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Brooklyn Probate & Estate Administration Law Blog

The benefits of discussing estate planning with your children

When people want to talk about their wills and trusts, they tend to turn to their spouses, friends, executors and attorneys. However, one potential group that people tend to put off discussing the estate with is their heirs, more specifically their children.

It is understandable why. Doing so means discussing your death, an uncomfortable topic for all parties involved. You are also afraid that telling your children how much they will inherit might demotivate them from working hard now.

Take care before saying 'no thanks' to a loved one's bequest

Is it impolite to turn down a gift? Do a search of this question online and you'll find that opinions differ. Some observers say you should always accept with gratitude. Others suggest you factor in the intention behind the gift, or consider what negative implications the gift might hold for the recipient.

That last view is the one that might play the greatest role in comprehensive estate planning. It is something that many might not even consider, but whether you are the giver or the receiver of an inheritance, it makes sense to be clear about consequences if a hand-off occurs. Sometimes it might make sense to just say no thanks by employing the legal tool of a disclaimer.

Tax reform's implications for estate plans

We have noted often over the years that one of the biggest mistakes anyone makes regarding estate planning is failing to keep the living documents up to date. Every time we experience a life change, whether it be a marriage, divorce, death of a child, or some other divergence from the normal flow of things, updating the plan becomes a priority. Too often it doesn't even make it onto the radar and what results is unwanted pain and expense down the road.

All the examples of life changes provided so far represent events that are internal, but sometimes external changes occur that have implications for estate plans, as well. Many analysts agree that at least some provisions instituted under the recent Tax Cuts and Jobs Act, warrant review, especially as they concern married couples.

Managing the estate executor role

It's an honor to be named executor of a will, but it's also hard work. While most executors understand their role, there can be a lot of confusion when it comes down to getting things done. Unless you work in the legal industry, the order of the process, the different types of paperwork and all of the loose ends can be difficult to manage.

Your role is to oversee that the estate plan is carried out, that the deceased's will or trust successfully passes assets from one owner to another. Before that can happen, you need to close any debts, pay taxes, file paperwork and locate all of the property that's about to change hands. It's highly detailed work.

2 tools for ensuring financials for a disabled adult child

There's a notable quote that goes, "No parent should have to bury a child." As the original source of that phrase also said, it's unnatural. The notion makes sense. The normal cycle of life calls for those of the older generations to pass before those in the younger, and most of the time that's how things work.

But even following the normal course of events can cause anxiety for parents who care deeply about caring for their children. And that concern only runs deeper when one of those children has some form of chronic disability. The extensive care that child may require is typically borne by the parents. How will that care be delivered if the child outlives the parents? Can strategic estate planning meet care needs without causing friction in the rest of the family?

Kinship hearings: Getting to the roots of valid inheritance

Family trees can be complicated things. Indeed, the nature of relationships today is such that it can be hard to find words to describe a given family. There might be second families, blended families, extended families and more. Such variables also create unique challenges for the courts in New York when someone dies, especially if there is no will and the estate is significant in size.

What typically happens in such instances is that an agency known in New York as the Surrogate's Court will appoint an administrator whose task is to distribute assets to heirs in line with the state's law on intestate succession. Identifying heirs can be simple, such as when there is a spouse, children and other close relatives. It can be difficult if lines of succession are less clear and the probate process sparks relational claims from previously unknown individuals. To resolve such contested issues requires litigation through a kinship hearing.

Does your estate planning require a trust protector?

Trusts come in a wide range of styles. There are revocable trusts, irrevocable trusts, even incentive trusts, which we wrote about in a post some time ago. This is not a complete list of trust tools available under New York estate planning law. The one that might be most appropriate for your needs can be determined by consulting with counsel committed to understanding what you want to accomplish.

In most cases, the process involves more than drawing up the documents. Take incentive trusts for example. This is a trust that can be useful if you want to provide for heirs after your death, but worry the heirs lack the character to use the resources wisely. The incentive trust can make access to assets contingent on heirs meeting certain conditions, and it is up to a trustee to determine if conditions are met.

Actions you can take now if parent guardianship is considered

Let's presume you are a millennial only child and your parents are in their 60s. Maybe you are not feeling concerned about their ability to take care of themselves right now, but you recognize that the day is bound to come when they won't have the capacity to make decisions. Someone, most likely you, will have to take over that function. What should you do?

New York has provisions of law that allow for the setting up of guardianships for the protection of loved ones. However, the statutes set certain requirements before courts can give approval. The process can be complicated and time consuming and sometimes the need for action arises suddenly. If you are that millennial or you are the 60-something parents of such a person, it's possible start thinking now about what might be inevitable and anticipate how to get into guardian mode.

Executor's role is not one that needs to be done alone

One of the most common questions that estate planning attorneys address in the initial stages of the process deals with identifying an executor or executors. These are the individuals who are named in your plan as having the responsibility of and authority for clearing up any of your outstanding financial obligations after your death and distributing assets according to your wishes. Failing to name an executor means one will be appointed by the court.

It should be no surprise that most individuals in New York choose to make the choice themselves. The designation reflects the testator's or testatrix's confidence in the integrity of the executor. However, integrity doesn't ensure the person has the organizational and communication skills, or the time and patience to effectively navigate sometimes complicated probate processes. Fortunately, if estate proceeds are sufficient, it is possible to enlist the help of an experienced attorney.

What are some useful estate planning tips?

Perhaps the most important tip in response to the question posed in the title of this post is: Create one. It is unfortunate, but too many people make the mistake of thinking they don't need an estate plan.

Maybe it's because they don't think they have assets of a kind that anyone would call an estate. Some people may procrastinate planning because they associate it with the inevitability of death and don't want to think about that. Maybe they fear the cost of the process.

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