NY Estate Lawyer | NY Probate Lawyer | NY Wills, Trusts & Estate Lawyer | NY Surrogate’s Court Lawyer

The Law Offices of Michael W. Goldstein representing clients in preparing:
•Wills
•Trusts
•Living Wills and Health Care Proxies
•Powers of Attorney

Surrogate’s Court Proceedings & Litigation

Our experienced NY Estate Lawyer represent clients in Surrogate’s Court proceedings including:
•Estate Administration
•Estate Probate
•Guardianship of Minor Children
•Surrogate’s Court Orders Removing Restrictions on Limited Letters of Administration
•Court Approval for Wrongful Death Settlements
•Will Contests
•Surrogate’s Court Litigation

Last Will & Testament (Will)

In order to avoid having your assets upon death be distributed according to the New York laws of intestacy, we recommend that New York State residents have a New York Wills Attorney or New York Estate Attorney prepare a Will (“Last Will & Testament”). It is also important that the Will be properly executed in accordance with New York law.

Dying without a legally enforceable Will may result in your assets (other than those held jointly, or as tenants by the entirety, or containing a designated beneficiary) being inherited by relatives who were not your intended beneficiaries.

Your Will should also be reviewed periodically, to be sure that it accurately states your current intentions.

A valid New York Will can direct how your property will be distributed when you die. This may include specific bequests of cars, jewelry, art work, house, condominium, land, co-op apartment, bank accounts, stocks, bonds, investments, and other property. The Will can also direct how the remainder of your property will be distributed upon death.

Your Will should also name of the person who you want to be the executor of your estate to distribute your assets after you die. The Will may also designate a guardian to take care of your minor children. The Will may also designate a guardian or conservator to care for an adult or child with a mental disability.

Keep in mind that New York law has strict requirements for Wills, including the formalities of how the Will is executed. If the New York statutory requirements and procedural formalities are not followed, a relative who did not receive the bequest he or she had expected might have a basis to contest the Will. Even if the Will contest is defeated by the estate’s executor, the estate may incur significant legal expenses and delay in distributing the estate’s assets. To be confident your Will is valid, we recommend you have your estate documents reviewed or drafted by our experienced NY Estate Lawyer.

Trusts

A trust is a useful tool to provide restrictions on when or how money that you give as a gift during your lifetime is spent. Similarly, a trust created in your Will may provide instructions on who receives the trust assets, and restrictions on when or how the money is spent. This is useful in various circumstances, especially if the beneficiaries are minor children.

The person who creates a trust is called the “grantor”of the trust or the “settlor” of the trust.

A trust may provide for payment of income or distributions of trust assets to beneficiaries of the trust. The distributions may be specified in the trust, or may be determined in the trustee’s discretion. The trustee holds the trust property and is legally required to follow the provisions of the trust regarding the use of the trust property for the benefit of the beneficiaries.

A trust can be created during the donor’s lifetime (inter vivos trust) or in your Will (testamentary trust) The “grantor” or “settlor” or “creator” is the person who creates the trust The “trustee” is the person named in the trust to manage and distribute the trust assets. The trustee has a “fiduciary duty” to follow the terms of the trust document, and to manage and distribute the assets of the trust for the benefit of the beneficiaries.

Testamentary Trust

A Testamentary Trust is created by the terms of the grantor’s Last Will and Testament (“Will”). Therefore, the Testamentary Trust becomes effective when the person creating the trust dies. At any time prior to the grantor’s death, the grantor may change his or her Will, and therefore may modify the terms of the Testamentary Trust, or eliminate the Testamentary Trust entirely. The validity of a Testamentary Trust depends upon the validity of the Will that creates the trust. Therefore, if the Will was not properly drafted or executed, and is held invalid by the Surrogate’s Court, a Testamentary Trust created in the Will is also invalid.

We strongly recommend that a New York Will be drafted by an experienced New York Wills, Trusts & Estates lawyer, and that the Will be executed under the supervision of a New York Wills, Trusts & Estates lawyer. This will help ensure the validity of the Last Will and Testament, as well as any Testamentary Trust created in the Will.

Living Trust

A Revocable Living Trust (also known as an “Inter Vivos Trust” or “Family Trust”) is created during the lifetime of the “grantor.” The Revocable Living Trust may be changed at any time by the grantor, who may even cancel the trust and retake ownership of the trust assets. In a Revocable Living Trust, the grantor is often the trustee during his or her lifetime, and may also be a beneficiary. The Living Trust contains directions to the trustee regarding the management and distribution of the trust assets.

Unlike assets owned by a decedent at the time of his or her death, assets of a Revocable Living Trust do not require a probate or administration proceeding. Therefore, the assets of a Revocable Living Trust may be distributed to the named beneficiaries after the grantor’s death without a probate or administration proceeding. Therefore, a living trust may enable the decedent’s trust beneficiaries to avoid the substantial delays and fees incurred in probating a Will in the New York Surrogate’s Court.

If all of the decedent’s assets are held by a Living Trust, a Surrogate’s Court proceeding would probably be unnecessary. However, since many people who have a Living Trust also own some assets in their name, it is generally recommended that a Will also be executed, in order to state the decedent’s instructions for the distribution of any assets that are not held by the trust or owned jointly with another person. If there is no Will, any assets not held by the trust or owned jointly with another person, would be distributed in accordance with the laws of intestacy. Since this result may not be what the decedent intended, it is generally recommended that a Will be executed, in addition to a Revocable Living Trust.

Living Will

A Living Will states your instructions regarding your medical treatment in the event that you become mentally or physically incapacitated. For example, it may state whether you want to be maintained on life support, even if you are unconscious and there is no possibility of recovering from your illness. It may also state whether you want to live at home or in a hospice during the final stages of a fatal illness, as well as whether you want to donate your organs after death. A Living Will must be executed in conformity with the requirements of New York law.

Health Care Proxy

A health care proxy designates a trusted relative, friend, etc. to make health care decisions for you. A health care proxy must be executed in conformity with the requirements of New York law.

Power of Attorney

A New York Power of Attorney is an extremely powerful and potentially dangerous document. It may authorize a trusted relative, friend or other designated person to act on your behalf to complete one or more financial transactions, or other matters. The Power of Attorney can be unlimited in scope, or it can be limited to only certain types of transactions, or even to only one specific transaction. We believe that a New York Power of Attorney should be carefully drafted by an experienced New York lawyer to grant only the powers needed to enable the agent (attorney-in-fact ) to carry out the desired transactions or intentions of the person granting the Power of Attorney.

A Power of Attorney can be useful when a principal in a real estate or business transaction is unable to be present, when legal documents need to be signed. For example, if the purchaser or seller of a house, co-op apartment, condominium apartment, commercial property, land, or a business is unable to attend the closing for that transaction, a power of attorney can authorize another person to sign the legal documents on behalf of the principal.

Durable Power of Attorney

A Durable Power of Attorney may be effective immediately and furthermore will remain in effect even if the person who signs the Power of Attorney becomes mentally or physically incapacitated.

Springing Power of Attorney

A Springing Power of Attorney may only become effective upon the occurrence of a specified event or circumstance, such as if the principal become mentally or physically incapacitated. The Springing Power of Attorney enables financial matters to be carried out on behalf of a principal who becomes mentally or physically unable to take care of his or her financial matters, whether temporarily or permanently.

New York Terminology Regarding Powers of Attorney

The person granting the power to act under the Power of Attorney is the “principal” (previously the “donor”). The principal must be at least 18 years old. The person named to act on behalf of the principal is the “attorney-in-fact” or “agent”. This does not mean that the person is actually an attorney. A Power of Attorney may provide for alternate agents in the event that any of the agents named in the Power of Attorney are unable or unwilling to assume the designated responsibilities.

A New York Power of Attorney may be revoked at any time by the principal during his or her lifetime, however a revocation will not affect actions already taken by the agent prior to the revocation.

Comparison of Power of Attorney and Last Will and Testament

A New York Power of Attorney is only effective during the lifetime of the principal. The New York Power of Attorney automatically terminates upon the death of the principal. Therefore, do not make the mistake of believing that a Power of Attorney can take the place of a Last Will and Testament (“Will”.)

In contrast, the Last Will and Testament (“Will”) only becomes effective upon the death of the testator (person signing the Will.)

Estate Administration or Estate Probate

When a loved one dies, in addition to grieving the tragic loss, the family will need to deal with administering or probating the estate. The Law Offices of Michael W. Goldstein is able to take that burden off your shoulders.

If the person who died (“decedent”) had a valid Last Will and Testament (“Will”), and owned assets in the decedent’s name without a co-owner or designated beneficiary, the estate will need to be probated in the New York Surrogate’s Court in the county where the decedent resided. If the decedent died intestate (without a valid Last Will and Testament), and owned assets in the decedent’s name without a co-owner or designated beneficiary, the estate will need to be administered in the New York Surrogate’s Court in the county where the decedent resided.

Ancillary Probate or Ancillary Administration

If the person who died was a primary resident of New York State, and owned property in both New York and in another state, it may be necessary to probate or administer the estate in New York, and also to file an ancillary probate or ancillary administration proceeding in the other state. Similarly, if the person who died was a primary resident of another state, and owned property in both New York and in that other state, it may be necessary to probate or administer the estate in the state of the decedent’s primary residence, and also to file an ancillary probate or ancillary administration proceeding in New York.

Specific Requirements for the Execution of a New York Will

New York State law contains specific requirements for the execution of a New York Will. These requirements include specific formalities for how the Will is executed in the presence of the witnesses, the number of witnesses required, and requirements for Witnesses’ Affidavits,

The requirements for the execution of a New York Will serve several purposes, including safeguarding the rights of the testator to sign a Will that expresses his or her instructions regarding the distribution of the testator’s assets after his or her death. The New York formalities for the execution of a Will assist in preventing fraud by a beneficiary under a Will executed under physical or emotional duress, or while the testator is not mentally capable of expressing his or her true intentions.

Will Contests

When a party claims that a Will was executed under duress, or when the testator was not of sound mind, or otherwise unable to accurately express his or her desires regarding the distribution of assets after death, the party making that claim is contesting the validity of the Will.

A New York Will Contest is a legal proceeding in the Surrogate’s Court challenging the validity of the decedent’s Will.

The person contesting the Will provides evidence to the court showing that the Will was not executed in accordance with New York law, or that the Will was executed under duress, or was fraudulently executed, or that the testator lacked the required mental capacity to execute a valid Will.

The proponent of the Will (person claiming that the Will is valid) offers evidence showing that the Will was validly executed in accordance with New York law, and that the testator was not under any duress, and that the testator possessed the required mental capacity to execute a valid Will.

If a Will Contest is successful, the decedent’s property would be distributed either in accordance with the terms of a previously executed valid Will, or as if the decedent died intestate (without a valid Will.)

If you are involved in a New York Will contest, contact our firm to discuss the circumstances of the Will contest, so that we can determine whether we can represent you. We represent people in New York Will contests, including the proponent of the Will, as well as the person claiming that the Will is invalid.

Contact Us

We invite you to complete our Wills, Trusts & Estates Questionnaire, or click Contact Us, or call us to discuss how our office can assist you with the preparation of a Will, Trust, Living Will, Health Care Proxy, or Power of Attorney, or with an estate probate, estate administration, or Will contest.

New York Wills, Trusts & Estates Lawyer Disclaimer

Visiting our website, submitting any information via questionnaire or email, or discussing your case with us does not create an attorney-client relationship. An attorney-client relationship with our law firm can only be established with the signing of a written retainer agreement prepared by our law firm.

Prior results do not guarantee or predict a similar outcome with respect to any future case or legal matter.

This website is not intended to solicit clients for preparation of a Will, Trust, Living Will, Health Care Proxy or Power of Attorney outside of New York State, or for the probate or administration of an estate outside of New York State, or for a will contest outside of New York State.

The information in this website is not intended to constitute legal advice, nor to create an attorney-client relationship or lawyer-client relationship. We recommend that you discuss your New York will, trust, living will, health care proxy, power of attorney, estate probate, estate administration, or will contest with a New York Wills, Trusts and Estates lawyer promptly.

Michael W. Goldstein is a New York Wills, Trusts and Estates Lawyer representing clients in Wills, Trusts, Estate Probate, Estate Administration, Living Wills, Health Care Proxies, Powers of Attorney, and Will Contests.

New York Wills, Trusts and Estates Lawyer representing clients in New York City, Manhattan, Bronx, Brooklyn, Queens, Staten Island, Long Island, Nassau County, Suffolk County, Westchester County, Rockland County and upstate New York.

Law Offices of Michael W. Goldstein

NY Estate Lawyer

New York Probate Lawyer

New York Wills, Trusts & Estate Lawyer

New York Surrogate’s Court Lawyer

299 Broadway
Suite 800
New York, New York 10007
Phone:(212) 571-6848
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