It’s been a while since you’ve heard from me. Work, life, family – it can all get to be overwhelming at times and even though writing newsletters has been an ongoing task on my “to-do” list, it kept getting pushed down.

That same thing often happens when people are getting their legal affairs in order. They think they can do it at a later time or have good intentions of looking into it, but keep pushing it back since it’s not a top-of-the-mind thought. 

This is the perfect topic to kick off my return to writing – the importance of estate planning. 

What happens to your estate and assets when you pass away?
Who will take care of your minor children if you pass away or can no longer take care of them?
Who will make medical decisions for you if you are unable to communicate? 

It all starts with the most basic of documents and that is a last will and testament. But that document only details what happens after your passing. What if you have a medical situation that renders you unable to communicate your wishes? 

This is where advanced directives come into play and they include a living will, a health care proxy and a power of attorney. 

Living Will – You outline your wishes if and when you are in a terminal medical situation, for instance, choosing whether or not you are kept on life support. 

Health Care Proxy – You appoint someone in your family, or a trusted friend, who will communicate on your behalf about medical decisions if you are unable. For instance, you are in a car accident and are put into a coma. 

Power of Attorney – You appoint someone that can handle your affairs while you are still living. This person can transfer assets, pay bills, talk to your insurance company or bank, etc. They can also sign documents for you. The powers given to this person can be quite broad or very limited. For instance, you take a trip to a remote island and can’t be reached by cell phone, yet an important bank issue needs to be taken care of back at home. 

A last will and testament is very complex and outlines guardianship of minor children, charitable donations, inheritances of personal property, homes, money, etc. New York State has a plan for your assets if you don’t have a will, but it may not be the plan that you envision.

In your will, you will appoint an executor, someone whom you trust, to carry out the distribution of your assets. If at any time you need to change who that executor is or make other edits to your will, you may do so without creating an entirely new document. Keeping up to date with what you have already written is very important as life changes quickly and situations are not always as they seem. 

What happens if someone doesn’t have a will when they pass? 

Someone who has an interest in your estate (a spouse, a child) will be appointed by the Surrogate’s court. The law will determine how your assets are distributed. This is not ideal because the person getting this power might not be the person you would have chosen. 

If a person who passes does not have a spouse and their children are under the age of 18, the Court can appoint someone to act as a guardian. Without the written wishes of the deceased, there is no way to guarantee that the children will end up with the person best suited to fit their needs. 

How can someone be sure that their will be executed properly? 

The person writing the will (the “Testator” or “Testatrix”) has to be of sound mind to execute their will. A minimum of two witnesses will also need to witness the will at that time. These witnesses will not be people who will inherit something in the will, they have to be disinterested parties. While the law requires only two, it is my practice to avoid any potential issues in the future and to have three witnesses.

What is required is an affidavit of attesting witnesses – this way when a will is probated, there is no need to locate the witnesses and get them to sign an affidavit years later.  

As your attorney, I will ensure the documents are legally binding and enforceable. Each state has its own laws of how assets are distributed if one does not have a will. I am only admitted to practice in New York so my comments here are only for New York wills. 

It doesn’t matter if you are young, if you are busy or if you feel like you don’t have many assets, anything can happen at any time. When these documents are in place, you gain peace of mind and can trust that you will be taken care of should a tragic or unexpected situation occur.

Sugarman Law is here to answer any questions you may have and we can also take a look at any existing estate planning documents you have to make sure they are set up properly and no changes need to be made.