Estate Planning Basics

Estate planning can be overwhelming for anyone not familiar with this particular area of law. All that one actually needs to be fairly familiar with the entire legal niche are a few basic concepts. Once familiar with these concepts, you will have a better understanding as to what your estate plan should consist of.

Estate planning covers crucial elements that can be applied to the many stages in an individuals life. Some key decisions that estate planning covers are retirement, social security, property distribution after death, long-term care, Medicaid,  and asset protection among many other things. What items should one be familiar with before they begin preparing their estate plan? Here is a short list to better understand how to prepare properly:

Last Will and Testament: Everyone is familiar with a will. It is a document you prepare that states how your property should be distributed after you pass away. You choose an executor in the will which is a person who will manage your property after your passing. You also appoint a guardian in your will in the event you have a minor child or an individual who is mentally changed that was under your care.

Trust: Trusts come in many forms. You have revocable and irrevocable trusts which are the two main categories. Think of a trust as a company that holds onto your assets. This bank has what is called a trustee which is the individual who manages the assets. Based on how the trust is stipulated, the trustee acts accordingly and distributes the funds of the trust as directed. With a irrevocable trust you no longer own the property which helps you save on estate tax. A trust is also a great way to avoid probate. Probate is unavoidable when you have a will in place.

Durable Power of Attorney: People can sometimes be unavailable to handle their financial affairs either because of logistics in traveling or sickness. We take for granted the day to day things we are able to do like pay our bills, go to the bank, close on real estate transactions, and many other things. If you are unable to do any of these actions because of a disability but need them to be done, consider preparing a Durable Power of Attorney. This document appoints an individual to do said actions for you. We outline the exact limitations to what they can and cannot do.

Living Will: Although you see the keyword will, this document is completely different from a a last will and testament. This document stipulates what should take place during a situation where you fall into a coma. You decide ahead of time in a living will on whether or not you should be kept on life support.

Guardianship: You can appoint a guardian to watch over a minor child or an individual who is mentally impaired. As the guardian, you would be paying their bills, admitting them to an institution, and taking care of their day to day needs.

This is just a short list of what is available to you. We do recommend you get in touch with an estate lawyer to better direct you on what exact tool would best suit your personal situation.

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Episode 3 of the Mishiyeva Law Podcast

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Episode 2 of the Mishiyeva Law Podcast

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Episode 1 of the Mishiyeva Law Podcast.

Brooklyn, Manhattan, Queens Estate Planning, Probate, Elder Law Attorney...

How The NYC Probate Process Works

What happens when someone passes?

Before we begin, it is highly advisable to contact an New York Estate Planning Lawyer as soon as someone passes away for estate purposes. When an individual passes away, two types of proceedings happen. If a will was set in place, probate proceedings occur. If no will was set in place, you enter into a process called estate administration. Either or, some common events transpire: creditors must put in a claim and be compensated for the debt owed, the property of the estate must be distributed to the heirs, and estate taxes must be paid if applicable. This entire process takes place in a specific court called Surrogate's Court.
When the individual passes away, he or she will have a representative representing their estate. If a will was in place, this representative will be called a executor. If no will was set in place the court will appoint what is called an estate administrator. They will typically go to Surrogate's Court and be requested to handle all debts of the estate including any tax liability from the federal and state level. Also, they will be asked to manage the property under the estate and distribute the said property either as stated within the will or through a court order. The court's only duty during this process is to supervise and provide approval of how the property within the estate is handled.
Be mindful that a NYC Estate Lawyer understands probate and estate administration very well. It would be wise to not handle this alone and instead contact them for their assistance.

The Probate Process

This is the time to call the CPA. Why? It's time for some accounting. The executor or the administrator has to make a listing of all property within the estate. They have to calculate what the value of the estate is. An inventory is made and as times a specialist may have to be appointed to provide an appraisal in order to estimate the value of some of the items or real property in the estate.  A NY  Estate Lawyer can make this process much easier. Once everything is accounted for, this information must the be filed with Surrogate's Court.
Once a proper accounting is done, it's time to pay some bills. The debt and taxes which were accrued by the decedent will have to be addressed. Afterwards, whatever is left over, the beneficiaries get their piece of the property. Keep in mind if no will is in place or it is ambiguous, be ready for long lost relatives to show up and contest the distributions. Make sure to hire yourself an estate litigation lawyer.

Who Needs Estate Planning

There are two types of individuals that should inquire into estate planning:

• People that own property and actually care what happens to their property after their death
• People that have minor children or are caretakers/guardians

When people think of the phrase "estate planning", they automatically think of the wealthy. Estate planning applies to just about everyone, not only the rich. There is no minimum net worth required to be allowed to plan your estate. Estate planning is warranted when you care for any of your belongings, property, and assets. Unless you are okay with the court system deciding what to do with your property, estate planning is an essential tool.

When you are the parent of minor children, estate planning is not only recommended, it should be obligated. What happens to your minor children after you pass away? Who should take care of them and raise them after your death? If you have some wealth to your name, how do you want it to be distributed to your children (in increments, in a lump sum, when they reach age 25)? You need to establish who will have legal custody of the children. You will also need to establish an adult to manage the funds that will be left for the use of the children. There can be many nuances involved with these two decisions alone which a New York Estate Planning Lawyer can help with.

It is human nature to avoid thinking about your mortality. People tend to always push off planning ahead, especially when one's death is involved. This can result into a grave mistake not only for your children, but for your spouse as well. The number one most important estate planning advice we can give is to actually start planning and get in contact with an estate lawyer today.

Remember, when you end up procrastinating proper estate planning, the people who get hurt are your intended beneficiaries. Some common issues that can occur without proper estate planning are as follows:

• Property and assets will generally not be distributed in the way that you had intended
• If there is no will or trust in place, property will be divided between family members as specified within state law. Suppose you have a sibling who is a drug addict, do you really want them getting an equal share of your money while your other sibling is disabled?
• An executor or estate administrator will be appointed to rule over your assets. This decision will be made by the judge. Do you really think they will rule over your assets for free? This can get very costly.

The conclusion is this : you should have planned for your estate and death yesterday. If you are reading this, it is not too late. Get on the phone today and contact and Estate Lawyer in NY.

Will vs Living Trust

In essence, a will provides instruction as to what should happen with your assets at the point of your death. The will dictates who should receive your assets. A will DOES NOT avoid probate. Keep in mind, if you have assets in different states, the probate process will need to take place within each state jurisdiction. Each state may vary in its law in regards to estate law. Probate also includes legal fees, administrative fees, court fees, and executor fees. In most instances, probate files are public information in order to encourage the heirs of the decedent to come forward and request a distribution from the estate. This creates an opportunity where you truly expose yourself to will contests.
There are certain financial instruments that do not require probate. These are common financial vehicles that are utilized quite often. They fall under the category of jointly-owned property which allows you to name your beneficiary without the need of a will. This includes life insurance policies, IRAs, 401(k)s, and annuities. One should be careful with ensuring they name a valid beneficiary. It has to be clearly stated and a secondary beneficiary should be named in the event the primary beneficiary passes. Also, be aware if a minor is named as the beneficiary. The courts may insist on guardianship proceedings for the minor until they reach majority age.
What then is a revocable living trust? It is an estate planning tool which can be changed during the lifetime of the decedent. It avoids probate, prevents court intervention and control over the specified assets within the trust, organizes all of your assets into a single estate planning vehicle, holds validity in all states, and avoids probate in all states. With a will, the moment you pass away, your assets are now positioned to be distributed. With a living trust, the assets are distributed based on the guidelines you set forth within the trust. You can decide whom should acquire the property outlined within the trust, at what age, and under what circumstances. To start the process of obtaining a living trust, contact an estate lawyer in New York today to go over all of the various nuances involved with estate planning.

The Essentials of Estate Planning

When one thinks of an estate, they picture a large opulent property somewhere in the Hamptons or several owned yachts parked by a nearby lake. The fact is we all have an estate. Your savings account, your IRA, your clothes, your furniture - all of that is your estate. At the time of your death, all of that property has to go somewhere. Unless you don't perform some measure of estate planning, this property will go to places in which you may have been opposed to while still living. Estate planning, from a bird eye view is you deciding how you want your property handled, whom you want it to go to, and when they should receive it. It is noteworthy that the most careful form of estate planning will have you examine various court fees, taxes, and administrative expenses and essentially look to minimize all of these overhead costs. Many of us typically do not know what taxes are involved nor do we know what the bill will be at the end of the day after taking into account all of the court fees. The best decision you can make when looking into estate planning is to contact a New York Estate Planning Lawyer.
Proper estate planning has you consider the following items:

• Examining what fees you will be exposed to (Federal taxes and State taxes, court fees, legal fees). You will want to see how you can minimize your taxable exposure along with what the courts and lawyers would charge you.
• Business Planning. If you happen to own a company, you will want to consider who will be running it or rather who will inherit your share of the company.
• Look into life insurance policies in order to support your family or loved ones even after you are gone along with long term care insurance in the event you may be sick or injured for an extended period of time.
• Selecting an executor, guardian, or trustee ahead of time so the court system does not select these crucial roles for you.
• Provide instruction as to how you want the possibility of you suffering a life changing disability to be handled.
• Deciding upon who should receive your assets and property, how it should be distributed (lump sum or in portions), and when this property should be distributed.

This is simply an over view of what should be taken into account when looking into estate planning. NY Estate Law can get complicated. It is highly recommended you get in contact with the right professionals to assist you in your decision making. At times, relatives and friends can be subjective. A trusted professional in the estate planning industry could be the best decision you will ever make. Estate Planning Lawyers know how the probate process works, have been to Surrogate's court, and have drafted trusts and wills on behalf of their clients. Instead of taking matters into your own hands, open yourself up to the idea of dealing with a lawyer specialized in the field of estate law.

estate planning and life

Estate planning is an ongoing process. Unfortunately, you cannot simply plan your estate one time and expect to not make any adjustments going forward. Many elements can take place in life that would cause an individual to re-evaluate their estate planning strategy.  Changes in laws, whether it is tax law or non-tax law, can have you seriously consider making changes to your planning. State legislatures may decide to make changes on how certain property may be distributed, or the Federal Legislatures may decide to increase the exemption amount for estate tax. It is always best to consult with a New York Estate Planning Lawyer to ensure you are up to date on all tax law changes that can affect your estate.
Health is always a concern. A family member may become ill. Perhaps it would be necessary to establish a special needs trust at that point or have your trust address the needs of your ill family member to ensure they are taken care of.  Divorce is an unfortunate occurrence that has been happening as of lately in America. Your spouse at some point may have been the beneficiary in your trust but due to the divorce, perhaps you would prefer to direct your assets to your children at the time of your death instead. Changing your residence usually does not pose an issue from an estate planning standpoint. However, certain states establish community property laws as opposed to separate property laws. You may want to examine the tax benefits and advantages if you were to convert your property from one to the other.
Executors and trustees are typically the individuals who oversee your assets. Perhaps an individual who you had appointed as your personal representative has developed dishonest or irresponsible behavior over the years and now you have reconsidered appointing them to take care of your estate at the time of your death. Perhaps you are the beneficiary of a large estate and you have been given a substantial inheritance. It may be time to put your new found assets in the trust or properly plan to avoid paying unnecessary taxes on the property. New business ventures have arisen and you now find yourself looking to ensure the business thrives even after your death. With the proper estate planning, succession planning will be key to ensure the right personnel are put in key positions per your request as specified in your will or trust.
As with anything in life, things changes, progress, and retract. It is important to keep somewhat of an open mind when estate planning comes to the forefront. The right representation can be your best tool in ensuring you are prepared for any curveballs life may throw at you. NY Estate Law can be complex, difficult to understand, and sometimes just plain confusing. Hiring the right estate planning lawyer is the best hedge you can make to ensure you are positioning yourself correctly not only for yourself, but your loved ones.
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Kamilla Mishiyeva, Esq., is an estate planning attorney in New York. She offers her legal services to all five boroughs as well as well as all surrounding counties. Should you have any questions on estate planning, estate administration, probate,  and probate litigation, call now at (646) 736 6328.

Estate Planning: Examining your personal situation

People do not realize just how much family and possible beneficiaries they have until they actually sit down and examine their approach to estate planning. Here are some questions you need to ask yourself:
Do you have children? Are you married? Are you single? Is this your second marriage? Do you have children from a prior marriage? Do you have step children? Do you have grandchildren? Do you have great grandchildren? Do you have siblings? Do you have a half brother or half sister? Do you have other family members that you are close with such as a cousin or uncle? Are there organizations, causes, charities, or institutions that you want to leave your property over to when you pass away?
You have to think carefully as far as whom you want to name as your beneficiaries. The benefit of pre-planning is avoiding possible fights between family members. Imagine for a moment that you have children in your current relationship and children from a previous relationship. How exactly would you want your property to be distributed? Perhaps equally among all children? What if in your current relationship, the children are still infants and in your prior relationship, they are all grown with full-time jobs. Would it be fair for the property to be distributed equally, or shouldn't the infant children be allowed a larger portion of the assets.
All of these questions and scenarios come into play when you really examine your personal situation. What if your not married but you have children? You need to ask yourself who will take care of your children (assuming they are minors or mentally ill). Aside from having a guardianship over your children, how will your property be managed in order to support your children? This is where choosing the right executor comes into play. It is important to get in contact with a Probate Attorney or a New York Estate Planning Lawyer to assist you in examining your estate and all of the possible ways you can distribute your assets after your passing.
The greatest benefit you have at your side is the opportunity to actually sit down and consider all the mentioned factors. You do not want to be one of those individuals who has no will or trust set in place. At that point, the courts decide who gets what. Also, the courts can appoint whomever they wish as the executor. All of this can get very costly and the people that suffer the most are your heirs. As overwhelming as all of this may seem, do yourself a service and contact an estate lawyer in NY today to understand what your options are from an estate planning perspective.

Revocable Trust

The Basics

The Revocable Trust is a powerful estate planning vehicle. You are able to secure various forms of assets into the trust and at any point prior to your death. You can remove the property and assets from the trust. You can also terminate the trust at any which point you choose. This is far different then an irrevocable trust. An irrevocable trust, which the name suggests, cannot be changed. As with any trust, you have full control of how exactly your assets should be managed and whom they should be disbursed to.

With all trusts, the same players are involved: The grantor, the trustee, & the beneficiary. The grantor is you, the creator of the trust. The beneficiary is the individual or organization inheriting the property from the trust. The trustee manages the assets within the trust. The trustee does not arbitrarily decide how the assets should be managed. Terms are given by you, the grantor, which provides guidelines as to what the trustee can and cannot do. When dealing with a revocable trust, you would want to name yourself as the trustee. HINT: if you don’t want the property to be disbursed to the heirs within the trust after your death, consider establishing a line of trustees who should take over your role after your death.

Dodging The Probate Bullet

A Trust is also a great way to avoid probate. Remember, whatever is not held in a trust will need to go through the process of probate. Whatever property, savings accounts, and brokerage accounts you may have, consider putting them into the trust. With the probate process, your beneficiaries are exposed to dealing with a will contest. What that means is regardless of how well written your will is and how many witnesses you may have to attest to the validity of the will, various parties will still surface after your passing to try and contest the terms you have set forth in the will that allow your beneficiaries to receive the property not already in your trust. On top of that, when going through the probate process, you have various fees and expenses (filing fees, attorney fees, etc.) that need to be handled.

Here are some key fact you want to keep in mind when it comes to a revocable trust:

The revocable trust generally does not provide any significant tax benefits
A revocable trust remains effective even if it is not presented to Surrogate’s court.
Make sure you contact an experienced Trust Lawyer in New York City to help you with drafting the trust. They understand the language of trust planning and will be able to create an iron clad trust.
Bear in mind if you have property in various states, there is a possibility your executor must go through the process of probate to be able to transfer the property over to your beneficiaries. A trust avoids that.
A revocable trust is a financial tool that can secure your control of your property while alive and in death. It is a great starting point when approaching your estate planning. Always consider retaining a Trusts Lawyer to walk you through drafting the irrevocable trust.

Understanding a will

A will is a document informing the executor of an estate on how to proceed with closing out the decedent's estate. To put it more simply, a will is a document letting the public know how the decedent wanted all of their property to be handled.

Understanding The Relationship Of A Will & An Estate

To start, it is best to get a will drafted by a New York Estate Planning Lawyer. Estate and Probate attorneys understanding the language of probate and know how all of the different clauses in a will affect the beneficiaries. A will should be filed with Surrogate's Court. Surrogate's Court is the court in which all probate proceedings are held. The will (especially if drafted by an attorney) will designate who the executor should be.

A term you will hear often is what is called testate. The way it is used is as follows: "Mary died testate". What that essentially means is she died with a will in place. The will has to undergo a process called probate which just means that the court examines the validity of the will to ensure the decedent did in fact want the noted beneficiaries to be provided with the assets he/she discusses in the will.  The court also assists in supervising the administration of all assets under the will. Bear in mind it is highly advisable you contact a New York Estate Planning Lawyer with any questions you may have as far as probating a will is concerned. Lawyers who specialize in estate planning and probate spend A LOT of time in Surrogate's Court and usually learn how the entire process works through experience, their CLE courses (continuing education courses), Law School, and from communicating with the law clerks at Surrogate's Court.

The validity of a will is what can make or break a case. Without a valid will, all of the directives in the decedents will will not be upheld and the court may ultimately decide who gets what. In most states, the person writing the will must be 18 years old and of sound mental capacity.Tthe will has to be drafted, signed by the decedent, and have witnesses attesting to the creation of the will. Bear in mind other factors can be revealed which will invalidate the will.  For example, if the testator was persuaded to create the will without them being aware of the consequences is what's called undue influence. To paint this situation better, imagine an elderly man is convinced by his caretaker to make a will making the caretaker his beneficiary. This can certainly be a situation where no issues would arise but I have seen scenarios where family members contested the will stating the elderly individual was unaware of what he was signing. Wills are often contested with this argument. Other times in which a will is struck down is when it is revealed to be a forgery. Quick Tip: When you create a will, make sure each page in the will requires your signature. I have seen situations where only the last page contained the signatures and all other pages were forgery.

Again, it is highly recommend you seek out a New York Estate Planning Lawyer when your looking to form a will. Avvo.com is a great source to find an attorney. Always do your due diligence and always get a second opinion on your legal matters. Finally, the most important piece of information you should take away from all of this is pre-planning. Get your will drafted before it is too late.

Overview of Estate Planning

The moment has come where your friend or family member has passed way and you have been elected as the executor of their estate. As the executor, your responsibilities will grow and evolve as you proceed through each step of administering the estate. Your biggest priority is to move the estate forward so it can eventually be closed out and all beneficiaries and creditors receive what is due to them. It is highly advisable to retain a New York Estate Planning Lawyer when you get word you are the executor of an estate.

Probate

Probate involves Surrogate's Court supervision during the administration of an estate.  It is essentially the fence between the estate and the beneficiaries/creditors. It gives you, the executor, an added measure of support. Any questions that you may have, you can direct them towards the court. Also, the court and it's staff are somewhat available to provide you with guidelines if needed. To begin the process, you will need to file the decedent's final Last Will and Testament, assuming there is a will. Remember to consult how exactly the probate process works and what issues you may encounter from beginning to end with a New York Estate Planning Lawyer.

The Estate and It's Assets

You will need to identify all of the assets of the estate. Some assets to be aware of are real property such as a house or a condominium, checking accounts, saving accounts, money market securities, stocks, bonds, treasuries, vehicles, and antiques. You may have to consider hiring an appraiser for some of these items as well, or an asset search company if the property of the estate is not readily determinable. Also, when including assets of the estate in the probate petition, remember that a co-op is considered personal property under the laws of every state, not real property. Keep in mind a New York Estate Planning Lawyer can be retained to find the appraisers for you and inform you of any state laws you need to be aware of that can affect the accounting of the estate.

Expenses

Before the decedent passed away, he or she was paying bills like the rest of us.  They had utility bills,  maintenance, car payments, a mortgage, and so forth.  Well, those bills still need to be paid. As the executor, it is your job to pay them. Do not forget the funeral costs and any attorney fees in case you took the smart route and sought out a New York Estate Planning Lawyer. As an executor, you are entitled to commissions based on the value of the estate. The commissions vary based on the property you distribute as well. Once the expenses are paid, and you receive the green light from the Surrogate's Court, you can proceed with disbursing what is due to the heirs. There is a specific order involved. Also, be sure to seek out guidance when it is not so clear as to how you can divide the monies.

Taxes

Yeah, taxes are always inevitable. If estate tax is required to be remitted, Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, has to be used. If the estate is earning money such as rental property, Form 1041, Estate and Trust Income Tax Return, has to be filed. Let's say the decedent passed away in April 2015, Form 1040, Income Tax Return, has be to filed for the follow periods: All of 2014 because it was due on April 15, 2015, and then a separate Form 1040 on April 2016 to cover the periods of January 2015- April 2015. As the executor, you have quite a lot of work cut out for you. Bare in mind that this can all be simplified if you decide to retain a team of professionals to assist you. An Enrolled Agent, a CPA, and a New York Estate & Trust Lawyer can be of great use in filing taxes. With an Estate and Trust Lawyer, you also have a professional by your side who understands all the nuances of Surrogate's Court, Estate Administration, and Estate Taxation.

The Trustees and what you need to know

When people hear of the word "trust," they typically have trouble understanding what that term means.  How can a trust hold title to your house or any other asset.  Imagine a trust to be a big basket.  The same kind of basket that holds easter eggs.  In this big basket, you have a variety of assets from your house to securities such as stocks and bonds. This basket also contains checking accounts and saving accounts.  Although these assets have been safely placed into a trust, an individual or entity (trust company) needs to be named to manage, control, and make any distributions from the trust as they come due.  The title of this designated individual is the trustee.  The trustee has a fiduciary duty to ensure that the assets in the trust are being maintained properly and that they will be disbursed to the appropriate party as requested by the creator of the trust (also known as the grantor). The trustee may also be charged with investing on behalf of the trust. Unless they are directed to invest into volatile investments, generally the trustee is expected to make smart, conservative investments.  Remember to consult with a New York Estate Planning Lawyer in a case dealing with a trust.

You will hear individuals refer to Independent Trustees and Family Trustees. Independent Trustees are friends, banks, accountants, CPAs, trust companies, or lawyers who are not named as the beneficiary in the trust. They have no skin in the game. They do however receive compensation for their involvement with the trust. Quick tip: Have a line of succession ready. What a line of succession means is a line of all the individuals who should become a trustee in case the initial trustee passes away or decides to step down. Family Trustees are family members of the grantor who are selected to be trustees of the trust. In this scenario, they can be beneficiaries. What you have to consider is creating defenses from your Family Trustees in order to stop them from committing decisions that would be self-serving. A New York Estate Planning Lawyer can identify any possible pitfall relatively easy as far as protecting the trust is concerned.

An ideal trustee will honor your wishes, and rightfully manage your assets.  However, as most people know, people get greedy and start making self-serving decisions when money is in their hands.  Is it wise to have only one person involved as the trustee? If your estate is big enough and you can afford it, consider having an odd number of trustees and institute a voting requirement prior to any material decision being made on how trust assets should be invested. The entire point of a trust is to have the assets eventually end up in the right hands. By creating a voting requirement and having more than one party involved, you establish a stronger defense against wrongdoing. I have seen scenarios where a trust was created over a decade ago and the trustee (which in this case was a trust company) invested in extremely volatile stock positions. Sure enough, the assets in the trust lost a total value of 80%. If the initial lawyer had been more careful, they would have directed the trustees to invest only in the most conservative of investments. It would have been even better to get a second trustee involved to police the possibility of reckless decision making. This is why getting a second opinion on all matters regarding estate planning are important. Retaining a New York Estate Planning lawyer to police an existing trustee would be helpful in your cause. You set up a trust to take care of a close friend, a loved one, or an organization. You do them a great service by seeking more than one attorney to advise you on the matter. Consider having your signature implemented under each clause of the trust. I have seen cases where the signature page was on the final page of a trust, however, the first several pages were altered to better serve the trustees. Estate Planning is all about safeguards.

Do not hesitate to contact us in the event concern arises of the wrongdoing by a trustee or by an executor if you are dealing with a probate matter. Our New York Estate Planning Lawyers have the knowledge and experience to defend you in all manners dealing with trust, probate, and estate planning. At Mishiyeva Law, we handle general estate planning matters as well as controversial estate needs. Located in Downtown Manhattan at 85 Broad Street, New York, NY 10004 or call us at (646) 736-6328

Knowing the players of estate planning

Who Is Involved in Probate and Estate Planning

Picture this scenario: someone who is currently alive has named you the executor to their will or the trustee to their trust. Sounds like you are an important person now, right? Well, you certainly are. Now here’s the million dollar question, do you know what it actually means to be the executor or the trustee? This is a huge responsibility and the most important requirement at this time for you as being named as the fiduciary is knowledge. You need to know who exactly all the key players are in the world of probate and estate planning. Let's start:

The Roles

Administrator: Someone passes away but leaves no will. What happens next? The court has to appointment someone to handle the estate so Surrogate's Court appoints the estate administrator or otherwise know as the administrator. They typically pay the bills of the estate, deal with the beneficiaries, and are essentially involved with the estate until it is closed.

Executor: A person dies but this time a will is in place. The will should identify who will represent the estate and handle all of the operations. This appointed individual is the executor. Usually, the executor is compensated for all the work they do.  Similar to the administrator, they are heavily involved with the estate and are typically dealing with the day to day operations until it is closed out.

Guardian: Surrogate's Court decides who the guardian should be. A guardian is appointed when a person either gets really old, or has a physical or mental injury which incapacitates them and takes away their ability to live independently and make decisions on their own. The guardian takes care of their bills and living situation. The guardian can admit this individual to an institution such as a nursing home to care for the incapacitated individual full time.

Personal Representative: This is just a fancy term referring to an executor or an administrator.

Your Responsibility

Regardless of what your title becomes, you need to be aware of one thing: you are responsible for the financial and or living welfare of the individual that you have been appointed for. As the fiduciary, you have an obligation to be ethical and work only in the interest of the estate or individual. Knowing more about estate planning  and the probate process can greatly benefit your understanding of your duties.

Be aware if you do decide to act dishonorably (such as stealing from the estate or neglecting your duties), don't think their isn't a line of lawyers waiting to be retained to sue you for breach of fiduciary duty, negligence, fraud, misdealing, and misappropriation. Money is at stake. If you are ever selected as a fiduciary and you think you will be overwhelmed, simply pass up the opportunity. Their are plenty of good estate lawyers in NY who can take over your duties and ensure the responsibilities of a personal representative will be handled with transparency and professionalism.

In conclusion, estate planning has individuals and parties with a lot of roles. Always educate yourself on what exactly needs to be done if you are ever appointed such a role. There is no harm in backing out of it. Being the representative can be a commitment which lasts months if not years. If you do back out of it, make sure you find a suitable candidate to take over your tasks. A lawyer can make a great asset and resource for such a situation but you need to be picky. There are plenty of good lawyers out there as well as bad lawyers. Nevertheless, if you do your due diligence, this whole probate process can go smoothly when you have the right representation by your side.

401(k) and 403(b) Explained

A 401(k) and 403(b) are retirement plans offered by employers. Most people are familiar with the 401(k) which is usually associated with businesses. A 403(b) is associated with nonprofit corporations.

These plans allow employees to defer their wages (prior to being taxed) into the program. All funds in the program are tax free until a withdrawal occurs. In many instances, the employer even matches the funds or makes a contribution even if not at the full 100%.

What happens next is the money in your account is invested. You may be allowed to pick the type of investment strategy to be applied with your funds. You will typically see options for an investment strategy that is more conservative or more aggressive. When entering into a bull market, aggressive maneuvering may be the way to go. However, I suggest to always take the conservative route with any investment option you come across. You can get even more specific and select your financial instrument, be it a high yielding bond or a preferred stock.

Similar to an IRA, you will have to begin withdrawing your funds at age 70½.  There is no fixed withdrawal rate that applies to everyone. The program calculates the amount you must withdraw at a minimum each year.

As far as probate is concern, once an individual passes away, their beneficiary receives all the funds in the account. Is probate required if you want your spouse to receive the funds? No. Married individuals have their spouse as the beneficiary automatically. The only way to avoid having your spouse as the beneficiary is if the spouse waives their right to the funds upon the decedent’s death.

Federal law dictates the option to roll over the funds in the deceased persons retirement program to the beneficiaries IRA. What accounts can have the funds rolled over? SEP-IRA, IRA, 401(k), and 403(b).To truly get an idea of what benefits you  may receive when rolling over the money in the decedents retirement program, contact a NYC Estate Planning Lawyer. Kamilla Mishiyeva, Esq., can discuss with you as to what income tax savings you may be able to take advantage of when rolling over the newly available funds instead of accepting a large lump sum.

Should you have any questions on the advantages and disadvantages of different retirement programs, contact Kamilla Mishiyeva, Esq. She specializes in estate planning, probate administration, and probate litigation. With offices in Brooklyn and Manhattan, she is available to handle clients through various neighborhoods including Park Slope, Financial District, Tribeca, and Soho.

Education Trust

Trusts can be utilized to fund an individual's schooling including college. An “Education Trust” is typically used by relatives of a child to fund their education. A trustee will need to be named in the trust to handle with the operational needs of the trust. Some important factors to consider are as follows:

The Date When The Trust Will Be Operational: The child may be young enough where you may not be alive when they are ready to attend college. You would need to decide as to when the trust should be operational; before or after your death. Why does this matter? If you will set up the trust while still alive, you have to take into account that whatever amount you put into the trust, gift tax will be due. The donor is responsible for the gift tax.

The Qualifications For The Benefits: Do you want the child to receive benefits from the trust only if they pursue certain educational routes? For example, you can set up the Education Trust in such a way where the child will only receive the benefits if they pursue a mathematics degree.

How The Trust Will Treat Multiple Beneficiaries: Suppose one beneficiary is going to an Ivy League University and another beneficiary is going to a community college. You will want to decide how the trustee will distribute the funds. Perhaps the child with the more expensive education should be provided with more funding from the Education Trust.

Ending Balance of Trust: At the end of the beneficiaries education, there is a possibility assets will still remain in the trust. You must make a decision as to what the trustee should do with the remaining funds. Should they be distributed to the beneficiaries or instead donated to a charity? That is a decision you will need to address when creating the trust.

Typically a New York Trust Lawyer can do all of the above and outline the specifics within the Education Trust on your behalf. They can also act as the trustee to ensure all assets are being distributed at the proper rate, for the proper causes, to the appropriate beneficiaries.

Special Needs Trust

Thankfully, we live in a country where if an individual has special needs, the government is able to provide a financial cushion to help the person with their disabilities. One question that arises frequently in the arena of estate planning is the impact an inheritance has on a mentally or physically disabled person who receives governmental assistance.

Typically, an inheritance, whether through a will or trust, will disqualify an individual from receiving government benefits such as Social Security and Medicaid.  The only way to avoid to such an occurrence is by establishing a Special Needs Trust.  A Special Needs Trust is specifically designed for a grantor to provide for a disabled person without imposing any limitations on the government benefits they receive.  Essentially, the trust is the owner of the property and the trustee controls and disperses the money/property to the beneficiary.

One of the largest disability benefits provided in the United States comes from the U.S. Social Security Administration.  The SSA website provides a guideline as to how exactly the Special Needs Trust should be structured in order to avoid any issues in regards to a persons eligibility for Social Security assistance. The beneficiary may:

NOT control the payments provided by the trust
NOT change the trust or use of the established property
Essentially, the disabled individual may have no control over the trust income. Only the trustee can have said control.

When involved in protecting the sustainability of a special needs victim, I would recommend contacting an estate planning attorney in the New York City area to help you with setting up a Special Needs Trust and a Guardianship. Both of which are crucial tools in ensuring your loved ones with battles most of us don't face on a day to day basis are provided with the financial security they are entitled to.

The Many Hats of the Executor

Have you been named as the executor of an estate in the Last Will and Testament of the deceased?  If so, be prepared.  Being the executor of an estate can be very demanding. Normally the executor is chosen because of their close relationship with the deceased. Why? As the name suggests, the executor executes the final affairs of the individual that has passed away.  The executor is someone who the deceased trusted, and this is someone with the fiduciary duty to uphold the final wishes of the deceased.

The following is a brief listing of the duties of the executor:

File a petition in Surrogate’s Court to probate the Will of the decedent.  Every Will must be probated in the county where the decedent was domiciled or where the decedent owned real estate.  The probate process ensures that the Will is in fact valid, meaning it was executed by the decedent, and all interests of any potential heirs are protected.  The gathering of all the documents required by the Surrogate’s Court in order to probate a Will can be burdensome and tedious.
Once you are officially appointed as the executor of the estate, you must open an estate bank account in which all income/monies of the estate would need to be held.  This includes any and all rental income, retirement income, dividends, and other assets.
From that estate bank account, you will have to pay any and all debts of the decedent/estate as they come due.  The executor is normally charged with the responsibility to contact all creditors and notify them about the passing of the individual and proceed with paying off their unsubstantiated debt.  The fiduciary may be in a situation where there are utility bills, and operating expenses under the estate. The executor would need to use the funds from the estate to pay off these expenses.
Pay taxes on Form 1041 or Form 706: Usually a tax return may need to be filed on the state and federal level.  Also, if the estate is big enough, an estate tax return may need to be filed.
Manage, distribute, and supervise the assets: The executor may be given the responsibility to manage the assets under the estate and distribute them to the rightful beneficiaries. In some situations, there may be a guardianship in place for a mentally challenged relative. The executor would be given the duty to ensure the mentally challenged relative is given the monies required for them to maintain their original lifestyle that was once provided by the deceased.
Being an executor can be a full time job.  If you are an executor in NYC and you need assistance in managing an estate, you should consider hiring an experienced New York probate attorney.  An estate lawyer can handle all of the aforementioned items on your behalf.

Importance of Wills

The state already determines how much taxes you owe, what type of insurance coverage you need, and where you can open up a business depending on zoning laws. The last thing you want the state to decide upon is what happens to your assets after you pass away. That is why drafting a will in New York is one of the most important decisions you can make in life.

Typically a will should convey the following:

Name and addresses of individuals and/or entities to whom you wish to leave your property to.
The name of a Guardian if you have minor children.
The name of Property Guardian if your children are under the age of majority when you pass, or are likely to squander away the money.
Whom you want your executor to be. This is the individual with authority to manage your assets and make sure your will is carried out according to your wishes.
The above is an example of what a basic will should contain. In contrary to a trust, a will does not need to be notarized.  It is good practice to have the will notarized, however, a lack of notary will not invalidate the will.  In New York State, there must be at least two witnesses to a will.  All witnesses should sign and print their name, and include their address.  Since people pass and move, it is recommended that there be at least 3 witnesses if case any of the mentioned instances occur.   Also, all witnesses should sign the will within a 30 day period.

A basic will as mentioned above should suffice if your assets aren’t subject to estate tax. It is highly recommend to find a good NYC probate attorney to draft you a more advanced will that have any of the following scenarios:

There might be estate tax owed because your assets exceed the exempted NY State and Federal amounts.
You want your property placed in a trust.
You have creditors that may make large claims against your estate.
You have a disabled child (age doesn’t matter) and you want the guardianship to be addressed in the will.
You fear others may contest your will.
Be aware the deceased may have a will and you are just not aware of it. Here is a good guide as to find out if someone has a will.

If you have any questions on this matter and you live in New York, feel free to contact the Mishiyeva Law Firm, PLLC., and we can help you with your probate and will matter:

Attorney Advertising:  This post is only here to provide general information. It is not intended to be legal advice. It can not and should not be substituted for proper legal representation. You should consult an attorney for legal advice regarding your rights as every case is unique and requires in depth analysis and preparation. Do not submit confidential information through this website. Contact initiated through this website does not create an attorney-client relationship.

Purpose of Probate Lawyers

Probate can take many months and possibly years to be final. Within New York, you would want to hire the right probate attorney. There could be a vast amount of documentation involved along with court appearances within New York's surrogate's court. Mishiyeva Law, PLLC., is a firm specializing in trust and probate matters in New York. They provide representation for individuals and businesses in Brooklyn, Queens, Manhattan, Bronx, Staten Island, and all surrounding counties in New York State.

What exactly can a probate attorney provide? The following is a listing of their services:

Determine the current trust and will and what the distribution plan is along with whom the beneficiaries are.
Filing petitions inorder to open the current estate
Accounting and filing the inventory of an estates current assets
Validating the claims against the estate and defend the estate from the claims which are not valid
Inform creditors what the open liability is
Provide assistance in locating assets
Attend court hearings
Provide defense against will contests
Prepare the correct federal and new york state tax returns for the estate
If you live in The State of New York, you want to find an attorney who you can trust for all of your probate matters. Kamilla Mishiyeva Esq., at Mishiyeva Law Firm, PLLC., received her J.D. from Rutgers Law. Her passion lies in helping individuals deal with the pain of losing loved ones. She wants to ensure she handles all issues and administrative matters for your probate case so you can rest easy that everything is in the right attorneys hands.