|
|
|
|
 |
Q.
What does it mean to "probate" a will?
A. It means that a court (in New York State, the Surrogate's
Court) has decreed that a particular document is the last will
of a competent testator (the signer of the will), and that it
was executed in the manner required by law.
Q. What does dying "intestate" mean?
A. It means that an individual has died without a will.
Q. Can probate be avoided?
A. Yes, if all of your assets are:
(a) jointly owned with survivorship rights vested in
the co-owner
(b) payable on death to a named beneficiary.
Q. Are the proceeds of my life insurance
policies taxable?
A. They are not income taxable, but they may be subject to estate
or inheritance taxes unless all ownership rights are surrendered
during your lifetime.
Q. If my property is jointly owned,
will it be exempt from estate tax?
A. Generally speaking, no, unless there are no survivorship
rights between the co-owners, and then only your percentage
share will be taxed.
Q. If I die without a will, what happens
to my property?
A. Your property will be distributed among those heirs established
by the law at the time of your death, regardless of whether
you wanted all or any of them to receive assets. If you have
no heirs, your property will pass to the state.
Q. Even if I draw a will, can I leave
my property to anyone I choose?
A. Yes, as a general rule, except that a husband or a wife cannot
be completely disinherited. A certain percentage of your estate
- although not all - must be left to your spouse.
Q. Can my spouse be completely disinherited
under any circumstances?
A. Yes, if there is a divorce, or if there is a written agreement
whereby your spouse waives his or her inheritance rights in
your estate.
Q. Are there any particular requirements
for me to make a will?
A. The basic requirements are that you be 18 or older, and of
sound mind and memory.
Q. Should my will be notarized?
A. No. It should be signed by you in the presence of two witnesses,
who must then sign, as witnesses, in your presence.
Q. Is it possible for me to save estate
taxes and other expenses simply by executing a will?
A. Yes.
Q. What is a codicil?
A. It's a document - executed in the same way that you executed
your will - which in some way modifies your will.
Q. Can anyone contest my will when it's
offered for probate?
A. No, unless that person would stand to benefit financially
from the setting aside of your will. Generally speaking, only
your distributees (your heirs) or a beneficiary named in an
earlier will would have standing to contest.
Q. What's the difference between an
executor and an administrator?
A. An executor is a fiduciary chosen and named by you in your
will to collect and distribute your assets. An administrator
is the fiduciary named by the Surrogate's Court when you die
without a will. The functions of an administrator, broadly speaking,
are the same as an executor.
Q. Are executors and administrators
compensated for their services?
A. Yes, they receive commissions in percentage amounts set by
statute.
Q. How will my estate be distributed
if I die without a will?
A. Percentages will be allocated between your spouse and children.
If you have no children, your spouse gets the entire estate.
If you have no spouse, but have children, your children will
take the entire estate in equal shares. If you have no spouse,
no children, and no parents who survive your death, your brothers
and sisters (and, in some cases, their children) will take your
entire estate. It progresses accordingly, but the point is that
you have an absolute privilege to name your beneficiaries -
rather than having the state name beneficiaries you may not
want - simply by executing a will.
Q. Do I need a will?
A. Do you even have to ask? Since you did, the answer is yes.
Even if you don't have assets, your will may name a guardian
for your children.
Q. Do I need a lawyer to draw my will?
A. No one can force you to retain a lawyer, but what if you
or a non-lawyer draws your will improperly? When you die - that's
when your will becomes effective for the first time, and often
that is the first time it's seen by anyone - your estate may
be lost to inheritance taxes, or your will might be invalidated
in a will contest, causing your estate assets to pass under
the state's distribution laws. Most experienced lawyers will
regale you with accounts of totally defective do-it-yourself
wills . . . or do-it-yourself divorce judgments which never
divorced the litigants . . . or do-it-yourself contracts which
turn out to be unenforceable. Lawyers have an old saying: One
who represents himself, has a fool for a client. Don't put yourself
in that category.
Q. What is a trust?
A. It's a fund created during your lifetime (inter vivos trust)
or under your will, whereby the fund is set aside, "in trust,"
permitting you to name the beneficiaries to receive income and
the fund's principal at the end of a stipulated period.
Q. Do I need a lawyer to prepare my
trust agreement?
A. No, as long as you know the nuance differences between a
"marital deduction" trust, and a "QTIP" trust, and a "by-pass"
trust, and a "charitable" trust, and a "gift-to-minors" trust,
and a "dynasty" trust, not to mention inter vivos and testamentary
trusts.
Q. Does a trust save taxes?
A. It may, if it becomes an integrated part of your estate plan,
but, in the main, the then existing tax laws and solid advice
from an accountant and our firm are indispensable prerequisites.
Q. Is a trust the same as a living will?
A. No. A "living will," combined with a "power of attorney and
health care proxy," gives you the power to decide in advance
when you want to forgo artificial life-sustaining treatment
. . . resuscitators, respirators, and the like. A living will
may be drawn and executed at the time you execute your last
will and testament, but doesn't necessarily have to be.
|
|
|
