of the copy of the will.

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