Frequently Asked Questions - Wills and Trusts

My wife and I have one minor child, a house with a mortgage, and a minimal amount of savings. Do we need a will?

Although you may think that wills are only for wealthy people who want to avoid estate taxes, there are other reasons for making a will. Without a will, your property may be distributed in accordance with a state statute (known as the “intestacy law”) that may not carry out your wishes. For example, under New York’s current intestacy law, if your spouse survives you, your spouse may not receive all of your estate; instead, he or she may have to share the estate with your children. Another reason to make a will is if you have minor children. If you have a will, you can provide the name of the person in your will, known as a guardian, who will care for your child until majority. You may also want to choose provide for a trustee to manage your children’s inheritance until they are of suitable age to manage it themselves. In your will, you can choose the person you want to handle your estate (known as an “executor”), whether it be your spouse, a relative, or a friend. Finally, only with a will can you make special provisions for a child or other relative with special needs. A will is tailored to your particular needs and expresses your personal choices....and we can help guide you through the process.

My wife and I are in our sixties. Our children are grown and no longer need a guardian. All of our assets, including our savings accounts and house, are in joint name. Do we need a will?

Although transfer of a jointly owned asset passes independently of the will to the surviving owner, upon the surviving owner’s death, without a will, the intestacy laws will govern and that spouse’s property may not be distributed in the manner that he or she wishes. Also, depending on the value of your assets, your estate may be subject to federal and New York estate tax, particularly on the death of the second spouse. This tax can be avoided or reduced by proper estate planning that may require a change in the form of ownership of assets and the execution of a will or will-substitute such as a revocable trust.

I often hear on the radio advertisements for “living trusts”, which are recommended to avoid the costly and time-consuming probate process. What is a living trust?

Often such ads overstate the benefits of a “living trust.” A living trust is a trust created by you during your lifetime into which you place all of your assets. You continue to enjoy the benefits of those assets during your life. In many cases, a living trust may be revoked or amended by you, as the creator. Upon the creator’s death, the trust acts as a “will substitute” in that the trust assets pass to beneficiaries designated in the trust, without the necessity of going to a court to admit a will to probate. A revocable living trust, in and of itself, generally does not serve to avoid estate tax or to shelter your assets from paying for a nursing home. As compared with a will, a revocable living trust can be more costly to prepare and more expensive to implement since all of one’s property, including a house, must be transferred to the trust to avoid probate. The cost to probate a will is, in many cases, not outweighed by the additional expense of establishing a revocable living trust. For many people, a will is more than sufficient to accomplish their estate planning goals; however, in some cases, a revocable trust may be more appropriate for a variety of reasons, despite the additional expense involved. Upon review of your family situation and your assets, we can advise you whether a revocable trust would be a cost-effective and efficient way to pass your assets to your beneficiaries.

I’ve heard that everyone should have a “living will”. What is a living will?

A living will is one of several documents known as “advance directives”, named as such because the directions given apply to situations which may occur in the future, such as incapacity. A living will is used to communicate your wishes concerning medical treatment (and to what extent medical treatment should be withheld) if you are unable to communicate such wishes yourself. It eases the burden on family members and also may constitute the informed consent needed by health care providers. Other “advance directives” include health care proxies (in which you appoint someone to make medical decisions for you if you cannot) and powers of attorney (where you appoint someone to handle your personal and business affairs). We explain to all of our clients who engage us to prepare their wills and for estate planning the nature of advance directives and prepare them regularly as part of their estate plan.

Our daughter is disabled and currently receiving governmental benefits. Should we update our will to add special provisions for her?

Absolutely. In your will, you can express your preferences for your disabled child’s future care, such as living arrangements, and the person who will be responsible for managing your child’s assets. Also, you can create a trust in your will called a supplemental needs trust that will insure that your disabled child will be taken care of but not jeopardize his or her eligibility for government benefits. In addition to your will, when you come in to see us, we will discuss other ways to protect your child, such as the appointment of a “stand by” guardian to care for your child should you and your spouse be alive, but unable to do so.

PLEASE NOTE THAT THE ABOVE QUESTIONS AND ANSWERS ARE FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE ADVICE. EVERY SITUATION IS UNIQUE AND IF YOU ARE CONFRONTED WITH AN ELDER LAW ISSUE, WE ENCOURAGE YOU TO MEET WITH US SO THAT WE CAN GIVE YOU ADVICE SPECIFICALLY TAILORED TO YOUR NEEDS.