Basic Estate Planning FAQs

Why do I need a Will?
A common misconception is that wills are only for “rich” people. But in actuality, a will is an essential part of any estate plan and is necessary to transfer your assets upon your death. A more sophisticated will is extremely useful to establish trusts for minors, and spouses, in cases of divorce, and when dealing with incapacitated persons, so that assets do not pass directly to them. If you die without a will, state law controls the disposition of your property. Settling an estate without a will is more troublesome, costly, and takes a lot longer.

Do I need a Durable Power of Attorney?
A durable power of attorney is a document that allows you to appoint one or more persons to make your business and financial decisions. This becomes even more crucial should you become incapacitated. Upon incapacity, the person you appoint can even be authorized through the Power of Attorney for Medicaid planning to protect your assets.

Do I need a Health Care Proxy And Living Will?
Every person should have a Health Care Proxy. This is a document that allows you to appoint someone to make your health care decisions if you are unable to do so yourself. This document will allow someone you trust, who is also familiar with your healthcare wishes, to make healthcare decisions for you, rather than the medical professionals.

Essentially, a Living Will provides more detailed information about what procedures you want or do not want if you are incapacitated. In addition, in case your Health Care Proxy agent’s decisions are challenged, the language in the Living Will can also be used as clear and convincing evidence of your wishes in a New York court.

What is a Living Revocable Trust?
A living trust is an agreement that you make with someone you trust called a trustee. It is set up during your lifetime and you transfer most or all of your assets into it. You have the right to receive the income from the trust assets and you may withdraw a portion or all of the principal of the trust whenever you wish. A trust may offer the following benefits: it allows a trustee to manage your trust assets upon incapacity; it enables the trust assets to pass automatically to the trust beneficiaries without the need for a probate proceeding; and in some cases, a trust can be used to protect your assets in the event you need Medicaid to pay for long term care.

What is per stirpes?
“Per Stirpes”, which is Latin for “by the root”, provides directive language in a will, indicating that property will pass to your decedents and/or blood relations as per your “family tree.” If you leave property to your child “per stirpes” and that child predeceases you, leaving children surviving, the property will go to his or her children. If the child predeceases you leaving no children, his or her share will go to your remaining children.

How should I appoint an executor?
When selecting and executor, it’s always wise to appoint someone who is trustworthy and familiar with your wishes.

Your executor is your personal representative after your death and will have several major personal and financial responsibilities to settle your estate. These may include collecting and preserving estate assets, paying debts and expenses of your estate, making tax decisions and filing necessary federal and state income and estate tax returns, and distributing assets to your beneficiaries.