Estate Planning & Elder Law Frequently Asked Questions

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A Living Will and a Last Will and Testament are two completely different legal documents. A Living Will is the legal document used by a person to memorialize in writing what medical procedures he or she wants or does not want to have performed in order to extend life in the event that the person is suffering from a medical condition for which there is little or no chance of recovery. It is used as a guide for the person that you name as your health care agent to make health care and medical decisions for you.

A Health Care Proxy is the legal document used by a person to appoint a health care agent to make health care decisions on their behalf when, but only when, they are unable to make health care decisions on their own.

No. A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It can also be referred to as an advance directive, health care directive, or a physician’s directive. It is important to have a living will as it informs your health care providers and your family about your desires for medical treatment in the event you are not able to speak for yourself.

A Power of Attorney for Health Care (“Health Care Proxy”) appoints an agent to make most decisions related to your health care if and when you are unable to make those decisions yourself. If you specifically grant the power, your agent can decide to admit you to a nursing home or community-based residential facility, and make other health care decisions.

If you have both a Living Will and a Power of Attorney for Health Care, the Power of Attorney for Health Care controls if there is any conflict between the two documents.

You should review your documents with an elder law attorney periodically to make sure that they are up to date.

A General Durable Power of Attorney is the legal document used by a person to designate another person as their agent to act on their behalf in just about any matter other than making health care decisions. The document can be drawn up so as to make it operative as of the time of its execution or to take effect upon the occurrence of a future event such as a signed statement by the person’s doctor stating that he or she is not competent to manage his or her own business affairs. The fact that it is “durable” means that it will continue to be in full force and effect even after the person that executes it becomes incompetent.

The Family Health Care Decisions Act allows family members or close friends to make medical care decisions for loved ones who are no longer able to make their own decisions due to lack of capacity. This replaces the old laws that used to force doctors to provide aggressive life-sustaining treatment to patients whose wishes were unknown because there wasn’t a living will or health care proxy in place. Many times, doctors would make decisions, which resulted in an extraordinary burden of suffering for a patient even when the family objected to such treatment. This new law has been debated for 18 years and is intended to overcome the limitations of the court-developed “clear and convincing evidence” requirement. New York was one of the last two states in the country without a similar law.

In order for this law to be triggered, health care practitioners first need to determine whether or not a patient has a decision-making capacity. If the patient lacks capacity, the legislation requires the selection of a surrogate from a list of individuals ranked in order of priority, including spouse, domestic partners, children or close friends.

To prevent inappropriate decisions, the law has numerous safeguards. These safeguards include procedures for a patient’s family members, or a physician to assert objections to the selection of a surrogate or to a decision made by the surrogate.

It is still important to have a living will and a health care proxy in place to avoid any misunderstandings with your loved ones. It is important to work with an experienced elder law attorney to help create the proper documents, before it is too late.

It is never too early to start planning because you never know when you may need a long-term care policy in place.

With a policy, you will be able to have a professional plan for your care at home and provide all types of custodial services related to your particular sickness, illness, injury, or condition. In addition to that, your family can be involved and part of the care plan, but they will not have to be the care managers. This takes some extra stress off of them.

Secondly, with a long-term care policy, you and your spouse will have the money to pay for care without having to go into debt. This is a plus because you will have the funds to be able to opt for a facility of your choice or stay at home—whichever is most appropriate in your situation.

Without a policy, you and your spouse could be forced to take between $110,000 and $125,000 a year out of your savings and income to pay for long-term care. Also, someone in your family would have to make the decision about who will be caring for you, who will be paying, and where you will stay. This often causes friction between family members.

It is very important to seek the counsel and guidance of an experienced elder law attorney when devising your long-term care plan. Without a long-term care plan, you and your spouse could endure costly expenses and long-term consequences that would have a disastrous effect on the quality of life for a spouse who remains in the community.

Simply stated, estate planning is the process where consideration is given to making sure that a person’s assets are distributed in accordance with the person’s wishes, in such a manner that will ensure that the value of the assets received by the person’s beneficiaries is maximized by the reduction or elimination of estate taxes and other costs and expenses arising after a person’s death. Consideration should be given,  first and foremost, to the person’s wishes and desires as to the ultimate disposition of the person’s property and how best to ensure that the intended beneficiaries receive those assets unreduced by estate taxes and expenses to the greatest extent permitted by law.

Will, also known as a Last Will and Testament, is the legal document that disposes of certain assets owned by a person after that person’s death. The Will does not dispose of all assets that a person owns. The Will only disposes of assets that are titled in the person’s sole individual name at the time of death. Other assets, such as property owned in joint names with right of survivorship with another person at the time of death, assets with a designated beneficiary (such as life insurance proceeds, retirement plans, pensions, profit sharing plans, 401(k) plans or IRAs) and assets in trusts pass outside of the Will to the person who is the joint owner, designated beneficiary or beneficiary of the trust.

Many people answer this question with a “no” for reasons they feel (or convince themselves) are valid or because they feel that the preparation of a Will can be easily put off to some (usually unspecified) time in the future.

The fact of the matter is that for different reasons almost everyone should have a Last Will and Testament setting forth the person’s current wishes and desires with regard to the disposition of their estate. The Will should also appoint a fiduciary to manage and administer the estate as well as a guardian for any minor children. It should be prepared by and executed under the supervision of an experienced attorney, because failure to follow statutory requirements can invalidate the Will. If you die without a Will, your assets will be distributed under the terms of your state’s “intestate succession” laws. That means that your money and property could end up with family members you haven’t spoken to in years.

It is very important to give serious consideration to contacting an experienced attorney to have a Will drafted. This attorney can assist you with preparing the Will and guiding you in estate planning issues in order to ensure that your assets can be passed on to your loved ones in the most efficient manner and at the lowest cost, including the minimization of estate taxes. Also, an experienced attorney can assist you with updating your Will as well to reflect major life events, such as a divorce, birth of a child, or if you happen to move to another state.

Having a Will prepared and/or updated by your attorney is not only the prudent and responsible thing to do, regardless of age or circumstance, but one that will leave you with peace of mind, before you remain at peace forever.

Yes. In your instance, two very good reasons, namely your two young children! Even if you do not own any assets solely in your name that would require a Will to transfer ownership to your loved ones, a Will can also serve as a critical estate planning tool for someone with minor children. A Will gives you the opportunity to appoint a Guardian for any minor child that may survive you and your spouse. If you do not take advantage of this opportunity, a Guardian will be appointed by a Judge who does not have to benefit of knowing you, your family, or the family’s needs and who may very well wind up appointing someone that would not even be considered by you to undertake this important role.

It is possible for you to do so but it is strongly suggested that you do not attempt to do this on your own. The forms that are available on the internet will, invariably, need to have some provisions either modified, deleted or added in order for them to carry out your desires in the most efficient and economical manner possible when it comes to minimizing or eliminating estate taxes and other estate expenses and to ensure that they conform to the requirements of New York State law. Documents prepared by an experienced estate planning attorney will provide you with the greatest chance of ensuring that your wishes will be carried out as efficiently and inexpensively as possible.

Probate simply refers to the process where, after a person dies, his or her Will is filed with the Probate Court (known as the Surrogate’s Court in New York State) having jurisdiction over the estate, together with certain documents and a Petition. The Petition is usually brought by the person named as Executor in the Will, and asks the Court to declare that the Will is a valid and genuine last Will of the decedent and should be used to determine who is entitled to receive the decedent’s property. If there are no minors or persons under disability interested in the Estate and where everyone’s whereabouts is known, the probate process can in most cases be completed within a couple weeks.

After the Will is admitted to probate, the person designated in the Will as Executor is granted what are known as Letters Testamentary, which give the Executor the power and duty to collect and value the decedent’s assets, pay all of the person’s just debts and funeral and administration expenses, file whatever estate or income tax returns that may be required, and, when all of this has been accomplished, look to the Will to see who the decedent wants to receive the remaining assets of the Estate.

How long it takes to “settle” an estate depends on the facts and circumstances involved in the particular estate. Assuming that there are no major disputes among the beneficiaries or the need to commence a lawsuit to collect a debt owed to the decedent or to pursue a wrongful death claim, an estate where no estate tax returns are required can be wound up in less than one year after the decedent dies.

An Executor does have a duty to account to the beneficiaries as to the value of the assets that have come under his or her control, any increases or decreases in the value of those assets on their sale or other disposition, all income earned by the Estate and all debts and funeral and administration expenses paid on behalf of the Estate. Normally, this is accomplished by a form of informal accounting by the Executor, but in some instances, such as when there is a minor or person under disability interested in the estate or if there is a dispute between a beneficiary and the Executor, a formal accounting detailing each and every item must be prepared and filed with the Court to obtain the Court’s approval of the Executor’s actions.

Returns that may be required include the decedent’s final federal and state personal income tax returns, federal and state fiduciary income tax returns reporting income earned after death and federal and state estate tax returns if the value of the estate is large enough to require estate tax returns to be filed.

Many times probate in New York can be completed in seven months.

New York has the solemn form of probate which can be finalized in as little as seven months. Many other states have the common form of probate which is not final for several years.

Everyone needs a Will, but I feel parents with young children need Wills the most.

No. If they are under the age of 18 they are under a legal disability called minority.

The best way is a contingent trust to manage their inheritance until adulthood.

A trustee, normally a person or institutional trustee nominated in the Will.

Until the children are legally adults and responsible enough to handle their own finances.

Not necessarily. For example, if your children have different needs, you may provide for those differences in the trust.

The Will may authorize the Executor to handle the situation in other ways, such as by establishing a Uniform Transfers to Minors account.

The Surrogate’s Court may need to appoint a court-supervised Guardian of the property.

This kind of guardianship is expensive and cumbersome. The appointed Guardian might be a stranger. The Guardian may need to petition the court when an expenditure is required for a child. The better practice is to nominate a Guardian in your Will.

It should nominate a Guardian of the children’s person and property for them in the event of your death.

Your Will should nominate successors to act in these capacities.


A document authorizing another person to act as your agent for various purposes.

No. Power of Attorney is the name of the legal document.

Agent or Attorney-in-Fact.

Someone may need to petition the court to be appointed your Guardian.

Only someone that you trust, generally a close relative or friend.

To act only at the direction of the person who appointed him or her (the “principal”)  and if that is not possible to act in what the agent reasonably believes to be in the best interest of the principal.

No. The authority of the agent terminates on the death of the principal.

No. A separate document call a Health Care Proxy is required for that.

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