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Estate Planning Documents

estate planning lawyerWill

The purpose of a will is to set down the manner and disposition of an individual’s assets and his or her estate, at the time of his or her death. A will has no effect during a person’s lifetime. It only deals with the disposition of the person’s assets at the time of death. The will should be crafted by an experienced estate planning lawyer. It needs to be executed in accordance with specific formalities as prescribed by law. These formalities vary from state to state.

Living Will

A living will is a document that deals with life prolonging issues. In a living will, an individual specifies which life prolonging measures and medical procedures he or she wants utilized in the event of his or her incapacity. The living will also needs to be executed with specific execution formalities. This document should only be drafted by an attorney experienced with elder law end of life issues.

Revocable Living Trust

A revocable living trust is a testamentary document similar to a will. However, a revocable living trust is sometimes prepared as a substitute for a will. Revocable Living Trusts avoid probate. It is recommended, when the individual drafts a Revocable Living Trust that they also draft a pour over will to go with it. A pour over will is designed to distribute assets which are left out of the Revocable Living Trust.

Power of Attorney

A Power of Attorney is drafted by an individual who is referred to as the principal. The principal appoints someone who deals with financial issues such as paying bills, if he or she becomes incapable of dealing with these financial issues. The Power of Attorney can be drafted in a manner which allows it to stay in effect even in the event the principal becomes incompetent. Powers of Attorney are specifically designed to deal with financial matters and not with medical or health care issues.prepares and litigates wills and trusts

Amending Irrevocable Trusts

estate planning attorneysIrrevocable trusts are an invaluable estate planning resource. However, due to tax changes (fiscal cliff) and other issues, irrevocable trusts with an estate plan in mind, need to be changed related to subsequent modifications of estate tax laws. Can irrevocable trusts be amended? The answer to that is yes, in certain circumstances.

New York Estates, Powers and Trusts Law, section 7-1.9, provides a means to modify, change or amend an irrevocable trust. This section of law allows the settlor, the individual who made the trust, upon written consent of all trust beneficiaries, to amend or revoke the trust in whole or in part. In the event that one beneficiary refuses to agree to the modification or is unable to consent to the modification, this section of the estate law cannot be utilized to amend or modify the trust. Examples of situations, where trusts cannot be amended are when one of the beneficiaries is a minor, an incompetent or the settlor has died.

In the event the settlor becomes incapacitated but has previously executed a Power of Attorney, the individual with the Power of Attorney can provide consent on behalf of the settlor to the amendment or modification of the trust.

Decanting A Trust

Section 10-6.6 of the New York Estates, Powers and Trusts Law allows trusts to be decanted. Decanting involves the moving of trust assets from one irrevocable trust to another trust. The new trust can be modified even if a necessary person under EPTL section 7-1.9 was unable to get consent for an amendment under this section.

Conclusion

Should you have an irrevocable trust and wish to make changes, modifications or alterations, New York law allows various routes to accomplish these goals. You should consult with an experienced estate planning attorney if you or other family members face this issue.assistance in planning your estate

Why Have an Irrevocable Trust?

living-trusts-typesWills, revocable trusts, and irrevocable trusts are all estate planning devices. Revocable trusts are a type of trust that can be changed, modified, or revoked at anytime. This type of trust allows you to change your mind with regard to all aspects of the terms of the trust. These trusts are very flexible.

Uses of a revocable trust:

1. Revocable living trusts avoid probate. The assets in the trust at the time of the death of the individual who made the trust pass directly to the beneficiary. The trust does not have to be probated.

2. It is private document. Wills need to be probated. This opens up the terms of the will to review by a court. Once the will is filed with the courts it becomes a public document and other individuals can obtain copies of the will. An example is Jacqueline Kennedy Onassis’s will in Manhattan. So many people wanted to see it that it was displayed to the public mounted it under plexiglass. The details of your assets and the individuals who receive your assets remain a private matter.

3. It establishes a plan that deals with mental disabilities such as Alzheimer’s disease and other mental illnesses that effect seniors. When you place assets in a revocable trust and the person who created the trust becomes disabled, the trustee or alternate trustee supervises the trust and distribution of the assets therein. If you do not have this type of trust or a power of attorney, it becomes necessary for your loved ones or next of kin to bring a guardianship proceeding under article 81 of the New York Mental Hygiene Law to appoint a guardian for you.

Should you have questions regarding revocable trusts contact the trust attorneys at the Law Offices of Schlissel DeCorpo at 1-800-344-6431 or by email.

Power of Attorney Laws Changing in New York

estate-planningSpurred on by financial abuse of the elderly, New York will change its laws with regard to executing a valid “Power of Attorney” (“POA”) document. The new law will be effective September 1, 2009, although POAs executed before that date in compliance with the old law will still be valid.

This development makes it especially important to use an attorney who activly practices Wills, Trusts and Estate law and is familiar with these significant changes in the law.

The following are some of the changes that attorneys must now consider when drafting and handling executions of General POA documents starting Sept. 1st, pursuant to the new New York General Obligations Law §5-1501:

  • The principal’s signature of the POA document must be both notarized and witnessed by two disinterested witnesses.
  • The agent must also sign the power of attorney and his/her signature must be notarized (although the signature does not have to take place at the same time as the principal’s signature).
  • If a principal intends to give the agent power to make gifts on his behalf to anyone he has not been accustomed to giving to or which exceed $500 per beneficiary per year, he must simultaneously execute a Statutory Major Gifts Rider (“SMGR”).
  • The statutory “Caution to the Principal” and “Important Information for the Agent” sections must be included.

These changes were originally set to become effective March 1, 2009, but Gov. Patterson agreed to sign off on an extension to September 1st, 2009 in order to allow attorneys to fully familiarize themselves with these sweeping changes. So give us a call if you are planning to execute a Will, Power of Attorney, Health Care Proxy, or other estate planning document.

Picture courtesy of sayrelaw.com.

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