Wills and Trusts

A Last Will and Testament sets forth how an individual’s Estate will be administered. The person who executes a Last Will is known as the Testator. It will set forth that person’s wishes as to whom will serve as the representative of his or her Estate, who is referred to an “Executor” when they are selected to serve in this capacity in another’s Last Will and Testament. A Last Will also sets forth how a person’s Estate must be distributed.

In the absence of a Will, an individual’s Estate will be distributed under the laws governing “intestacy” in the State of New York. This removes from a person the control over how their assets will be divided upon their demise. There are many reasons why a person would wish to have their Estate distributed in a manner that is inconsistent with the laws of intestacy.

For example, there are a litany of reasons why a person might wish to favor one child or another, or even to totally disinherit one of their children. Or an individual may wish that his or her spouse inherit their entire Estate, rather than having a portion be distributed to their children. Alternatively, while a spouse cannot be completely disinherited, a Last Will might be used to limit the amount of their inheritance to the lowest amount permitted by law.

There are a number of services and websites out there that purport to help a person execute a legally-valid Last Will and Testament for a fraction of the cost of having an Elder Law attorney do so. While in theory such a Last Will might be legally-valid, in practice, obtaining a Last Will from one of these bulk providers threatens to create significant problems for a number of reasons, including that an attorney was not present to oversee the execution of that Last Will and that family friends or neighbors often serve as the Will witnesses.

Difficulties arise when a person entitled to notice of an attempt to have a Last Will “probated” files an objection, as the law requires a person attempting to probate a Last Will to provide notice to certain individuals (“probating” a Last Will refers to the process of having it declared valid in the Surrogate’s Court and obtaining the appointment of an Executor to administer the Estate.) Among the drawbacks of attempting to save money by using one of these services is that in a significant percentage of attempts to probate a Last Will, objections are filed.

Individuals objecting to the probate of a Last Will often allege fraud, undue influence, coercion or other grounds upon which it can be deemed invalid, which can result in it not being probated. Having an experienced and well-regarded Elder Law attorney prepare and oversee the execution of your Last Will will allow you to avoid a situation in which your friends or neighbors – who served as your witnesses but have no experience in such matters – are called upon to testify in depositions and/or the Surrogate’s Court regarding whether the Last Will was properly executed. The experienced Elder Law attorney will have extensive experience in drafting and overseeing the execution of Last Wills, and the employees of his or her law office who serve as witnesses will typically have served as the witnesses for a large number of such execution ceremonies, and will be able to provide credible and reliable testimony regarding the ceremony at any deposition or in Court.

Trusts are tools that can be used for a number of purposes, including providing for a loved one with special needs, providing for the management of an inheritance until a beneficiary reaches the age of majority, estate and Medicaid planning, and to avoid the probate process altogether. Some people even use them to provide for their pets! A Trust can be set up and funded with a person’s assets while they are alive or after they pass through their Last Will. Consulting with one of our experienced attorneys, you will be able to determine whether a Trust would be of utility to you and your family, friends and/or loved ones.