A will is a document outlining your final wishes for your estate. In order to ensure your will is valid and your wishes honored, you must follow certain rules.
Attorney Thomas B. Burton answers a reader question involving estate planning and long term nursing home care where the mother's home was sold to pay for the mother's nursing home care.
Removal of a Fiduciary However, many situations are not as straightforward as the grounds listed in SCPA § 719. While you may be working with a fiduciary that does not act in the manner that you wish, oftentimes, the conduct does not rise to the standard that would warrant their removal. Courts have held that the removal of a fiduciary pursuant to SCPA §719 is equivalent to a judicial nullification of the testator's choice and can only be done when the grounds set forth in the statutes have been clearly established. The Court may remove a fiduciary without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding. Requirements for Removal Pursuant to SCPA § 711 a person interested may petition the court to remove the fiduciary. Some of the grounds listed in the statute include: that the fiduciary wasted or improvidently managed property; that the fiduciary willfully refused or without good cause neglected to obey any lawful direction of the court; or the fiduciary does not possess the necessary qualifications by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office. Again, while there are many cases where fiduciaries have behaved badly, courts are generally hesitant to remove fiduciaries unless the assets of the estate/trust are put at risk. Not Breaches are Created Equal Even though you may be unhappy with the conduct of a fiduciary, not every breach of duty will result in the removal of the fiduciary. Many breaches can be addressed in an accounting proceeding either through surcharge or denial of commissions. While a fiduciary can be removed if conduct that violates SCPA § 711 or § 719 can be proven, it is often a lengthy and expensive process that involves the exercise of discretion by a court that is hesitant to remove a fiduciary chosen by the testator. Removal Proceeding A proceeding to remove a fiduciary should only be undertaken if it can be proven that the assets of the estate/trust are in danger under the fiduciary’s control. Mere speculation or distrust will not be enough to remove a fiduciary. If you believe that the fiduciary of an estate or trust is not managing the estate or trust properly, you should consult with an attorney experienced in estate administration matters that can review the facts and determine the best course of action.
Marriage or Divorce The last thing you may want is your ex-spouse inheriting your assets. The good news is that if you signed your Will prior to your divorce, Connecticut law provides that your spouse forfeits their right to inherit under your Will and also forfeits their right to serve in a fiduciary capacity (ex. executor, trustee, etc.). However, this law may be superseded by your divorce decree and may also not apply to any financial accounts on which you may have named your former spouse as the primary beneficiary (ex. retirement accounts, life insurance policies, etc.). For these reasons, it is highly recommended that your estate plan be reviewed by an estate planning attorney following a divorce. Alternatively, if you’ve just gotten married, chances are you had previously named your parents or siblings as the beneficiaries of your estate plan. With a new spouse in the picture, it likely makes since to update your estate plan to name your spouse as the primary beneficiary. Births or Deaths The birth of children can greatly impact your estate plan, and it may not be as simple as just naming them as beneficiaries. You may wish to establish a trust for their benefit to prevent them from receiving a large inheritance while they are still young and/or financially immature. You may also wish to consider appointing a guardian for your children should you pass away when they are still minors. Grandparents may likewise wish to make specific bequests to their new grandchildren to assist with paying for college, buying a home, or other major life events. The death of any individuals named in your estate planning documents should also be addressed. For example, if you’ve named your spouse as the primary beneficiary under your Will and your spouse has predeceased you, you should confirm that your Will provides for alternate beneficiaries, such as your children. You should also confirm that you have named an alternate executor in the event you had chosen your spouse to serve in that capacity. Change in Your Financial Situation Have you received an inheritance from your parents or gotten a substantial raise at work? If so, the primary question on your mind may be how to invest your newfound windfall. However, consideration should also be given to how this change in your finances may affect your current estate plan. Now that you have more assets, you may wish to include bequests to your favorite charities or your alma mater in addition to providing for your family. Alternatively, what if you have been forced to spend down the bulk of your assets on long term health care costs? If your prior Will made bequests to several individuals (ex. $10,000 to each of my grandchildren), there may no longer be enough money in your estate to fund these bequests. Passage of Time Even if there have not been any major changes in your life, the passage of time alone may make a review of your estate plan necessary. Firstly, over time laws can change. It is important to ensure that your documents are in line with any new laws that may have been implemented by the state or at the federal level. For example, Connecticut recently enacted new laws increasing the amount of the Connecticut estate tax exemption. If you executed a Will or Trust several years ago when the estate tax exemption was much lower, your documents may include a substantial amount of complicated provisions designed to avoid payment of potential estate taxes that are now no longer necessary. With the newly increased estate tax exemption, it may be possible to eliminate such complicated provisions and simplify your estate plan. Secondly, the more recent your documents, the less likely you will have any issues with their acceptance. For example, as a general rule, it is advisable to update powers of attorney and health care directives every five years. While the documents themselves never expire, hospitals, banks, or other financial institutions are sometimes reluctant to accept these documents when they have not been updated in several years. If your documents were executed many years ago, they could be considered “stale” and may not be immediately accepted. Periodically updating these documents can avoid any such potential staleness issues. In the end, it is important not to view estate planning as something you only do once. It is an ongoing process that will periodically require updates and revisions. So don’t just “set it and forget it.” Instead, set it and revisit it every few years. It may not be as catchy of a slogan, but it will ensure your estate plan keeps pace with your ever changing life.
The Law Office of Inna Fershteyn & Associates has been providing NY’s leading estate planning, Medicaid fraud, and asset protection services for over 20 years. With over 195 five star reviews, you can be confident that you’ll receive the highest quality representation available. 1517 Voorhies Avenue 4th Floor Brooklyn, NY 11235 (718) 333-2394 https://brooklyntrustandwill.com/cont... For more information about our firm: https://BrooklynTrustAndWill.com/ Our practice areas: Medicaid Fraud, HRA fraud, SNAP fraud, Wills and Trusts, Estate Planning, Elder Law, Guardianship, NY Will Probate, Fair Hearings Music from https://filmmusic.io "Touching Story" by Kevin MacLeod (https://incompetech.com) License: CC BY (http://creativecommons.org/licenses/b...)
New York Law on Posthumously Conceived Children (“PCC”) According to New York law, a child born after the death of a genetic parent will be deemed a child of that parent if the following conditions are met: 1. The genetic parent, in a written document signed not more than seven (7) years before his or her death, (a) expressly consented to the use of the genetic material for posthumous reproduction and (b) authorized a person to make decisions about the use of the generic material after the genetic person’s death; 2. Within seven months of the issuance of letters, the authorized person must give notice of the existence of the stored genetic material to the personal representative of the genetic parent’s estate; 3. The authorized person must record the writing in the Surrogate’s Court within seven months of the genetic parent’s death; and 4. The genetic child must be in utero within 24 months or born within 33 months of the genetic parent’s death. If these requirements are met, then a PCC will be considered a child of the genetic parent for purposes of gifts to children, issue, descendants and similar classes in instruments executed by the genetic parent or other individuals. In the event of divorce, the authority under the written instrument signed by the genetic parent is automatically revoked. Connecticut Law on Posthumously Conceived Children ("PCC") According to Connecticut statute, a PCC is deemed to have been born during the deceased genetic parent’s lifetime if the two following requirements are met: 1. The decedent, in a writing signed and dated by the decedent and the decedent’s spouse, specifies that genetic material may be used for posthumous conception; and 2. The PCC is in utero within one year of the decedent’s death. The spouse must also give a copy of the signed writing described above to the estate fiduciary with in the later of 30 days of death or appointment of a fiduciary. However, the failure to do so will not prejudice the rights of the PCC.
Client review of Brooklyn's best estate planning lawyer. If you need estate planning done, then come to a professional attorney and receive the best Elder law and asset protection advice. Attorney Inna Fershteyn is NY’s top estate planning and asset protection firm. Inna Fershteyn has over 22 years of practice and has over 195 positive reviews each review addressing amazing client experience received in our law office. If you need an estate planning attorney in NY, contact our office at: 1517 Voorhies Avenue 4th Floor Brooklyn, NY 11235 (718) 333-2394 https://brooklyntrustandwill.com/cont... For more information about our firm: https://BrooklynTrustAndWill.com/ Our practice areas: Medicaid Fraud, HRA fraud, SNAP fraud, Wills and Trusts, Estate Planning, Elder Law, Guardianship, NY Will Probate, Fair Hearings Music from https://filmmusic.io "Perspectives" by Kevin MacLeod (https://incompetech.com) License: CC BY (http://creativecommons.org/licenses/b...)