Estate Planning FAQs

What is New York State probate?

Technically, "probate" is the official procedure for establishing the validity of a Last Will & Testament, after which, probate is the following of the instructions in the will to distribute property to the devisees and legatees, to pay debts and to pay taxes.

SIMPLY PUT- PROBATE IS THE PUBLIC, FORMAL, LENGTHY, EXPENSIVE, COURT-SUPERVISED PROCESS OF CHANGING OWNERSHIP OF YOUR PROPERTY TO THE NEXT GENERATION, PAYING YOUR BILLS AND SELLING YOUR STUFF.

NUMEROUS STEPS AND HEARINGS ARE REQUIRED BY NEW YORK STATE LAW TO PROBATE A WILL.

In New York, is a will all I need?

No, a will by itself will not avoid probate. A will only comes into effect when you die, so you do not have protections while you are alive. A will does decide who gets what and how much but not when and under what conditions. Also because a will by its nature must be probated- it is public. With a will you cannot put conditions on your distributions like with a trust. For example, money given to minors will be held in trust by the court and given in a lumpsum upon distribution.

In New York, what can I put into trust?

You can put your home and other real estate, your savings accounts, CDs, checking accounts, non-retirement investment accounts, stocks and bonds.

In New York, how can I pick a guardian?

Think of what values are most important to you and your child's physical, spiritual, mental and emotional well being based on their age, gender, likes and dislikes. Think of if you want a single individual or a couple. Think of the potential guardian's physical and mental well being, religious beliefs, political affiliations, family stability, importance of higher education.

When it comes to estate planning what is the best advice for parents with minor children?

Get started! As a parent, protecting your minor child is always top of mind, and even more so now that we have lived through a pandemic. The Law Office of Melissa L. Carvajal, P.C. is here to help you safeguard the future for you and your minor child. Having an up-to-date estate plan can be the first step toward providing certainty in an uncertain world. Many people view estate planning as limited to making arrangements for your death. However, it is equally important to plan for a time when you may still be alive but unable to care for yourself or your minor children. The inability to make decisions or care for oneself or a minor child is often referred to as incapacity. Providing for your minor child’s care and financial security is an important undertaking with many important questions to consider. As a parent you need to addressing the financial needs of you and your minor child and who will care for your minor child if you were incapacitated (think car accident, workplace accident or random act of violence).

Will my kids automatically inherit from me if I die?

Yes, it's true that your children will inherit your assets upon your passing. But without advance planning, a court gets to decide who manages their money and who will raise them. You probably have thoughts of who you would want caring for your kids if something happened to you. But if you don’t put your plans on paper, the final decision of who will care for your kids, raise them, and manage their money if you die or become incapacitated is left up to a judge who doesn’t know them or your family.

Can planning wait?

No, unfortunately in the blink of an eye your life can change for the worst. You will need someone to step up and make decisions for you. Protect your choices by planning now. Planning is not simply for the end of life decisions, unfortunately accidents and health crisis' can come at any time. You need to plan for any time you may be incapacitated due to injury or accident. You want someone to be able to make health and financial decisions for you if you cannot. A health care proxy, power of attorney and guardianship (of your children) should all be in place during your life regardless of your age.

As a parent with minor children in Long Island, New York is a will enough?

NO. There are important legal steps that you MUST take as a parent. People call me all the time and say, “I need a will.” A will isn’t enough. While a will is an important legal document, it is a good way to get started because you can name guardians for your kids and say how you want your money to pass. A will is NOT going to be there in the immediate term if something were to happen to you. A will is NOT enough if you have minor children. Every parent really needs a comprehensive kids protection plan. No matter how much money you have, whether it’s $100 or $1,000,000, you have to name legal guardians for your children. Having long term guardians named in your will is good but you also need to name short-term guardians. What happens if you are just in an accident? Your will is not in effect. You need short-term guardians- People your kids know and trust, that are local. If someone does not have legal authority to stay with your kids (a family member or neighbor), child protective services will be called in and that is a terrible outcome for even one night. Remember your will only comes into effect when you die. You need to think about what will happen if you are just incapacitated, even temporarily (car accident, workplace accident, random act of violence). With regards to your finances, a will is not enough. Leaving your assets through a will means your family will have to go through and expensive, long, public court process. The only way to avoid that is to put your assets through a trust. Most people think of a trust is something rich people have but if you want to leave anything to your kids, you want to pass it through a trust. The trust is basically just a set of instructions of who you want to take care of things and how you want things taken care of. Estate Planning is a gift to the people you love the most.

I just got a divorce. Does that automatically stop my ex from inheriting from me?

No. If your ex is still named as a beneficiary on your retirement or life insurance, they will receive those funds if you die. If you’re divorced, you probably aren’t looking to leave your ex-spouse an inheritance. Don’t forget to update your estate plan and all of your financial accounts 💲 with new beneficiaries ASAP or you risk leaving your assets to your ex!

Do my child’s grandparents or babysitters, automatically have authority to care for my child?

No, your child’s regular caregivers, like grandparents or babysitters, do NOT automatically have authority to care for your child in an emergency. Whether you are unconscious in the hospital or have passed away, no one has the authority to make decisions for your child but you - unless you’ve granted that authority to the people you trust ahead of time. If you haven't, then the decision of who will care for your child is up to a judge who doesn't know you or your family dynamics.

What is a Power of Attorney?

Generally speaking, a power of attorney is a legal document granting someone else the authority to act on your behalf regarding your financial life. The term "power of attorney" is a bit of a historical holdover. Originally, powers of attorney were primarily used to appoint lawyers to represent individuals in legal matters. However, over time, the concept has expanded to include appointing someone to act on your behalf for various purposes.

So, while you don't need to be an attorney to hold a power of attorney, the term has continued due to its historical origins. Granting power of attorney is a way to indicate that an appointed person has the authority to act as your agent or representative, similar to the way an attorney would act on your behalf.

Planning with Minor Children FAQs

Should I put my kids as beneficiaries on my life insurance?

No, If you have minor kids, don’t name them as primary or secondary beneficiaries on your life insurance. Why? If your children are minors at the time they inherit these assets, the court will appoint a property guardian (the role of this person is to “watch over” a minor person’s money). This process will require attorneys’ fees, court proceedings, supervision from the court, and will generally limit investment options -- all costs and delays that will not help your children, but rather cost them a significant percentage of their inheritance. Another downside: Whatever’s left when the child becomes an adult (at age 18) will be handed over, without any guidance or boundaries. This can impact college financial aid opportunities and most likely cause irresponsible spending that most parents would never intend. Creating a revocable living trust will allow you to designate how much and when your children receive a life insurance payout. If you have any questions about how to leave assets to your minor children -- whether it is a life insurance policy, a retirement account, or any other asset -- contact The Law Office of Melissa L. Carvajal, P.C. at (631) 371-3861 today. I can explain the options available to your family, determine what tax implications will result, and advise you on the best structure that will protect your family’s needs.

If I am a stay at home mom, do I need an estate plan?

Yes, Estate planning is about more than just passing along your money and property. An estate plan allows you the opportunity to designate who will handle your financial affairs and medical decisions if you cannot. Your significant other does not automatically have such authority. Without a power of attorney naming a person to handle your financial affairs and a health care proxy naming a person to make medical decisions for you when you cannot, a judge will choose someone to make these decisions for you. An estate plan also allows you to designate who will care for your minor children in the event you cannot. To ensure that the person who is making decisions on your behalf or for your children is the one you want, you need properly executed, legally binding estate planning documents. Without these documents, a judge will choose the person responsible for raising your child, and the judge will not have the same level of background information about that person that you do. This person could be the last person you want, but they could make the best showing in front of a judge.

If I am a stay-at-home parent, do I need a financial or estate plan since I do not earn an income?

Yes, While most people think about trying to replace lost income in the event that a parent or significant other dies, a stay-at-home parent’s contributions should not be overlooked. If the stay-at-home parent dies, who will do all of the tasks that they normally complete? One option would be to hire someone to watch the children, cook the meals, and clean the home, but the surviving parent would need to have the funds to pay that person. On the other hand, the surviving parent may decide that they need to step away from their job or scale down the amount of time they work so they can perform all of the stay-at-home parent’s responsibilities. Either option would be more feasible if the family had access to an adequate amount of life insurance proceeds to fund these and other future needs. It is also important to protect the insurance proceeds to make sure that they are available to the family and do not end up in the hands of a new spouse, creditor, or scam artist.

Is New York estate planning only for the rich?

No. Anyone who has survived to age eighteen and beyond has likely accumulated a few possessions that are of some monetary or sentimental value. If you have a home, car, and financial accounts you need to plan. If you have children, then you need to plan. It does not matter if you $100 or $1 million. There is no minimum asset value required to justify having a Will. Being a parent or owning anything requires planning. More importantly, estate planning isn’t just about where your “stuff” goes when you die. It is vital that you work with an actual estate planning attorney and not an attorney who one day writes a will and the next day does a personal injury claim. Your estate plan has to include incapacity planning- what will happen to you when you are in an accident or have a medical emergency where you are temporarily incapacitated?

Is New York estate planning only for the elderly?

No. Tragedy or a medical emergency can strike at any moment, and it is best to have your affairs in order so as not to put your loved ones in a financial or bureaucratic bind while they are grieving. Young parents should ensure that proper guardians are in place to take care of their children if they are no longer around, or your children could end up with the most irresponsible member of the family or, worse, a complete stranger. Parents with minor children NEED to plan.

Is New York estate planning simply getting a Will?

No. Having a Will is smart because it puts you in charge of the disposition of your “stuff.” A Will allows you to pick your executor, designate the guardians for your minor children, and name any individuals and charitable organizations as beneficiaries of your estate. If you were to die without a Will (i.e., intestate), New York State law decided who gets what part of your estate, who administers your estate, and who takes care of your children. However, a Will is only one tool in the estate planning toolbox. There are other vehicles that allow you to remain in control of your possessions and family’s future during life and upon death. Depending on your situation, a Will alone may not be the most efficient or the most cost-effective means to achieve your goals. Upon your passing, your Will has to go through probate – a process whereby a court reviews your Will and determines its validity. It is a lengthy and often costly process in New York and can become even lengthier if a Will is contested (e.g., on the grounds that someone coerced or cajoled their way into an inheritance). The delay in the disposition of your assets and the accompanying legal costs may put your family members in financial straits. If your goal is to ensure that your survivors’ cash flow is uninterrupted after your death, it would be wise to incorporate a trust or a life insurance policy into your estate plan. These assets are considered “non-probate” – they pass outside of your Will and the probate process. There are other non-probate assets that may constitute a part of your estate. For example, a joint tenancy arrangement on your home, IRA, and payable-on-death (POD) or transfer-on-death (TOD) accounts designate specific beneficiaries upon your death, and the assets pass to them without the delay and cost of the probate process. If your Will provides for a different beneficiary of your IRA account or another non-probate asset, it will be superseded by the beneficiary designation form on file with that account’s or asset’s administrator. Therefore, it is wise to review all of your beneficiary designations periodically, but certainly upon life-altering events like marriage, birth of a child, or divorce. Again a will only comes into effect when you die. It is critically important that you plan for yourself and your loved ones while you are alive. You need to have a plan for if/ when you are temporarily or permanently incapacitated.

In New York if my child is on my insurance, do I have access to his medical information?

Unfortunately, No. Just because your child is on your health insurance does not mean you will have access to his/her medical information. The doctor’s office or hospital is only allowed to disclose information to those individuals that the patient has authorized. You may be able to get some information from the insurance company but it could be limited and there may be a delay.

Is New York, my child just turned 18 and will be heading to college in the fall, what do I need to d

For a young adult going to college, I recommend having the following documents prepared, at a minimum: Financial Power of Attorney, Health Care Proxy with HIPAA Authorization. During the client meeting, we can also discuss additional tools that might be appropriate for the next chapter.

When do my children need to get their own estate plan?

Once a child attains the age of 18, he/she is legally an adult and must make his/her own health care, financial, and legal decisions. Without legal documentation, parents are powerless to act on behalf of their adult children. Of course, an 18-year-old’s estate plan is very different from a 48-year-old’s estate plan because life, assets, goals, and family situations evolve over 30 years, [but some basics are the same].

How can you encourage your loved ones to create an estate plan??

(1) Be sensitive to your loved ones’ feelings. Put yourself in their shoes and keep in mind that few people are eager to dwell on the subject of their own death. One way to begin the conversation is to talk first about the need to plan for an illness and to provide instructions in the event they become too ill to communicate with doctors or handle financial matters for themselves. The conversation can then progress naturally to the importance of having an estate plan that will transfer their money and property in the way that they wish, provide for the care of any dependents or pets, and minimize any taxes, court costs, and legal fees. Communicate that you are not trying to control their decisions but only want to ensure that their own wishes regarding their medical care and property are known—and that all of their instructions are in writing to guarantee that they are carried out; (2) Involve others in the conversation. If you are planning to speak to your parents about the need for an estate plan, try to include any siblings in the discussion to avoid giving the impression that you are attempting to influence or control your parents’ choices. You and your siblings should emphasize to your parents that none of you is asking about what you will inherit, but rather just want to make sure that their wishes are carried out if they become ill or pass away. Your parents will be happy to see that there won’t be conflict; (3) Consult an estate planning attorney. An experienced estate planning attorney can help you and your loved ones create an estate plan tailored to meet each of your unique needs and carry out your wishes, or they can assist with updating an existing estate plan. We can provide each person with guidance and information about the options available to them. Further, we can help each of you put a plan in place that will prevent unnecessary stress, legal expenses, and taxes, as well as uneven inheritances, disputes among loved ones, and delays in passing life savings on to them. In addition, the guidance we offer will give you and your loved ones the peace of mind that comes with knowing that plans are in place for your care if any of you become ill and that your wishes will be honored when you pass away.

What will happen to my vacation property at my death?

The fate of your vacation property at your death largely depends on how it is currently owned. If you own the property with another person as joint tenants with rights of survivorship or with a spouse as tenants by the entirety, your interest will automatically transfer to the remaining owner without court involvement. If a trust or limited liability company owns your vacation property, the entity will continue to own the property after your death. The trust instrument or operating agreement may lay out additional instructions about what will happen at your death.

In New York, why shouldn’t I use legal zoom or a lawyer who charges a couple hundred dollars?

While it is true that online document services exist and are cheap and there are other lawyers who charge a few hundred dollars for a will, if you get a will in that way, it is highly unlikely to achieve your objectives. If you want to keep your family out of court and free from conflict when you die, that will not happen with a cheap will. If you want to keep your loved ones out of conflict in the event you become incapacitated, that will not happen with a will. It is unlikely you will be able to keep your children’s inheritance safe from creditors or divorce. And if you have minor children it is not going ensure they do not end up in the care of strangers. If you want to keep your loved ones out of court and out of conflict in the event you become incapacitated or when you die, you need an attorney that will take the time to review all your objectives, your goals, what is important to you and what worries you the most. If you don’t have an attorney that will help you protect your minor kids, they will end up with strangers, even if its just for one night. If you don’t have an attorney that keeps in touch with you, then the chances are the plan you create now will not work for you and your family when it comes time to use it. You want to make informed, educated, empowered decisions for yourself and the people you love with an actual attorney you maintain a relationship with.

In New York, what is the first thing I should do when a family member dies?

It is important to contact an experienced estate planning attorney to help you with probate or trust settlement and/or administration, as well as any other legal matters that may arise during this difficult and emotional time. Our goal is to provide you with peace of mind by guiding you through the administration and settlement of your family member’s trust or estate, so please call The Law Office of Melissa L. Carvajal, P.C. (631) 371-3861 as soon as you can. You can also get a free Checklist of Initial Responsibilities and Legal Considerations to Keep in Mind her on my website at https://carvajallawfirm.com/free-downloads

In New York, does my spouse make my financial and medical decisions for me if I am incapacitated?

No, if you become incapacitated and have not legally granted your spouse permission to make financial or medical decisions for you through a power of attorney and/ or health care proxy, they may have to petition the court to be appointed your legal guardian, even if you are married.

If I started my estate plan but didn't finish it, will New York still honor it?

The law won’t recognize your estate plan until it’s signed and done. So until your estate plan is finished, you need to proactively name your spouse as your primary beneficiary on your retirement and insurance accounts, and then name at least one contingent, or alternate, beneficiary to receive the funds in case your spouse dies with or before you.

How can I prepare my family to talk about money and inheritance without nagging them?

Rather than discussing money for the first time while the family is gathered around the TV watching football, approach the topic weeks ahead of time if possible. Casually mentioning that it’s on your mind will help plant the seed for a future convo with your loved ones and get them thinking about their plan (or lack of one). Having your family together for the holidays makes it a great time to talk about money, inheritance, or creating a plan for your whole family’s wealth. 💰👪 But asking your relatives how they want their assets handled when they die or if they become incapacitated might not go over well while opening presents or carving a turkey. 😣 Keep your family from feeling blindsided by the conversation, read blog "How to talk Estate Planning with your Family over the Holidays."

Is estate planning more important for couples who have been married for a long time?

Dying without a plan in place can have worse ramifications for a newly married couple than a couple that has been married for a long time. You might think that estate planning becomes more important the longer you’re married, but this isn’t necessarily true. As a newly married couple, the wishes you and your spouse have for your medical care, assets, and family are likely unfamiliar to your loved ones - and maybe even yourselves! If you die or become incapacitated in the first few years of marriage and don’t have your wishes documented, your families are more likely to end up in a long and contentious court battle.

Should I use the legal insurance my work offers to create an estate plan?

Group legal insurance plans usually cover estate planning, but the plan you’ll receive is similar to what you could create yourself online and not a customized, well-counseled plan that will be sure to work when your family needs it. Affordable premiums and the promise of free legal services is tempting - but don’t be fooled. The kind of estate plans offered through group legal insurance plans generally include the bare minimum for your family and don’t consider your family’s unique circumstances and needs. Instead of saving you money, an estate plan created through a group legal insurance claim could cost your family far more than a customized plan would have and is likely to leave your loved ones with a big mess.

Will my Group Legal Insurance plan cover changes to my estate plan as my life changes?

You may be covered to create a will once a year, but you won’t be covered if you need to update your estate plan mid-year if circumstances change or someone dies. You may also only have certain coverage that will not cover life changes that need to be reflected in your estate plan.

In New York, does a Will accomplish the same things as a trust but just cost less?

No. While both a will and a trust both can give instructions about how you want your property to be distributed upon your death, one of the biggest differences between a will and a trust is that a will has no effect until the time of your death. A trust, on the other hand, can be utilized to deal with a period of incapacity (a time where you cannot make or communicate your wishes- even temporarily – think car accident or slip and fall that puts you in the hospital or rehab) that may occur prior to your death, which can be very helpful for loved ones trying to care for you. For example, Son wants to sell Mom’s home to help pay for the cost of an assisted living facility for her. If Mom only has a will, then Son has no power to sell the home and must go to court to be given the authority to act on Mom’s behalf. This situation might be avoided if Son was named as an agent under Mom’s financial power of attorney but relying on this as the only method can sometimes be problematic. On the other hand, if Mom’s home was owned by her trust, then Son, acting as successor trustee, would have the power and authority to sell Mom’s home without court intervention. In addition, a will guarantees that your loved ones must go through the court process called “probate” upon your death. Probate is usually more expensive than having a trust drafted and also has additional layers of taking a long time and dealing with creditors. Administering a trust does NOT require court intervention and it does not have to be a lengthy process. The Law Office of Melissa L. Carvajal, P.C. will ensure that you have a specially tailored plan in place with carefully chosen trusted decision makers. The Law Office of Melissa L. Carvajal, P.C. can help you create or update your plan to ensure that it will work as you intend when the time comes. Call (631) 371-3861 to schedule a consultation.

In New York, if something happens to me, do my child's Godparents have the right to make decisions?

No, in New York State, while godparents can hold a significant place in your child’s life, they don’t possess the legal authority to make critical decisions for your child. The responsibilities of a legal guardian encompass every area of your child’s life that you would normally manage as a parent. If you become incapacitated or die, and you have not legally nominated a guardian there could be a complex and expensive custody dispute among your family members.

ATTORNEY ADVERTISING - Prior results do not guarantee a similar outcome. This website is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their legal issues.

Licensed in New York.