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Careful estate planning for all couples is essential to the security of the family. Every family is different, meaning your family’s estate plan should be in alignment with your family’s situation and wishes. To make sure your loved ones are fully protected and secure, you’ll need various documents to help make the estate planning process faster and go smoother. Our New York estate planning and probate attorneys are available to inform you of the various documents you need and can help you file them correctly so you never have to worry about whether your family’s future is in jeopardy. Chianese & Reilly Law is committed to helping local families throughout the state.
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Last Will and Testament
A last will and testament allows the drafter of the document to control the distribution of their assets upon death. The law provides that if a person dies without a will, their legal next of kin will be the recipients of their assets. In most cases, that would be a spouse, children, parents, siblings, siblings’ children, aunts and uncles, or first cousins, in that order. With a will, the property may be divided and distributed as the drafter chooses. Also, a will is the only document that allows parents to name legal guardians for their children should tragedy strike.
Durable Power of Attorney
This document allows the drafter to authorize another person to make financial decisions for them should they become unable to do so or they pass. It authorizes, among other things, the payment of debts, the collection of payments, the redistribution of assets, the withdrawal of assets from a bank account, and the sale of property. Because of the important nature of these powers, there is an attached affidavit that the authorized party must complete before the powers become effective. This affidavit is a built-in protection mechanism to avoid misuse of these powers.
Designation of Guardian for Property Management and/or Personal Needs
If a person were to be judicially declared incompetent or incapable of managing their property or themselves, the court would appoint a guardian for that purpose. The guardian is usually a family member. This document allows the drafter to designate who that guardian would be.
A living will states exactly what measures a person wants or does not want if certain specifically outlined medical conditions arise. It does not, however, authorize another person to make those decisions for the drafter of the living will.
Medical Power of Attorney/Health Care Proxy
This document allows a designated person to have access to medical records and make specified medical decisions for the drafter should they become incompetent to do so themselves.
Priority Visitation Directive
A priority visitation directive specifies who the drafter prefers to have priority visitation privileges, usually over family members. It tells a hospital administrator, floor supervisor, and any other hospital personnel that the possessor of the document shall not be denied access to the hospitalized drafter of the directive.
Affidavit of Burial or Cremation
This document ensures that a funeral director or funeral home administrator follows the instructions given to them by the person designated in the affidavit.
Important Estate Planning Issues
Figuring out which family members get how much of one’s estate, which items go to which family members, and how to ensure your estate and its possessions are distributed accordingly has become increasingly complex due to the changing nature of modern family make-ups. At Chianese & Reilly Law, we can sit down with you and walk you through the estate planning process. Below are some of the areas where most estate planning complications and challenges arise and what you should consider to avoid common estate planning mistakes.
Estate planning can be more complicated for same-sex couples. The first thing to consider is getting a title for your property. This title indicates full ownership.
For married and unmarried couples, there are three ways to pass down property ownership: Tenants by Entirety, Tenants with Rights of Survivorship, and Tenants in Common.
Tenants by Entirety is the most secure way to own property as a couple because it allows spouses to own property together as a single legal entity with automatic rights of survivorship. Under a Tenancy by Entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety. Joint Tenants with Rights of Survivorship (JTWROS) is the most secure way for unmarried couples to own property because the property automatically passes to the surviving partner.
You must, however, keep accurate records as to individual contributions to the property because the IRS considers the first to die as the owner of the property in full. The last way a couple can own property is Tenants in Common, which allows a couple or additional owners to own indivisible parts of the property. Unlike JTWROS, with a Tenants in Common, their share passes through their will when they die instead of going directly to the surviving owner.
Families who have children or are legal guardians over minors would benefit from setting up a trust for the minors. Trusts allow the drafter of the trust to transfer his or her assets to an intermediary party who will then hand those assets to the named beneficiary (usually the minor).
There are two types of trusts: revocable and irrevocable. Revocable trusts help bypass probate and irrevocable trusts assist in estate tax planning. If you have children that are minors, you should consider creating a will with a testamentary trust (a trust that does not come into existence unless you, or you and your spouse or partner, both die).
Also Handling Marital Agreements
While no one wants to think about dying, nobody wants their marriage to fail either. Marital agreements assist couples in dividing up of and distribution of the couple’s possessions should the marriage dissolve.
For unmarried couples, drafting a domestic partnership agreement will help ensure the couple’s assets are divided equally and fairly between the two parties. It is important to note that a domestic partnership agreement isn’t the same as a domestic partnership agreement. These types of agreements, as well as pre- and post-marital agreements are legal contracts drafted and reviewed by attorneys.
The following are the most recognized reasons why couples should consider drafting these agreements:
- They can be used to memorialize the partner’s respective contributions toward the acquisition of major assets, such as real property, investments, and so forth, and provide a mechanism for division of assets and liabilities in the event of dissolution of the relationship. This can also be addressed in a separate document called a “Joint Tenancy Agreement.”
- They define financial obligations to one another (and/or to the partner’s, children), both during the partnership and after dissolution.
- They can define separate and joint property for the purposes of equitable distribution upon the dissolution of the relationship.
Other Benefits of Marital Agreements
If you are unmarried and have a Domestic Partnership Agreement, these agreements are important because they may provide the basis upon which a court may grant the parties a particular right or benefit ascribed to legally married couples exclusively if the relationship dissolves. As dissolutions are often messy and contested, these agreements provide the court with a clear declaration of the intentions of the parties.
If you are married and have a pre or post-marital agreement, you get to define the terms of the dissolution. As long as there are full financial disclosure and independent legal representation for both parties, the parties can define separate and marital property and provide for spousal support if appropriate. Marital agreements create a clear path to a considered and fair dissolution.
If you have any questions regarding estate planning, marital agreements, or trust planning, contact our office at Chianese & Reilly Law and we’ll be happy to discuss your concerns, questions, and goals.
Call our New York estate planning and probate lawyers for sound counsel at (516) 604-2240. We can demystify the legal process so you understand what you need to secure your family’s future.