Articles Posted in Wills & Trusts

From time to time our firm is asked if a promise to make a Will leaving one’s inheritance to a particular person is enforceable.  Such promises occur in the following situations.  A relative spends a lot of time with another, perhaps even doing substantial favors for the person, who repeatedly says “I won’t forget about you in my Will.”  A person may have intended to revise his Will to include someone, told that person of such intent, but never got around to making the revision.  Such a suggestion may also be part of a resolution of a marital dispute wherein the spouse agrees to provide for a child in his Will.  Our basic answer is that such promises are not enforceable in New York.

Even if a particular disposition is made in a Will favoring a particular person, such a provision could be removed upon the execution of a Codicil (amendment to a Will) or in an entirely new Will.  Since Wills are organic documents that can be changed as the Testator (the legal term for the person who makes a Will) desires, obtaining assets through a lifetime gift or having a dispute settled by the payment of funds during lifetime is the only way to make sure that such assets are left as desired by the recipient.  The testator can leave his assets to any person or charity that he wishes.

Our readers may have heard of the term intestacy, which is the legal term for passing away without a Will.  In such a situation, New York State’s statute  determines who will inherit a person’s assets, which is dependent upon such person’s relationship to the deceased.  If the closest surviving person to the deceased is his daughter, then she would inherit the assets.  Should the deceased have a surviving spouse and children, then spouse receives $50,000.00 plus half of the assets and the children divide the other half of the assets.

Some of our trust and estate clients  have adult children who are disabled.  The child may have been born with a disability, such as cerebral palsy, making the parents accustomed to allowing for the disability while knowing that such disability will never go away.  In the alternative, the disability may have occurred later in the child’s life, such as  drug or alcohol addiction or mental illness.  The parents of these children need to acknowledge the limited capabilities of their children while also providing for the possibility that the child could be self-sufficient if the underlying condition is abated.  In either case, parents need to provide for the possibility that the child could outlive both parents or the parents could become ill and unable to care for the child.  This post will address the legal issues to be considered for disabled children.

As discussed in our prior post pertaining to providing for pets in one’s estate plan , parents should write a detailed letter to caretakers and trustees specifying care for the child, such as favorite foods and activities, details of relationships with relatives and friends and medical care history and details.  Practical matters should be considered such as selecting housing, like a licensed group home or assisted living facility, for the disabled child.  This should be done prior to the decline of the parents.

It is crucial that potential access to government benefits be preserved for a disabled child. These government benefits may pay for health care and community services.  In order to preserve access to government benefits, refraining from titling assets in the child’s name outright is crucial.  As such, there should not be a bequest in the parent’s Will in the name of the child.  Instead, the Will should leave assets to the child by means of a Special Needs Trust .  The Special Needs trust needs to specifically state that it is not to be applied in such a fashion that access to government benefits would be denied.  As such, the government benefits will be used to pay for the child’s basic needs and the Special Needs Trust will be used to pay for the extras that would assist the child.

Some of our trust and estate clients have asked us how to best protect their beloved pet in the event of their disability or demise.  Pets can be just as important as children when planning one’s estate.  These family members can be adequately provided for in a legal fashion.  Traditionally, pets have been considered to be personal property, being no different than a car, furniture and the like.  Our post addresses how personal property is typically distributed after someone dies.  Some pet owners consult us to have their pets treated in a more personal fashion in their legal documents.

Practical matters should be considered such as selecting a potential caretaker and confirming with such person that they are willing to serve.  The caretaker should be informed about the pet’s habits and preferences, such as how often and where the dog likes to be walked and pet food preferred.  Contact information for the veterinarian, medical conditions and medications taken should be indicated.  Funeral arrangements should also be made known, such as whether a cemetery plot has been purchased and whether funeral expenses have been prepaid.  These practical matters are particularly important because the pet is unable to communicate, as a child may.

From a legal perspective, persons interested in legally protecting their pets should consult the attorney who is drafting their overall estate plan.  Financial consideration to the caretaker needs to be arranged, while at the same time requiring the caretaker to perform certain duties on behalf of the pet in order to be compensated.  A pet trust is a legally appropriate means to accomplish this goal.  Such a document (or provision within a Will) would provide that a certain sum of money is to be set aside for the care of the pet by a particular person, which sum is to be released in particular intervals provided that the caretaker is assuming the duties expected or upon delivery of proof of payment of expenses on behalf of the pet.

The New York Times recently published an article concerning the scenario that many New Yorkers fear. Having lost personal and professional connections to relatives and friends, some people unfortunately die alone. Since these people are not missed, days or weeks could go by before odors emanate from their home and uncollected mail piles up, resulting in a neighbor’s notification to the police about a suspected death. The police discover a corpse, which starts the legal matters to be addressed in this post.

These lonely people may very likely have mental issues such as compulsive hoarding. Perhaps the embarrassment of the condition of their home led these people to stop inviting people over, leading to additional isolation. The items will need to be removed in order to surrender an apartment to a landlord or to sell the home. Care is to be taken with respect to valuable items, being mindful of the need to deliver such items to the proper beneficiary, if such person is located.

It remains to be determined whether the deceased person had a Will, which may have been left in the personal possessions in the home. If there was a Will, the proposed fiduciaries need to be located so that a Probate Proceeding may be commenced in Surrogate’s Court. However, if a Will cannot be located, an estate Administration proceeding is to be conducted. We have indicated in a prior post tasks to be conducted by an estate administrator. Our readers may also wish to consult one of our prior posts concerning the mechanics of an Administration proceeding.

After another harsh winter in New York, many of us are looking forward to getting away this Memorial Day weekend. Those of us who are driving may have acquired the vehicle from an estate. This post will address estate issues as they pertain to cars and other vehicles.

As many of us know, cars in New York involve title, registration, and insurance. They may also involve a lease or a loan. We have written another post concerning how to manage debts of the deceased. The first step is that the Surrogate’s Court of the County in which the deceased resided needs to appoint an executor (if there was a will) or an administrator (if there was not a will). The executor or administrator needs to act on behalf of the estate to manage all relevant aspects of this matter.

Every car must be insured. The executor or administrator should employ his best efforts to maintain the insurance policy on the vehicle. Certainly, the car should not be driven if insurance has lapsed, because this could result in a ticket from the police if one happens to be stopped for another violation.

Every person who dies, whether wealthy or not, will owe money. Whether there is a credit card balance outstanding or estate taxes due to the State of New York, most people will leave this world with a financial obligation of some type. The questions to be addressed in this blog post involve how the fiduciary of the estate should address such debts and whether the fiduciary is personally responsible for the debts. Also, should debts of the deceased be deducted from estate proceeds before distribution to beneficiaries?

The first step is to analyze the types of potential debts. There are secured and unsecured debts. Secured debts are collateralized, such as a mortgage recorded against the house in which the deceased lived, or a car lease. An example of an unsecured debt would be a credit card balance with Visa, Mastercard and the like. Other common unsecured financial obligations include funeral expenses, administration expenses of the estate, estate taxes due to the state or federal government and real estate taxes on property owned by the deceased. Of course, ordinary bills from utilities and doctors will most likely be received.

The fiduciary of an estate in New York is called an Executor if there was a Will, or an Administrator if there was not a Will. Such a fiduciary is charged with collecting all assets of the estate, paying all legitimate obligations, and distributing the balance, if any, to the beneficiaries of the estate. Being a fiduciary is a significant responsibility. Provided that the fiduciary acts ethically and in good faith, he will have no personal obligation for financial obligations of the estate.