Landskind and Ricaforte Law Group’s New York Estate Planning Checklist
An estate plan can protect your peace of mind and your heirs’ inheritance. However, laying the foundation of a solid estate plan isn’t always easy. Simply getting started can pose challenges.
You don’t have to delay or compromise on the quality of your estate plan. The Landskind and Ricaforte Law Group, P.C., has spent decades helping New York City families find solutions that fit their needs and reflect their values. Read more to learn about the essential elements of every estate plan, or contact us today to schedule your initial consultation.
1. Draft Your Will
A last will and testament lies at the center of almost every estate plan.
Simply put, a will is a legal document used to detail your preferences for succession. By writing a will, you can make critical decisions about how different responsibilities, assets, and properties should be divided after your death.
Your will can be simple or complex, and it can serve many different purposes. These include, but are not limited to, the following:
- Naming heirs and beneficiaries. You can use your will to name heirs and configure their individual inheritances.
- Nominating an executor. Your executor is the person responsible for administering your estate after you pass away. Executors have many duties. They must file the initial petition to open probate, create an inventory of your assets, and pay off whatever debt your estate may owe before distributing inheritances.
- Designating a guardian for your children. If you have children, then your will lets you name a guardian to provide for their care if you are incapacitated or killed before they become adults.
Writing a will is also one of the few ways to avoid “intestacy.” Without a will or other estate planning documents, the rules of intestacy are applied, and the court will likely have no choice but to make inheritance decisions on your behalf.
2. Prepare Powers of Attorney
A “power of attorney” is a legal authorization that lets another person act on your behalf if certain conditions are met. This person is termed your “agent” or your “attorney-in-fact.”
Different powers of attorney serve different purposes. These include:
The Medical Power of Attorney
The medical power of attorney ensures that your medical care preferences are respected if you are ever seriously injured or incapacitated.
Your authorization can include instructions on what should happen if:
- You are in a coma
- You have been diagnosed with a terminal illness and are not expected to recover
- You have Alzheimer’s disease, dementia, or another serious condition that causes cognitive decline
The New York State Department of Health strongly recommends that everyone over the age of 18 designate their own “health care agent” or “health care proxy.” This is because accidents can happen unexpectedly and at any age, and if you haven’t already established the right powers of attorney, your loved ones will have to go to court and plead for permission to act on your behalf.
The Durable Power of Attorney
The durable power of attorney takes effect immediately and lasts until you pass away or choose to revoke it. Unlike other designations, the durable power of attorney lets your agent act on your behalf, even if you are incapacitated.
Your agent could, for instance, do the following:
- Pay your rent or mortgage
- Oversee your investments or continue adding contributions to a retirement account
- Help your family stay on top of medical debt, college tuition payments, and other regular expenditures
Authorizing the durable power of attorney could seem like a frightening prospect—in part because it transfers so much authority to another person. However, attorneys-in-fact cannot use their power as they see fit. Anyone who is appointed as an agent is bound by a stringent “fiduciary duty,” which means they can be held personally liable if they fail to act in your best interests.
The Springing Power of Attorney
The springing power of attorney is very similar to the durable power of attorney.
The difference between the two lies in timing: whereas the durable power of attorney takes effect as soon as it is signed, the springing power of attorney only “springs” into action after certain conditions have been met.
Common triggers for the springing power of attorney include:
- A pre-specified date
- Being diagnosed with an incapacitating condition
- Being seriously injured in an accident
Many people find the springing power of attorney much more appealing than the durable power of attorney. However, while springing powers might seem less susceptible to abuse, they can also be challenging to enforce. If, for example, you configure a power to “spring” only after you have been disabled, then your attorney-in-fact may need to obtain an affidavit from a physician before the power can take effect. This can cause delays of days or weeks in situations where hours, minutes, or seconds can make a difference.
3. Explore Strategies to Preserve Your Heirs’ Inheritances
Your will and powers of attorney may not accomplish all your goals. You may also consider:
- Strategic gifting. Your estate planning attorney could help you maximize gift allowances by leaving early inheritances to heirs, beneficiaries, and preferred charities. Strategic gifting provides many advantages—it can jump-start your children’s success while you’re still alive or let your estate qualify for specific tax exclusions.
- Taxation mitigation. The federal government and the state both have the power to tax higher-value estates. If your estate is likely to incur a tax-related burden, a combination of different strategies—including giving lifetime gifts and transferring assets to a trust—could be used to reduce or eliminate your estate’s anticipated tax obligations.
- Living trusts. State law permits the establishment of many different types of trusts, which can be used for various purposes. For instance, establishing a revocable living trust could help keep your estate out of probate while protecting your heirs’ long-term interests. And, unlike a simple will, a trust can be conditioned—letting you set terms for inheritances and prevent heirs from receiving too much at too early an age.
4. Detail Your Decisions
The legally enforceable provisions of your estate plan—your will, your powers of attorney, and your trust—work best when written in accordance with legal precedent and state law. However, meeting all these requirements can make it difficult to express your own wishes in a way that reflects your values and resonates with your family. You can bridge this gap by including the following additions and provisions:
- A letter of instruction. Letters of instruction lay out your expectations for estate administration. Although a letter of instruction is not legally binding, it can provide your executor with critical information on how to locate and access assets—and explain to heirs why they have received certain assets as an inheritance.
- An advance health care directive. Your advance health care directive is a written form that clarifies your preferences for end-of-life medical care. Many advance health care directives are combined with medical power of attorney authorizations.
- Funeral and memorial plans. If you want your funeral rites conducted in a particular fashion—according to your religious beliefs or other strongly-held sentiments—then you may wish to either set aside funds for your plans or provide a list of suggestions to your executor.
5. Overcome Uncertainty by Taking Action Today
Your estate plan could help protect your health, wealth, and peace of mind.
The Landskind & Ricaforte Law Group, P.C., is a Brooklyn-based and family-oriented firm that makes our clients’ needs our greatest priority. Our experienced team of New York City estate planning attorneys could help you with the following:
- Draft a will
- Nominate an executor
- Configure and approve powers of attorney that secure your well-being without compromising your peace of mind
- Establish a trust to protect an inheritance, a loved one with special needs, or a charitable contribution
- Talk through and resolve your concerns about probate, estate taxes, or expected sources of conflict among heirs
One of our clients, Corrine, said this about working with Terence Ricaforte, “My family has used Terence's services on several occasions. Not only has Terence provided expert legal advice, but he's taken the time to present all of our options and raised points we hadn't previously considered, or even known we should be thinking about. Estate planning for aging relatives can be a challenging and emotional process, but Terence's smart, thoughtful and customer friendly approach made the process easy. I've recommended him and his practice to many friends and colleagues, and the feedback I hear from those who use his services is also consistently positive.”