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Triaging Your Last Will and Testament

by Michelle Shagenov, Esq.

WillIn my last post, I discussed the power of attorney as a powerful “estate planning“ tool. I explained that a power of attorney allows YOU, not a Court, to choose who will make financial and legal decisions for you. The power of attorney can be used in an emergency or simply for convenience. I emphasized that you should ONLY name someone who is trustworthy and reliable as your agent because a power of attorney grants your agent nearly unlimited authority and control over your affairs and finances. However, your agent’s authority over your affairs ends at your death. *You can find my previous blog post here.

At death, distribution of your property depends on how your property is titled. Upon the death of the property owner, any property or accounts with a named beneficiary, such as joint, ITF, POD, TOD accounts pass directly to the named beneficiary. Property held solely in the deceased person’s name is distributed according to the terms of their “Last Will and Testament” or in the absence of a “will”, to your immediate relatives.

The Last Will and Testament or “a will” is a formal and legally binding document that communicates your wishes about the future care of your family and disposition of your property in the event of your death. YOU decide who will receive your property and personal possessions, how much of your property they will receive, and when they will receive it. A will allows you to gift any portion of your property and possessions to family, friends, or charities.

You can also plan ahead for the care of vulnerable loved ones, such as minor children, family members with special needs, and pets, by establishing trusts that are tailored to their unique needs and setting aside funds for their care. A family member, friend, or organization can be appointed as a trustee to manage the trusts and/or to care for your pets. In addition, you can recommend that a trusted family member or friend to act as a guardian for minor children or a family member with special needs (Guardianship is a separate legal process that requires court intervention and approval).

Whereas the power of attorney allows you to appoint an agent to handle your affairs while you are alive, the will allows you to appoint someone to carry out your final wishes after you are gone. This agent is called an executor. While you may name any one over the age of 18, you should choose only a trustworthy and capable individual to avoid financial abuse and conflict among your loved ones.

If you die without a will or “intestate”, then your property will be distributed to your immediate relatives. Although each state has a different hierarchy for determining relatives’ right to inherit, your surviving spouse and children are always first in line to inherit.  However, intestacy laws do not make any special provisions for minor children, family members with special needs, or pets. Even if you have a surviving spouse, a court may appoint a guardian to manage your minor children’s inheritance. If you do not have a surviving spouse, a court will appoint a guardian for your minor children. Under intestacy, a family member with special needs will inherit funds directly, thus jeopardizing their government benefits. If you die without a will, your next of kin will inherit your pets.   Only your immediate relatives are entitled to receive your property, regardless of your relationship to them.

A will must be signed in the presence of at least two witnesses. Any person over the age of 18 can be a witness, as long as he or she is not named as an agent or beneficiary in the will. Since the will is the only document that expresses an individual’s final wishes, attorneys typically ask the person signing a will a series of questions before the signing to demonstrate his or her capacity and intentions. In some states, attorneys prepare and attach a “self-proving affidavit” to eliminate the need for the witnesses to testify in court about the will signing ceremony at a later date.  This affidavit must be signed by the witnesses and notarized. *You can find my previous blog post here: Link.

After a person dies, the will does not take effect until it has been reviewed and approved by the Surrogate’s Court in the county where the deceased last resided. This process is called probate. When there is no will, the Surrogate’s court appoints an administrator or a personal representative to handle the affairs of the estate. Under intestacy, immediate relatives receive priority for the administrator role. In my next post, I will discuss the probate and administration processes.

Michelle Shagenov is a NY and NJ licensed attorney with a solo New York City based practice, focused on wills, trusts, estates, and guardianship.  For more information, please contact Michelle Shagenov at michelle@nyestateattorey.com or (347) 618-1454.

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