by Nancy J. Brady, RN, Esq., Partner, Brady & Marshak, LLP
Estate planning is a general term which most often refers to planning for how one’s property and assets will pass to one’s survivors. Lawyers who practice in the area of estate planning also have an eye towards planning for clients’ incapacity during life, as well as the impact estate planning (or lack thereof) may have on other family members.
We can easily see the need for planning for the older generation; they have accumulated some savings, have some medical problems, and are worried often about leaving things in order when they pass. The elderly among us (70 plus) have a more obvious need to see an estate planning attorney and put a plan with the pertinent documents in place. Typically, a plan for a married couple who own their home may include the Power of Attorney and Health Care Proxy- which serve to designate agents, or representatives, to step into the financial decision making and medical decision making roles respectively. The basic plan for this couple would also include a Last Will and Testament. Although spouses may currently own everything jointly, when only one survives it would be important for them to document their wishes in the event they have been pre deceased by their spouse. It is little known, however, that if one passes with an asset in his name alone, with no beneficiary, if a spouse and children are left behind – the spouse will inherit $50,000.00 off the top, and the rest half to spouse, the other half to be divided among the children. Having a will in place would avoid that result (if it were unintended). Trust planning would also be important to review with these clients, whether they have a taxable estate and with trust planning can reduce estate taxes for children, or if they wish to plan ahead to avoid having to spend their assets on long term medical care.
For the younger generation involved in their working years, with children, spouses and aging parents, there is also a need for Estate Planning for the same reasons detailed above for the elderly, as well as summarized below.
The Power of Attorney and Health Care Proxy documents should always be in place- in the event you are ill or injured to the point that you cannot be involved in decision making regarding health or finances- even temporarily- without these documents in place, your family would have to take part in guardianship proceedings in court in order to be granted authority to act in your place. This can easily be avoided by completing these documents in advance.
Keep in mind, all assets owned at time of death that have a joint owner or beneficiary designation pass outside a Will to the person named on the financial asset or property. We see the need for estate planning when a young person passes with assets titled in his name alone- for example if the person died as the result of an accident or tragedy- there will be insurance proceeds and legal awards titled in the name of the deceased person. These assets would pass according to the Will terms, and if there were no Will, a young married person with young children under the NYS laws of intestacy, the first $50,000 and half would pass to a surviving spouse, the other half to children. If those children are minors, without a Will naming guardians, the children’s inheritance will not be fully available in most cases until they reach the age of 18.
Estate planning would serve to avoid the perhaps unintended result of one’s spouse inheriting just over half of the assets. A Will can also be written to name your preference for guardians for minor children- the persons of your choice to raise them were something to happen to both you and their other parent, as well as trustees to manage their inheritance until they reach the age of majority (18), or more, as decided by you and documented in your Will.
In addition to planning for our children who may still be minors in the event of our untimely demise, parents of disabled children have concerns for their disabled children, who will have a continued need for another to look after them, their money, and to avoid any government benefits being disrupted or jeopardized by inheritance. Estate planning with Wills and Trusts can make provisions for these circumstances as well.
Finally, being involved in your parents estate planning- particularly if you are or will be their caretakers- is beneficial to ensure that the proper documents are in place in advance. If your parents are open to discussing matters with you, and have not done any estate planning documents as yet, they should be encouraged to do so. Having a plan in place today can avoid stress and delays in assisting them if the need ever arises.
Please call our office if you would like to attend one of our upcoming seminars- Estate Planning for the Sandwich Generation- at 1-718-738-8500.
The contents of this article are in no way intended to be legal advice, are provided for educational and informational purposes only, and are directed only to those domiciled in the State of New York. Please feel free to call our office if you feel we can be of service to you. Our attorneys can be reached at Brady & Marshak, LLP, Attorneys at Law, and (718) 738-8500. This article may be considered an attorney advertisement.