You need a Will in order to direct your assets to the persons and/or charities of your own choice, to appoint the Executors, Trustees and Guardians of your children you deem most suitable, to streamline and minimize the expenses of settling your estate, and, in some cases, to take advantage of strategies to minimize or avoid estate taxes. Wills are not just for the rich. Everyone should have a Will that accurately reflects their own choices and goals.

Your Executor is appointed to carry out the provisions of your Will. During your lifetime, the Executor has no authority whatsoever over your assets; but after you are gone, the Executor is the person (or it can be a bank or trust company) who will carry out the provisions of your Will, settle all debts and taxes you or your estate may owe and make sure that your intended beneficiaries receive all that they are entitled to. The most important qualities to look for when choosing an Executor are: Will they take the job seriously and act promptly and responsibly? Will they be respectful of my wishes and the persons I have chosen as my beneficiaries? Will they be able to carry out the necessary tasks? Will they make good choices regarding the professional they will hire to assist them? An estate planning lawyer at Carol L. Buell Law & Mediation, PLLC. can help you decide who best to select to serve as your Executor.

An Executor is appointed under a Will to carry out the terms of the Will up to the point of distributing the assets to your designated beneficiaries. A Trustee, on the other hand, may be appointed either under your Will, to hold assets for the benefit of one or more beneficiaries for some period of time after the estate has been fully administered, or under a Trust you create during your lifetime. The role of a Trustee is always to hold and administer assets for the benefit of someone else for a specified period of time or for a designated beneficiary’s lifetime. Our estate planning lawyer will help you decide who best to select to serve as your Trustees and whether individuals or corporate entities will best meet your objectives.

A revocable living trust is a trust that you establish for your own benefit during your lifetime and for the benefit of your chosen beneficiaries upon your death. For those whose estate plans would be enhanced by avoiding probate, a revocable living trust can be the ideal solution. However, there are costs and inconveniences associated with transferring assets into a revocable living trust, and some assets are not amenable to being held in such trusts. If you live in NY, our estate planning lawyer can help you decide whether a revocable living trust is a good choice for your particular situation.

In most cases, in the absence of a beneficiary designation, your life insurance or retirement account will pass to your estate and will be distributed as provided in your Will or according to the laws of your state if you do not have a Will. However, allowing such assets to pass in that manner may cause them to become unnecessarily subject to higher taxes or creditors’ claims or to become embroiled in a Will contest. Also, in some instances, the policy or account will automatically be distributed to your legal next of kin, regardless of the terms of your Will. The important thing is for your beneficiary designations to be consistent with your overall estate plan. Carol L. Buell Law & Mediation, PLLC. can advise you regarding the designation of appropriate beneficiaries and contingent beneficiaries.

A Power of Attorney is a document by which you appoint one or more to act on your behalf as your Agent. The term “attorney-in-fact” means the agent you appoint under a Power of Attorney. Despite the name, the person you appoint need not be a lawyer. A Power of Attorney is a powerful and very important document. Although we recommend that everyone execute a Power of Attorney so there is someone who can act on your behalf in a variety of circumstances, it is an important decision which should be discussed carefully with your attorney.

A Health Care Proxy is a document by which you appoint someone to make medical decisions for you in the event you are unable to do so for yourself. The person designated as your Health Care Agent should be someone who is not only close to you, but also someone who you can trust to understand and carry out your wishes regarding medical care and end of life decisions if ever called upon to do so. Designating a Health Care Agent does not limit your autonomy to make your own health care decisions. In fact, it increases that autonomy by providing for someone to express those wishes on your behalf in the event that you cannot express your wishes yourself.

You can, but you should first give careful thought to whether there are other people in your life who could effectively carry out those roles. A lawyer should never solicit an appointment as Executor, Trustee or Attorney-in Fact/Agent and should always encourage you to consider other possible choices before accepting such an appointment.

Generally no. The only person you cannot completely disinherit without their consent is a legally recognized spouse. Under New York law, a surviving spouse has an absolute right to receive at least one third of a deceased spouse’s estate unless there has been a voluntary waiver of that right, called a “right of election,” in a prenuptial agreement or otherwise. Otherwise, you are under no legal obligation to leave assets to anyone other than the persons and organizations of your own choice. However, you should be aware that when a Will is probated, notice and a copy of the Will must be sent to your legal heirs (i.e., the persons who would inherit from you if you died without a Will.) So, if you have reason to expect that your legal heirs may try to challenge your Will, you may want to use a revocable living trust instead.

Very few. Living together as domestic partners may create some rights, such as a right to stay in a deceased partner’s rent stabilized apartment or to make funeral arrangements. But living together even for a great many years, and even registration as domestic partners, will not create any property rights or inheritance rights. That is why it is especially important for couples who are not married to have well crafted estate planning documents in place.

Probate simply means the process of submitting a deceased person’s Will to the court to have it declared valid and to have the court confer upon the designated Executor(s) (and any designated Trustee(s)) full legal authority to act on behalf of the Estate. Once the court has issued the probate decree, which typically occurs in a matter of weeks unless there are special issues to be addressed, that is the end of “probate.” Nevertheless, the term is often misunderstood to mean the entire process of administering an estate, which includes gathering the deceased person’s assets, settling all outstanding debts and taxes, disposing of the contents of the deceased person’s home, having assets appraised, selling any real property or other assets that need to be sold, filing estate tax returns (if required) and paying any applicable estate taxes, accounting to the beneficiaries and, finally, distributing the assets of the estate to the designated beneficiaries. It is important to distinguish between the relatively finite procedure of probating the Will from the more protracted and time consuming tasks of administering and distributing the estate. Avoiding probate may be desirable to minimize the possibility of challenges by disinherited relatives or to avoid the need for multiple probate proceedings for estates that include real estate holdings in multiple states or for a variety of other reasons. But avoiding probate will not avoid the necessity of carrying out most of the tasks of administering the estate and will not, by itself, avoid estate taxes or other obligations. If you are a NY resident, our estate planning lawyer can advise you regarding whether or not probate of your Will could present any problems or consequences that would make it undesirable and how best to avoid or minimize the need for probate.

These are major decisions that can have enormous consequences, both good and bad. You need personalized legal advice in order to avoid unintended tax, financial and legal consequences and to ensure that the results are as you both fully understand and intend them to be.

As joint tenants or as tenants-in-common?

Deciding how to hold title to real property or a coop is an important decision for alternative families. Joint ownership of an asset ensures that the asset will automatically pass to your loved one upon your death, whether you have a Will or not. However, if your initial contributions are not equal, you may need a property agreement which clearly indicates how the asset will be divided if you were to break up.

If you and your partner have jointly owned an asset as for many years, it is important to track each of your initial contributions (as well as your ongoing share of expenses, such as mortgage payments, capital improvements and real estate taxes so that clarity regarding equitable proportionate shares of estate taxation is achieved.

It is important to seek the advice of attorneys as well as financial experts when purchasing or financing a coop or condominium in NYC. Making this type of investment requires great care, as you are not only purchasing a home, but investing in a particular building as a unit owner or tenant shareholder. You will want to know if the building is well maintained, effectively managed, and whether there are any quality of life issues within the building which can be ascertained through a careful reading of corporate minutes. Referrals your attorney can make to experts such as engineers or mortgage brokers could mean the difference between a good investment and a disastrous one.

While the courts require you to be represented by an attorney, (there are legal fees and home study fees and other nominal charges), the good news is that many parents can utilize the Federal Adoption Tax Credit to reduce or even sometimes eliminate the cost of a second parent adoption. Call Manhattan attorneys Weiss, Buell & Bell for more information or speak with your tax adviser.

Gay adoption, also known as second parent adoption consists of many steps, most of which can be started before the birth of a child. If you are pregnant and have entered your second trimester, we can meet with you to discuss the steps involved and connect you with social workers to conduct a home study and get you through the majority of the paperwork before the birth of your child.

New York State and the City of New York will recognize your marriage and put your spouse’s name on your child’s birth certificate. As of January 1, 2010 policies and procedures have been implemented to make this a seamless procedure in the hospital. However, a second parent or gay adoption is still critically important until each state and the federal government recognizes your right to marry and all rights which flow from that marriage, including the right to be a parent to any child born to you or your spouse while your are married.

Do we need to do a second parent adoption?

While surrogacy is illegal in New York State, many couples create their families using Assisted Reproductive Technologies (ARTs) in other states and return with their child to live in New York. Regardless of the documents you have which were prepared in that other state, you may need more protection now that you are home. It is critically important that you consult a local attorney because the laws with respect to ARTs vary from state to state. An Order of Parentage may not protect your family in the way an adoption would.

In New York State, one has to tread very carefully in this area because there is no statutory support for these types of self-created family structures, and in the few reported court cases, have treated known donors as a legal parent with all the rights and obligations of parenthood. A consultation with an attorney is critical for all parties.

The law and public policy in New York State will only consider what is in the best interests of the child. Careful advice and drafting of agreements is a must if you are thinking about helping someone in this manner. And if you would like to raise the child together with the couple, or be a parental figure for the child, the written agreements setting forth your arrangements with respect to custody and visitation are critically important.

Are they right?

They may be right. A carefully drafted prenuptial agreement, written by an attorney who is an expert in the legal and tax implications of marriage, (and the disparity in treatment between same sex couples and other sex couples), is very important. At the very least, consulting an attorney knowledgeable in this area prior to your marriage is critically important. You may decide a prenuptial agreement isn’t necessary, but understanding the rights and benefits you currently have (and the rights and benefits that are still beyond our reach) is important.

It is not too late for a prenuptial agreement, but a carefully drafted document which acknowledges your current financial arrangements with your soon to be spouse, as well as setting forth your agreements regarding future earnings and assets, is critical. An attorney knowledgeable in this area will ask careful questions to determine how you feel about your finances and how you would consider them upon your dissolution. Why leave yourselves open to a battle when you can set forth in writing what your wishes are in this area. The law continues to be dynamic and careful tax planning is key in order to protect and preserve your assets, and clarify your intentions.

Congratulations and very best wishes. If you are serious about setting down your wishes with respect to your assets, future earnings, and whether the rights and benefits of marriage are to be preserved and protected or shaped and adjusted to reflect your own personal goals and wishes, do not delay in consulting with a knowledgeable attorney.

We tried mediation but every time he/she gets mad at me he/she claims I have no rights in NY. Can you help me?

It is admirable that you are trying to work out your differences when the laws in NY State are so hostile to your family. If your partner is willing to work out a negotiated custody support and visitation agreement, but fear and anger are getting in the way, collaborative law may be the answer. Collaborative law focuses on interest-based negotiations between the parties and their attorneys. If necessary, mental health professionals, financial coaches, or child custody experts are brought into the process to assist the parties to come up with workable resolutions that fit the needs of the parties and their children.