Category: Trust & Estates

With the winter holidays fast approaching, the thought of family festivities may be on your mind. In fact, it may be one of the only times that the entire family comes together. Some look at this as the ideal time to use the gatherings to deal with family business, including discussing estate planning. But you may question whether it’s the best or most appropriate time. Should you really discuss estate planning during the holidays?

Well, many legal experts agree that people should take advantage of the convenience of holiday get-togethers and talk about what they need to do about their estate. So, the answer to the question is a resounding “yes.” Read on to learn about how to discuss estate planning during the holidays.   

How to Start a Conversation About Estate Planning

Discussing after-life plans can be difficult at any time but can be especially daunting during the holidays because everyone is in a celebratory mood. However, there are guidelines and tips to follow to help get the ball rolling. Consider the following:

Thoroughly Prepare:

• Don’t go into this without conducting your research and understanding your needs, wants, and your assets. 
• Take inventory as to where you are in the estate planning process. Do you need to begin your estate plan? Do you have a plan already in place? Do you need to update your plan? 
• Take stock of any life changes that could prompt changes in your estate plan. 

Set the Agenda:

• Let the family know what you have in mind. Be clear, and don’t blindside them or make it a surprise; lay out the subject of the discussion. This way, everyone can prepare as needed. 
• Arrange for all adults who need to be present to be able to meet. If they can’t be there in person, use means like FaceTime or Zoom. Plan for children to be busy with other activities at this time. 
• Arrange to do something fun immediately after to lighten the mood.

Engage in the Meeting:

• Open up the conversation by discussing pop culture events, such as celebrity deaths. “We don’t want to be like the famous athlete/ actor/singer/rapper/influencer who died without a will.”
• Consider the desires of family members. Are their specific heirlooms that people want? How will this be balanced out? 
• Communicate effectively and with sympathetically. Try to be sensitive, remain calm and let everyone have a chance to express themselves. Be prepared for emotional responses.  

Relevant Issues

• Property: Typically, the most significant part of estate plans involves what happens to someone’s property when they pass away. Thus, it’s important to concentrate on this.  

• Financials: What happens to your financial accounts also needs to be addressed. Individuals can designate accounts/benefits (pensions, IRAs, stocks/bonds) through beneficiary designations.  

• Power of attorney: The two areas of concern are medical decisions and financial decisions. 

• Long-term care: What happens if you suffer an illness or injury and need a long-term care facility? You can use estate planning to anticipate this and prepare financially. 

Ask for Help from an Estate Planning Attorney 

Estate planning matters aren’t particularly easy to deal with, but the holiday season provides a welcome time to engage in necessary conversations. You can plan ahead and speak with an experienced New York attorney to express your intentions. MOWK Law attorneys are well-reversed when it comes to estate planning and are available to hear you. Contact us to learn more.

If you don’t have a will, the law determines what happens to your assets. This is referred to as “intestacy.” Here, your assets will pass to your heirs according to New York’s intestacy statutes. Sometimes this will be in sync with what you want, but sometimes it won’t. If your assets are subject to intestacy, the decision is taken out of your hands. To take control, many individuals choose to create a will. If you decide to execute a will, it may be just one part of the estate planning. You may also need a pour over will. 

What is a Pour Over Will?

A pour over will is one that is used in conjunction with a trust document. For instance, this will involve a living trust, which can at some point, develop into the main instrument for picking your fiduciaries and disposing of your assets.  

The Connection Between Living Trusts and Pour Over Wills 

Creating a living trust is a popular option for New Yorker residents to use to help avoid lengthy probate proceedings. The assets that are part of the trust are separate from personal assets and are passed directly to heirs, and therefore are shielded from probate. But any assets that aren’t transferred into the trust’s control may still have to go through court approval before they are disbursed to beneficiaries. Sometimes pour-over wills are used to capture these assets and can protect them if the assets weren’t transferred into the trust before you pass away.

What is the Difference Between a Pour Over Will and a Regular Will?

A regular will can allow the testator to do many things, including designating someone to make medical decisions in case of incapacitation or naming a guardian for children. One of the simplest things is that it states who gets an inheritance. However, pour over wills only involve one intended beneficiary- the living trust. 

There are intricacies that accompany using a living trust that can result in assets not always making it into the trust before the individual dies. When this happens, these assets that aren’t transferred into the trust are considered as personal property and will be subject to estate tax and the probate process.  

The purpose of the pour over will is to allow you to let the state know that you want any non-trust assets to be transferred into your living trust after you have passed away; you’re essentially directing your non-trust assets to “pour over” into the trust. 

Do I Need a Pour Over Will?

You might want a pour over will when you have both a living trust and a traditional will. While the will may be used to illuminate which heirs will get specific assets, if it doesn’t target assets to your trust, your heirs must wait for probate and pay fees and taxes before getting personal property.     

Interested in Pour Over Will Guidance? An Attorney can Help

Regardless of how carefully you watch your estate, there may be a risk that some assets won’t make it into your trust. A pour over instrument can remedy this by acting as a safeguard. Get help from one of our skilled estate planning MOWK Law attorneys who can help to ensure that your property is passed along as you have envisioned. Contact us for assistance with committing to your estate plans.

A life estate deed is a planning tool that is a part of your overall estate plan. With this type of deed, an individual can deed real estate to someone, but reserve a life estate, which means that they have the right to occupy the property until death. With death, the property will then pass to the beneficiaries. Read on for a breakdown of the life estate deed, so that you can decide if it’s a good option for you.

What’s a New York Life Estate Deed?

To understand how this works, it’s helpful to explain the parties involved. Multiple parties can own property simultaneously. The party that has an ownership interest in property for the duration of their life (life estate) is called a life tenant. They can use and possess the property and are responsible for the maintenance costs for as long as they live. 

After the life tenant dies, their ownership interest passes on to the other party, the remaindermen. While the life tenant can possess the property during their life, they are legally accountable to the remainderman and can’t sell or waste the property without the remaindermen’s permission. 

Benefits and Advantages of a Life Estate Deed

• The life tenant has the legal right to stay in the house for as long as they live.
• When the property is transferred, it immediately goes to the remaindermen without going through probate.
• The property receives an entity called a “stepped up basis” when it passes to the beneficiaries, which means that when the beneficiaries sell it, they would generally pay less in capital gain tax than if the property had been gifted to them during the property owner’s life. 
• Can help for Medicaid eligibility for the purposes of paying for nursing home care. Because there are limits to the amount of assets you can own, the deed can assist with getting property out of your name.

Life Estate Deed vs. Trust

With an eye toward protecting their home, a homeowner might wonder whether they should consider a life estate deed or create an irrevocable trust. A transfer of a deed into an irrevocable trust transfers the title of the property to the beneficiaries of the trust after the death of the trust creator. Similar to a deed with a life estate, the trust creator keeps the right to live in the house and is responsible for household expenses. 

Both options let you retain specific rights concerning the lifetime use of the property including tax benefits associated with ownership, such as enhanced star benefit, Veteran’s benefit, and capital gains exemptions. 

However, there are benefits that the trust offers that the life estate deed doesn’t have, including more flexibility. For instance, if a life estate deed needs to be transferred back to the property owner and they need to get the property back into their name. 

Get Help with a Life Estate Deed from a New York Attorney
Depending on your specific situation, a life estate deed may be a good fit for you. There may be reasons to consider this if you want to qualify for Medicaid to qualify for nursing home care. These laws are very complex and difficult to navigate. This is why you may want to talk to one of the MOWK Law New York estate planning attorneys who specialize in this subject area. Contact us right away to get started!

Whenever someone dies, it’s never easy. It’s especially difficult when your parent dies. Not only do you have to deal with the emotional fallout that stems from losing your oved one, but your parent leaves behind a life that needs to be closed out. As their child, much of this will be your responsibility. Here is a checklist of estate planning steps to take after your parent passes away.

Immediately After your Parent Dies

• Get a legal pronouncement of death: Obtaining the official declaration of death is the initial step to take to eventually get a death certificate. If your parent died in the hospital or at a nursing home or assisted living facility, the staff will be able to take care of this. However, if they died at home, you should get a health care professional to declare the death by calling 911 and have them transported to the hospital emergency room for the declaration. 

• Determine existing funeral and burial plans: In the best-case scenario, you’ve already had a discussion with your parent about their plans for a funeral, burial, or cremation. If not, then search to see if there was a pre-paid plan.  

A Few Days After 

• Make funeral, burial, or cremation arrangements: Research funeral prices to make the appropriate decisions. If your parent was in the military, contact the Veterans Administration to check if they offer special rates or benefits.  
• Secure the property: Lock up your loved one’s home and vehicle and valuables. 
• Provide care for pets: Ensure that the pets have temporary caretakers until a permanent situation is resolved. 
• Notify employer: Inquire about benefits, paychecks, and if there is a company-wide insurance policy. 

A Week or Two After Death

• Secure certified copies of death certificates: These will be necessary to close the bank and brokerage accounts, to file insurance claims, and to register the death with government agencies. 

• Determine if your parent had an estate plan: It will be easier to handle the estate if they already have an estate plan in place where they compiled all of the related documents in one location. Ideally, these documents will discuss how their property should be distributed. 

• Gather the important documents: If your parent dies without the necessary documents readily available, you will need to obtain them, including a birth and marriage certificate, social security card, tax returns, and other financial documents. Although it might be difficult, it’s a necessary part of the process. 

• Find the will if there is one: You and other survivors will want to know how your parent’s property, money, and other assets will be distributed. Hopefully, you have already discussed this with them before and that there is a will and you can get to it. 

• Handle life insurance issues: Because disputes may occur with insurance companies, it’s a good idea to be proactive and reduce the risks of possible disagreements. Usually, as long as a death certificate is delivered and you are an authorized life insurance recipient, the beneficiary will receive a check. 

• Contact the Necessary Government Organizations: Inform the appropriate agencies that are in charge of distributing benefits, such as the Social Security Administration or the Veteran’s Administration, if applicable. 

• Make a list of all assets: Probate is the process of executing a will and the process usually begins with an inventory of assets. 

Talk to a New York Estate Planning Lawyer

Nothing can fully prepare you for the challenges that arise when your parent dies. However, getting the assistance of a knowledgeable estate planning lawyer can help make the transition easier. Consider contacting an experienced MOWK Law estate planning attorney to plan your next move. 

The pandemic has a lot of people thinking about their estate planning. One of the issues that you may consider in this planning is whether you want to create a living trust in addition to a will or instead of a will. The decision is a very personal one and will depend on your specific needs. Read on to learn what you should know about when you’re thinking about a living trust. 

The Definitions 

A will is a written document that designates how your property will be distributed when you die. It is revocable, which means it can be canceled and changed at any time while you’re alive. If you have a will, it also allows you to appoint an executor, a guardian for your minor children, designate how to pay your taxes and forgive debts. 

A living trust (specifically, a revocable living trust) is a legal document that is created during an individual’s life where a named person (the trustee) is entrusted with managing the individual’s assets for the benefit of another person (the beneficiary). This serves the purpose of managing your assets (bank accounts, real estate, investments, vehicles, personal property) in a trust during your lifetime because often you’re the trustee; it is also setting up the management of your assets and estate after your death or incapacity with naming a successor trustee, who acts as your representative and transfers your assets to the beneficiary based on your wishes. The naming of a successor trustee is a key difference between a will and a living trust. 

What are the Advantages of a Living Trust?

There are several advantages when deciding whether or not to you should take the time to create a living trust.  Here are some of the reasons that some individuals favor them:

• Saving money on estate taxes
• Avoiding probate: This allows you to skip the court proceedings.
• Protecting your privacy: Since you’re avoiding probate, you can keep information from the public.

What are the Disadvantages of a Living Trust?

Like most things, there are some reasons why an individual might not want to get a living trust. Here are some key disadvantages to creating them:

• Limitations: No executors or guardians: A living trust doesn’t allow you to name an executor or a guardian for your children. 
• More expensive: Living trusts are typically more expensive to create compared to a will.
• More complex: Instead of merely having a witness, like you have for a will, a living trust requires signing it in front of a notary. 

Living Trusts and Wills 

Many people form a trust in addition to having a will, rather than as an alternative. An example of the way that these two documents work together is if you get a “pour-over will.” This type of instrument states that anything that’s not already in the trust should be included at the time of death. 

Get Help with Drafting Living Trusts and Wills from an Experienced Attorney

Although living trusts aren’t a must for everyone, they can certainly serve individuals well. The ideal estate plan is the one that works with your unique needs and fulfills your wishes. If you need help with drafting a living trust or a will, you should seek the services of MOWK Law Estate Planning attorneys who can help you get through the process smoothly. Contact us to get started with your specific plan.

The COVID-19 pandemic motivated many people contemplating their own mortality to take the important step of creating a will and other documents encompassed in a New York estate plan. This step helps ensure your wishes are known and followed; it also makes provisions for worst case scenarios. 

If you already had a plan in place, you may think you’re in the clear. However, even though you’ve done the heavy lifting, it’s still important to continue checking your beneficiary designation forms periodically and take steps to keep your estate plan in line with your current situation and wishes. 

What Are Beneficiary Designation Forms?

A Last Will and Testament may name beneficiaries for certain pieces of your estate upon your death, such as:

• Real estate
• Bank accounts
• Personal effects

However, it cannot designate your beneficiaries for a few other assets you may also possess. Instead, you must fill out separate forms, known as beneficiary designation forms, identifying who those assets pass to. For example, these designations are required for:

• Benefits from a life insurance policy
• Annuities
• Various retirement accounts

Because these designations override anything in the will contradicting them, it is critical this is done correctly and remains up to date.

Mistakes on Designation Forms

Estate planning professionals specialize in preparing and executing the documents you need to put your estate plan in place and keep it in line with your current situation and wishes. Though they prepare the documents you need to sign, you should always review every document and form – including beneficiary designation forms – yourself prior to signing to make sure they are correct and complete. The preparers are human, after all, so errors may inadvertently occur otherwise. 

Updating Forms After Life Changes and Family Changes

Many individuals satisfied that their estate plan is complete fall into the trap where they can forget about those documents. This means that the documents are woefully out of touch with the current individuals in their lives and life changes such as:

• Birth
• Death
• Marriage
• Divorce

Failing to update estate planning documents often ends with unintended consequences that go against what they truly wish to happen.

Not updating your beneficiary designation forms in a timely manner could mean your new granddaughter gets no benefits from your life insurance policy, as she wasn’t yet born when you designated beneficiaries. Assets could also end up in the hands of people you wouldn’t currently want as beneficiaries; your ex-spouse may enjoy inheriting your retirement account as the beneficiary you designated, but it’s doubtful you want them to have it after a bitter divorce. 

Speak to a New York Estate Lawyer

People should feel accomplished after they create and execute a comprehensive estate plan– it’s critical to make sure your wishes are carried out. However, just because you did this work doesn’t mean you can rest on your laurels forever – things change, and documents such as beneficiary designation forms must change with them to keep them aligned with your wishes. The experienced New York estate planning attorneys at MOWK Law can review your estate plan and help you update it so that is reflects your wishes in your current situation. Contact us today to learn more!

As COVID-19 continues to ravage the nation, it’s more important than ever to create an estate plan if you haven’t or update one that is outdated. Shockingly, just a few years ago close to 72 percent of Americans had either no will or an out-of-date one. Especially in the current climate, it’s important to prepare for worst case scenarios, create protections for your loved ones, and even benefit you while you’re still alive. Though New Yorkers are often more familiar with a last will and testament to pass assets to beneficiaries, trusts often provide more benefits and still accomplish the same purpose behind creating a will. 

What is a Trust?

Living trusts are legal constructs that can be alternatives to a will, creating a way to move assets of an estate over to beneficiaries. They can be irrevocable or revocable, but the bottom line is they are often advantageous for tax purposes and keep assets in the trust out of probate and away from prying eyes.

Benefits of Creating a Trust in New York

Avoiding Probate

Wills require that every asset listed in them move through a probate court upon the creator’s death. Probate can be costly, often drag on for months or even years, and their speed is largely dependent upon how many matters the court must decide on as the process progresses. Assets placed in trusts, however, allow you to skip this process and pass the assets inside to their intended beneficiaries more quickly.

Privacy Considerations

Probate is a court-administered process, which means that all documents pertaining to the will – the creator’s assets, accountings, records of their income, gains and losses – are entered into the public records and can be located by anyone curious about the proceedings. Trusts allow you to keep your estate’s details away from prying eyes, and can save beneficiaries from potential burglaries and scam attempts by criminals who could otherwise find out through public records that your son just inherited $3 million dollars from your estate through your will. 

Planning Ahead

Wills are designed to be utilized upon your death – they serve to give you security that your beneficiaries will receive the assets you designated for them at the time the will is made. Only you can change your will. However, people often lose mental faculties or become incapacitated in advanced age. Trusts, on the other hand, allow you to designate a successor trustee should you be unable to continue managing your trust. They will have the duty to see the trust is managed as you intended. 

Speak to a New York Estate Lawyer

Especially in the world today, it’s important that you have a plan for your estate. Trusts are often the best plan to do so; however, trusts can be complicated, and there are a number of different types. One may be more beneficial to accomplish your wishes. The talented New York trust and estate attorneys at MOWK Law can help you review your goals, answer your questions, find a plan that gives your estate maximum protection, and create the necessary documents for you. Contact us today to learn more!

The ongoing pandemic has caused many people to start thinking about putting their affairs in order if they did not already have an estate plan in place. There is no better time than now to get your estate plan together and up to date. As people move to finalize documents they may have avoided signing previously or start the process of planning, creative solutions are emerging to get necessary estate planning documents executed in creative ways to stay safe during the coronavirus.

Remote Estate Planning 

Thanks to MOWK Law attorneys working remotely, it’s still possible to create, change, or finalize an estate plan without physically meeting with an attorney. Phone calls, emails, delivery services, and video conferencing can be utilized to draw up a plan, exchange documents for review, or deliver documents. Keep in mind that there are a lot of estate planning tools that you and your loved ones can benefit from now.

Whether you have an estate plan that needs updating or you have never put anything formal together, we are here and available to make sure your wishes are executed.

Remote Notarization in New York

Currently, Governor Cuomo has an executive order in place in certain situations permitting notarization to take place using audio-video technology rather than physical appearance between the necessary parties. The current requirements for the document signer and Notary are as follows:

• If the Notary doesn’t personally know the signer, must see a valid ID over video conference
• There must be direct interaction over video conference between signer and Notary
• The signer must affirmatively represent they are physically in the State of New York
• The signer must fax or email a legal copy of the signed document to the Notary the same day it’s signed
• After notarizing the document, the Notary may transmit the document back to the signer

It’s a good idea to consult with a skilled estate lawyer to understand if your documents need to be notarized and how best to complete the process if it is necessary for your particular estate plan.

Speak to a New York Estate Lawyer

Though contemplating worst-case scenarios and getting your estate in order is often not the most heartwarming situation to consider, it’s important that you have a plan for your estate to keep it from passing through probate and ensure your wishes are carried out promptly. Our talented trust and estate attorneys at MOWK Law can help you make the best decision and come up with a plan that gives your estate maximum protection. Contact us today to learn more!

When planning your estate there is a choice to be made between writing a will and creating a trust. While a will transfers assets to heirs at death, trusts operate differently. The grantor typically appoints themselves the trustee and retains control of the trust during the remainder of their life. Though living trusts have become popular, many people may not realize the general benefits of establishing a living trust.

Saving on Estate Taxes

For married couples with more than a $5.5 million dollar estate (the “cliff” in New York for wealthy estates where tax is paid on the entire estate), a living trust can be created for each spouse and allow the couple to pass $11 million state and federal tax free to their heirs rather than just $5.5 million. That’s a big difference in savings for your loved ones! A single person can pass $5.5 million in a living trust free of State estate taxes, as well.

Added Privacy by Avoiding Probate

Unlike a will, which goes through probate and becomes public record, a trust is not revealed to the public because it bypasses the public probate court. This means your assets, the trust specifics, and your beneficiaries remain private and your assets go directly to beneficiaries upon your death without distribution delay. Trusts are also more difficult to contest than a will, so there is less chance your trust will become public record due to the actions of a disgruntled heir attacking your estate plan.

Children from Earlier Marriages are Protected

You can specify under the terms of your living trust that both your children from a previous marriage as well as your surviving spouse can receive protection and fair treatment.

Guardianship Proceedings Will Be Avoided

In the event you are unable to manage your estate or become disabled, your living trust keeps you from needing a court-mandated guardianship for the assets in the trust. Whomever you have named as the successor trustee will seamlessly step in without government interference or unnecessary expense to manage your affairs.

You Can Control How Your Estate is Managed and Spent Even After Death

Your living trust can be structured to provide for the education, care, and support of children or grandchildren by designating an age when assets are turned over to them. You can even designate that life insurance proceeds be paid into the trust so the successor trustee can manage them for the benefit of your family members.

There are many upsides to establishing a trust as opposed to a traditional will. However, the most important thing is you have a plan for your estate to keep it from passing through probate. Our talented trust and estate attorneys at MOWK Law can help you make the best decision and come up with a plan that carries out your wishes and gives your estate maximum protection. Contact us today to learn more!

When someone in New York dies without creating a will, protocols and laws exist that dictate what happens to their assets. Under the doctrine of intestate succession, a decedent’s assets that would have ordinarily passed through a will are then given to their closest living relatives.

Scope of Assets Affected by Intestate Succession

Usually, intestate succession only applies to assets owned by the decedent in their name alone. Also, many assets are not passed through a will and are unaffected by laws of intestacy, including:

• Proceeds of a life insurance policy;
• Payable-on-death bank accounts;
• Property the decedent transferred into a living trust;
• Funds held in a 401(k) or IRA;
• Securities placed and held in a transfer-on-death account; and
• Property the decedent owns with another in tenancy by the entirety or joint tenancy.

Whether or not the decedent has made a will, these assets will pass to their named beneficiary or to a property’s surviving co-owner.

Intestate Succession Recipients

In New York, assets are doled out based upon the surviving relatives a decedent has. Children, parents, siblings, and spouses are the most common recipients of assets through intestacy, but others may also inherit.

Some cases are straightforward – when a sole, close category of family exists. For example, when there are children but no spouse, the children inherit everything and vice versa. If the decedent has no spouse or descendants but surviving parents, then they inherit everything. If no spouse, descendants, or parents exists but the decedent had siblings, then they will receive all the intestate assets.

Spousal and Child Intestate Succession

In cases where the decedent has both a surviving spouse and descendants, the assets are split. The spousal share depends upon whether decedent has living descendants like children, grandchildren, or great grandchildren. If so, the spouse inherits the first $50,000 of the intestate property plus half the remaining balance while the rest is split among the descendants.

If the decedent has no will but has children, in New York they will receive an intestate share. The size of each child’s share is dependent upon the number of children decedent has and whether the decedent also has a spouse. To inherit, the children must also legally be considered children by the state of New York. Though for many people this is not at issue, confusion may arise when the decedent has:

• Stepchildren;
• Foster children;
• Adopted children;
• Children born out of marriage;
• Posthumous children; and
• Grandchildren.

Situations, where these individuals exist and are potentially posed to inherit, can become complex and tricky, so consulting an attorney experienced in New York estate law is advisable.

When a Decedent Has No Family

Dying with no will and without any family is a rare occurrence. This is because New York estate laws are designed to ensure a decedent’s property passes to anyone even remotely related to them, such as a:

• Child;
• Grandchild;
• Spouse;
• Sibling;
• Niece or nephew;
• Great niece or great nephew; or
• Cousin.

If the decedent truly leaves no family members behind, all their property will be forfeit (or “escheat”) to New York State. This is one reason it is so important to understand estate law issues and ensure decisions are discussed with a New York estate attorney and decisions made to avoid this outcome.

New York Estate Planning Law Firm

At MOWK Law, we are here to help you will all your New York wills, trusts and other estate planning needs. The time to plan is now—get in touch with us today to start or revise your estate plan.