FREQUENTLY ASKED QUESTIONS

What's the easiest estate planning device?

Giving away $11,000 per year to any person. The government allows you to give away a maximum of eleven thousand dollars to as many people as you like (family memembers or not) per year. If you're married, you may give away $22,000 to each person from you and your spouse).

What's the effect of transferring more than eleven thousand dollars to another person?

Filing a Gift Tax Return is required in the year you give away the excess amount (over eleven thousand dollars). However, no tax is due until you have given away more than $1 million dollars.

How much do you charge?

An average will costs about $1,500.

Are you flexible with your fees?

I am flexible if I am dealing with someone who clearly is not able to afford my average fee.

What does the fee include?

A will, a power of attorney a health care proxy and a medical directive and an affidavit of guardianship and cremation, if applicable.

What the easiest way to avoid a possible will contest?

Go to a lawyer to prepare your will and make sure he/she knows about all of your net worth and what problems you foresee as potential issues, (such as litigious family members because of jealousy, hate, major family breakups, etc).

What is an inter vivos (revocable or living) trust?

A transfer of assets (some or all) into a separate account while you are alive which, you control for as long as you are alive. By control, it also means that you can end it anytime.

What is the advantage of a living trust?

In the event you get sick, the successor trustee you appointed takes over. Everything continues normally without court intervention. Upon death, there is no necessity to go to court to probate your will in order to transfer your assets because all your assets have been placed into a trust. However, ALL of your assets must have been transferred into the trust while you were alive. It is also harder to contest the transfers authorized in the trust because there is a heavier burden of proof on the part of the objectant.

Is avoiding probate a good enough reason to set up a living trust?

No. Probate is not a big deal in New York State. It also does not take a lot of time to go through the court process, sometimes as little as a week, if all family members comply. The most it could cost in court fees is $1,000. You would also need to hire an attorney to probate the will. But you would still need an attorney to prepare a living trust, so that ends up being a wash. There need to be other reasons to create a trust, such as a strong concern of someone objecting, who either has reason to object or has deep pockets and/or just wants to aggravate your proposed executor. If you know that finding your closest living relatives will be a problem, setting up a revocable trust is a good idea.

Why is a will often a sufficient reason to protect your assets?

A judge will never break up the terms of a will without due cause. The only reason there could be due cause is if someone files objections to the will. The only reason someone can file objections to a will is (1) if it appears, that the testator was under duress or undue influence at the time he signed the will, (2) he was not of sound mind at the time he signed the will (i.e. he was medicated and unaware of what he was signing) or (3) the will was not executed properly. In the event that someone in your family filed objections, there is no way the judge will allow the case to be heard without proof, on the face of the will, that there was a likelihood of either of these three possibilities. But having said that, inasmuch as an inter vivos trust would put an even heavier burden on the potential objectant to prove undue influence in a contentious (i.e., litigious) family setting, I would encourage an irrevocable trust just to avoid possible litigation.

Why is writing a will so important?

The Surrogate Court Procedure's Act sets up rules of intestacy as to what family member gets to benefit from the decedent's estate. For example, if the decedent left more than $50,000, the estate splits any amount over $50,000 between the surviving spouse and the children. The result would be that the children receive their share in trust and outright when they are 18, whether or not they are mature enough to handle money at the age.

If I have less than $50,000, why should I write a will?

The beneficiary of your assets will be in accordance to the rules of intestacy and the person who matters most to you will not receive whatever assets you have (unless of course, it matches the SCPA rules of intestacy). Secondly, if you have children, you can attach an Affidavit of Guardianship to your will, which will give the judge information as to who you want to be appointed guardian for your child(ren). At a minimum, it puts the judge on notice. Thirdly, a will allows you to think of the charities that mattered the most to you and make them a whole or partial beneficiary of your estate.

This is the tip of the iceberg as to questions and issues that arise in estate planning. If I've piqued your interest on the subject, I'm glad. In the right hands, this can all be taken care of quickly and easily. It will require you, however, to focus in on the most personal and intimate issues for a short amount of time. Knowing that you've left a legacy (no matter what the size) and taken the necessary steps to leave them to the people that mattered most to you or to those that needed it the most, will make you feel good about yourself. It's a guarantee! My goal is to satisfy my clients' needs and make them feel comfortable in getting them through the process. (I've enclosed some notes from satisfied clients in Articles section of this site.)

I look forward to hearing from you.