Articles Posted in Wills, Estates, and Trusts

What happens at your death is psychologically difficult for many of us to deal with. There are almost always more pressing issues than planning for what will happen when you die. A majority of people die without a will. This means that there is no clear message to the family about what a person’s assets are, where those assets are located, what should happen them, and what arrangements that person has made for his or her body or funeral.

In New York State, a will is a legal document witnessed by at least two people who are not “interested” in the assets of the person who is signing the will. The will sets forth how the assets (no matter how small) will be distributed by the person designated to gather and distribute them (the Executor) upon death. If you do not have a will when you die then you allow New York State to decide who gets what, without regard to your wishes or your heirs’ needs, through the laws of “intestacy.” In today’s world of blended families, long lost cousins, and global assets, it is advisable to think about, organize and have an attorney draw up your will.

Making a will is especially important if you are parents of young children because you will want to designate who will have guardianship of the children. You may consider separating the physical guardianship of the children from the guardianship of the money intended for those children. Obviously, depending upon your assets, you can make many different provisions for your family, including attempting to protect your assets from Medicaid and estate tax.

In this age of ultra-competitive, make a buck at any price advisers, we have lost our focus upon what a good “fiduciary” should be providing to their real estate, mortgage, estate, insurance and other types of recommendations. What is it that you should expect from your broker or salesman when they sell you that insurance policy, annuity, or mortgage?

Well, it depends upon the type of the relationship, but here is an interesting article that provides a “stop gap” or screening device for consumers to ask their money managers, their attorneys, their mortgage brokers, here in New York and all over the country.

The Bottom Line– you should expect that the person selling you products has your best interest in mind (not their profits).

I get calls every week from family members concerned that another family member might be abusing a power of attorney issued by an elderly or infirm client. We take these concerned calls very seriously, as did the New York State Legislature, who recently amended the General Obligations Law relating to Powers of Attorney. There are some traps for the unwary signer, however.

New York’s new power of attorney law contains language that “automatically” revokes old powers of attorney, unless you specifically state that it does NOT. If you are asked to sign a new Power of Attorney in New York after September 2009, think long and hard about the effect of signing such form. For example, if you are a recording artist, did you sign an agency agreement; a real estate partner, a power to the managing partner; a life insurance recipient, a right to such benefits. If so, you should be careful not to revoke any old powers of attorney.

Bottom Line– You need to be educated to be smart. Ask your attorney what the effect will be if you sign a Power of Attorney.

The New York State Supreme Court (Shafer, J) reiterates that to sue an attorney for malpractice arising out of alleged negligent will preparation there must be an attorney client relationship before the beneficiaries may sue for legal malpractice in New York. That is, there must be “privity” of contract between the attorney and her client before the client has standing to sue for legal malpractice. For a complete copy of the recent decision Leff v Fulbright & Jaworski, LLP.

Beneficiaries of wills who get less than they think they are due often call us to determine if they have any claims against the attorney. The answer in New York State tends to be who, if anyone, may sue for legal malpractice when attorneys make mistakes planning estates.

As upheld by this Court, New York is one of the few states which recognizes the “doctrine of privity,” meaning that, when the decedent died, she may be the only one who could have sued the attorney for screwing up the estate plan. This rule is relaxed in the presence of “fraud,

Why do so few people choose to control the disposition of their own estates after they die? Perhaps you fear death, you procrastinate, you are too lazy to think about your death, or you think that a will is unnecessary or too expensive. Why haven’t you e-mailed your lawyer, called your closing attorney, or actively engaged in executing a will? What is holding you back?

There is a debate among various elder law attorneys and marketing professionals about why New Yorkers and fellow Americans do not see their local attorney to prepare or revise their Last Will and Testament. Did you know that more people die without a will than with one!!

There are two givens in life– death and taxes. So, why not control what happens in death through the execution and preparation of a Will? Do you really want the New York State Legislature to dictate where your personal belongings go after you die? The truth is that all people in New York State are empowered to execute a Will to override the rules relating to “intestacy” (where your stuff goes if you don’t have a Will).

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