You & Your Estate Lawyer Archives

The Battle of Winterfell: An Estate Attorney’s Payday

Posted on April 26, 2019

After turning down family plans for 70 Sunday nights, waiting more than 70 weeks for a new episode, and using nearly 70% of your brain’s computing power remembering all of the interpersonal relations in Westeros (could Hot Pie the baker actually be the Prince That Was Promised?), Game Of Thrones is almost over. But we are told the best is yet to come next Sunday when the Battle Royale Extraordinaire between the living and the Army of the Dead face off in Winterfell. And so, with only a few episodes left, facing what will likely be the greatest CGI human slaughter of all time, I am left wondering ONLY one thing: Why wasn’t anyone in Winterfell drafting their Will? If

Unsigned Wills Are Meaningless (and Photocopies are Not Much Better)

Posted on April 10, 2019

I like to remind people that the laws regarding modern U.S. Wills, not only predate the founding of the U.S., but actually predate European discovery of the Western Hemisphere. In Olde England in the city of York having a signed, witnessed piece of paper instructing how you wanted your property to be distributed after your death was often the only way to ensure your desires were fulfilled. Original paper mattered back then – there were no other recording devices or accounts with beneficiary designations – and witnesses would later attest to the fact they had seen you sign said paper instead of someone else. And original, signed paper still matters for several legal documents today, including your Will. The issue

The ONLY 5 Times You Should Leave Your Will with Your Lawyer

Posted on July 25, 2018

Ah, lawyers. That smarmy, cash-grabbing group of wordy professionals who somehow legitimately charge you in 15-minute intervals for one text message. And if you thought their tricks ended when you are dead, you would be wrong: Attorneys even know how to ensure they wring out one last retainer after you expire. When a person has their Will done with an attorney it becomes an excuse for the lawyer to say, “After all your thought and money, don’t you think it makes sense for me to hold onto your Will in case your family can find it when you die?” What the attorney was NOT telling you is that when you do expire they get the first chance at charging your

How to Write Your Own Eulogy

Posted on March 30, 2018

Only you can tell your story from your point of view. So, it comes as a surprise that many people have no written recounting of their life. In addition, it is sometimes easier to keep certain thoughts and feelings secret until you have passed away, but if you have taken no steps to memorialize how you want to deal with your loose ends, your unfinished business will remain unfinished. Remember the difference between a Eulogy and an Obituary: An Obituary is often an objective, somewhat-cold fact-based notice of your death; a Eulogy is a speech at your funeral meant to paint a picture of who you really were. A good Eulogy contains the following chapters: Origin: When

Life-Draining Probate? It’s Probably the Court’s Fault

Posted on March 14, 2018

There are many, many attorneys who are not experienced in handling New York Surrogate’s Court cases or qualified to handle anything except the easiest Probate. This article isn’t about them. This article is about how an agonizingly-long, Probate of a Will is most likely the Court’s fault. New York’s Surrogate’s Court used to be the Unified Court System’s neat china doll in a house full of dirty toys: Every clerk in every county was professional, smart and helpful (except Queens County, they were awful), Probates moved forward quickly, and questions were answered on the spot. Yes, certain counties did things “their way” (I.e. NOT the way the Surrogate’s Court Procedures Act outlines how Probate should be administered), but not

Should I Share My Will with My Financial Advisor?

Posted on February 26, 2018

And the answer is: No. Usually. See you next week. Okay, okay, I’ll elaborate. Your Last Will and Testament is a confidential document while you are alive. When you pass away your Will may be Probated in a court – at which time it’s contents are publicly available – so that your estate’s assets are properly distributed to your choice of beneficiaries. So only you and your lawyer have access to the contents of your Will. Disinherit your son? He can’t find out while you are alive. Have more assets than your family knows about? They shall continue to live in ignorance. Don’t trust third parties with access to your confidential information? No problem, nothing to see

Don’t Leave Money to Charity Using Your Will

Posted on December 28, 2017

Charities receive some of their largest gifts upon the passing of a benefactor. While this is a kind gesture on your part, if you live in New York you should leave money to your preferred charity using any method other than your Will. Probate is Annoying: Probating a Will requires New York’s involvement, meaning Probate can be an expensive, tedious and slow process. You will need to both place the charity on notice that they are a beneficiary under the Will, send them their funds, and procure a Release from the charity. All of this takes time, meaning an attorney is billing for all of this. Attorney General’s Involvement: As if New York’s courts weren’t inefficient enough for

College Kids in Trouble! Draft Your Child’s Health Care Proxy

Posted on July 14, 2017

Ah, the Ivory Tower, where high school kids aspire to escape to, and parents best hope for 4 years of peace and quiet. But with independence comes responsibility: Travel, driving, concerts, and protests. And drinking. Lots of drinking. And then comes a horrible injury or hospital admittance, followed by a parental realization: You are not allowed access to your adult child’s health care information, and cannot make decisions regarding their health care. In most states, the age of majority is 18, and once he or she moves out of his or her parent’s residence they are considered an adult with all of the privacy rights that inure to adults. The only individual who, by default, has access to

How to Choose an Estate Planning Attorney

Posted on September 23, 2016

You may have some idea of how an Estate Planning Attorney can help you (Wills, Powers of Attorney, Health Care Proxies, Trusts), but may not know how to choose one. In addition to the questions you would ask any service professional, here are some thoughts and questions you may want to consider prior to signing a Retainer Agreement with the attorney, who will help you establish your estate plan: EXPERTISE: Does the attorney primarily practice New York estate planning, or are they a general practitioner licensed in multiple states? If your estate planning needs are relatively simple (minimal assets, you are married in a first marriage without kids, no disabled relatives) a general practitioner may suffice. However, I have also seen some horrible Wills drafted by

Keeping Your Trust Private

Posted on July 22, 2016

As followers of my blog know, I am a proponent of passing property using a Trust instead of a Will. While a Will is a contract between the deceased individual and the State in which it is Probated, Trusts are contacts between the Creator and Trustee of the trust. Wills submitted to the Surrogate’s Court are public knowledge (as are the decedent’s assets), while Trusts are private documents. It is this last point that we are discussing here. In order to make a Trust “effective” you have to fund the Trust. The owner on the Deed is now “The John Doe Revocable Trust” (not “John Doe”); the beneficiary of the life insurance policy is likewise the Trust. An unfunded Trust is more effective

When to Contact Your Estate Attorney

Posted on July 15, 2016

Many people figure that once their estate planning documents are executed the estate planning process has ended. From the client’s perspective, several consultations have been attended and a lot of hours have gone into ordering beneficiary designation forms, real estate documents, and the like (unless the client went to an estate chop shop, in which case almost no time has been spent and the significance of the affair has not been realized). From the old school estate attorney’s perspective, the only financially significant moments of the process are during the drafting/execution phase, and entering Probate upon the client’s death, so follow-up appointments are viewed as a waste of time. I find this viewpoint to be both unfortunate and potentially hazardous to client and

NEVER Videotape You Executing Your Will

Posted on March 9, 2016

I must apologize for my prolonged absence from blogging: I lost my proofreading and Blogging Accountability Partner Alix Purcell due to her successes. I shall attempt to continue this part of our journey in her absence as best I can. I have heard of some attorneys videotaping clients executing their wills, and I have in fact once been a witness to another attorney executing a will while recording the execution of the document. Attorneys think recording the testator’s actions (thereby supposedly proving his or her mental capacity at the time of execution) will make it clear to a court that the person “knew what they were doing” (executing a will) at that time (a key requirement for a valid will).

Why Are Manhattan Estate Attorney’s Fees So High?

Posted on October 5, 2015

Lawyers are not cheap. Unless you hire someone from Legal Aid, you have to pay dearly for many types of attorneys. This is due to several factors: Greed, the horrible legal process we call the “Unified Court System” (a fancy-yet-inaccurate title), and the extreme difficulty New York places on small businesses being successful. First: Greed! Remember that most clients only participate in one or two Probates in their lives: Your second surviving parent and your spouse (if he / she predeceases you). You sell more cars than that in your life, and you probably did not know whether you got a great deal or not; Probate can be a MAJOR money moment, and due to the limited experience

When Should I (and Shouldn’t I) Have My Attorney Hold On to My Original Will?

Posted on September 21, 2015

An original will is a powerful legal document: It is almost always required to start a Probate proceeding, meaning that several estate plans could be confounded in its absence. This makes a will a very important document. The cynic in me gets extremely perturbed when I see an attorney presume possession of his client’s original will. This attorney is forcing the family to come back to him when the decedent dies, thereby getting a “second bite of the apple” by being in the best position to do the Probate. I have heard of 70 year old attorneys holding onto a 30 year old client’s original will, then the dying or going out of business before reuniting his client and

When to Begin Medicaid Planning

Posted on August 17, 2015

I have several prospective clients approach me to discuss Medicaid planning. They have typically just finished handling their own parent’s age-related issues (dementia, Parkinson’s Disease, etc.), and want their younger relatives to avoid the same kind of emotional turmoil and financial commitments when they age. Medicaid compliance requires a person to relinquish either assets or control over those assets, but many people in their 60s are just not ready to part with either of these. A large percentage of these individuals are not even retired and have yet to enjoy the best years of their lives in which they have the physical, mental, and emotional capacity to enjoy their free time. In many cases, their knee-jerk response is based on

Tell Your Estate Attorney About All of Your Assets

Posted on June 8, 2015

Some people are naturally secretive about their finances. People either feel judge by the level of their assets if they believe they don’t have enough, or they don’t trust anyone enough to say where all of their assets are. And so stock certificates are held in file cabinets, cash is stuffed in loose books, funds are held overseas, and random banks and passbooks hold small account balances. My message to you: Secrecy may cost you dearly when you pass away. Whenever you earn interest, the IRS receives a 1099 from the financial institution. When I have a recently deceased client whom I suspect has withheld account information (despite my urgings to let me know during her lifetime) I ask the

Give It Back! New York Turnover Proceedings

Posted on May 20, 2015

When a person passes away many people have a tendency of ransacking the decedent’s home and absconding with property. Co-Signers run to the bank to empty the safe deposit box (which they are NOT allowed to do in New York), people with access to the house take all types of personal belongings (so you know, the door locks should be changed immediately), and some people illegally use the decedent’s credit cards. Other people will accumulate mail containing financial information, then act as they see fit. Other times people will have an incapacitated person sign a Power of Attorney or blank checks, or even forge the signature. When that person dies the property that was supposed to go to one person goes to

Asking Your Attorney About “Wise” Investments

Posted on May 5, 2015

Attorneys have a reputation for “killing” more deals than they enable. In my experience this is a true statement: Several clients make haphazard investment decisions, such as signing contracts with “silent partners,” getting involved with high risk investments (my least-favorite: forwarding money for an independent film), or getting their feet wet with a new sure-thing-get-rich-quick scheme (i.e. flipping a home or entry into the rental real estate market). Several attorneys can share horror stories of clients break their backs and banks on these ventures. But the question that should arise is often overlooked by the client: Does the attorney actually have any qualifications or experience to condone or dismiss the investment cost? By their nature, most lawyers are good with

PROBATE: Beware the Court Clerk!

Posted on April 13, 2015

For those of you that missed it, my March 26th blog post spoke of the importance of being exceedingly nice to court clerks while initiating the Probate process. The clerk is (a) extremely knowledgeable as to how Probate works, (b) the gatekeeper and only individual who can begin the proceeding, and (c) a human being with feelings. As such, treat them with respect. That is not what this blog post shall cover. Clerks, like all people, are human beings and human beings are fallible. You have to understand and accept this fact, or your visits to the Surrogate’s Court will end in you wanting to drown your bad mood at the nearest Happy Hour. I have had clerks tell me

PROBATE: Be Nice to the Court Clerk!

Posted on March 26, 2015

When a person passes away, New York requires the Will and other paperwork be filed with a law clerk, in the Surrogate’s Court in the County in which the Probate Proceeding will be held. And while the Surrogate’s Court Procedures Act explains how such legal matters are supposed to proceed, each county is somewhat different as to how these requirements should be met. While these differences may frustrate an attorney unfamiliar with a certain county’s requirements, it tends to drive “Pro Se” participants (I.e. the “Do It Yourselfers” who are not attorneys) to the brink of insanity. And when people act irrationally, the administering clerk will likely transform from helpful to defensive. I was in one of these courts today

GUEST BLOG – Dr. Jomarie Zeleznik: An Elder Attorney is Holding the Umbrella

Posted on March 4, 2015

Doris is 97 years old and has lived in the same cozy apartment in the Bronx for 38 years. Every night she takes an elevator ride to her daughter’s apartment for dinner. Three other children live within driving distance and only her oldest son lives far away. In this family give and accept are done without the words “obligation” or “burden.” Doris saved for a rainy day in old age, and like many middle class people of her generation she also saved to leave something for each of her five children. I am told she reads her financial reports weekly and is still earning from wise investment choices. Many years ago, Doris set up five separate accounts in her own

Smart Ideas for Making Your Agents Known (When Needed)

Posted on February 24, 2015

Too many attorneys fail to inform a person’s Power of Attorney, Health Care Agent, or Executor that he/she has been named as a person’s agent or, even worse, fail to tell their clients to inform these people of their responsibilities. These practitioners appear to have the attitude of “I’ve been paid, you have your legal documents, let’s both move onto the next thing in our lives.” While this does not rise to the level of legal malpractice, it certainly is inconsiderate and potentially dangerous, for the following reasons: These documents are not public record. If there is an emergency, how is a Health Care Agent going to be identified by the admitting health care facility? The documents may be hard

“My Estate” is the WORST Beneficiary

Posted on September 30, 2014

Unless you own property jointly or in a trust, certain items of property have to pass through your Probate Estate (i.e. under your Will). The car or bank account solely in your name, stock certificates (an awful form of property), the family house you did not place in a Trust, your personal property, all pass under your Will. Or, if you don’t have a Will, through Administration under the “Laws of Intestacy.” However, some people make the misinformed decision to leave “operation of law” assets, such as retirement plans or life insurance, to their estate. Let me be very clear here: This is a BAD idea. The only reason someone would errantly do this is because they want court supervision of