As Staten Island Estate Planning Attorneys We Can Provide Education In Drafting Your Will
One of the principal components of estate planning is the drafting of wills. At Merlino & Gonzalez, we have extensive experience in creating wills and can provide education that addresses your specific financial concerns. We listen carefully as you detail your fiscal and logistical, needs, so that we can prepare a document that addresses all of them. In addition, we bring to the table an in-depth knowledge of New York and New Jersey State law so we are well-prepared to advise you on steps to take that will protect your assets in the present and preserve your legacy in the future.
Our attorneys are tuned into the fact that preparing a will is an emotional, as well as practical event, and that some aspects of the process are sensitive ones. We are certain that once you consult with us you realize that you have come to the right place. In spite of unknown factors, we will help you to maintain your assets and stabilize your future and that of your loved ones.
Education: Purposes of Creating a Will
Creating a will is a process designed to plan for your own future needs and to make life as secure as possible for those you leave behind. We will assist you in ensuring that there is a smooth transition of your assets to your heirs, one that prevents squabbles or legal disputes, after your death. We will also give you insights about contingencies you may not have even considered, but which are important to address.
Does Everyone Need Education on Wills or A Written Will?
Many people mistakenly believe that only the very wealthy need wills and estate planning attorneys to prepare them. In reality, wills may be more significant for those with moderate assets. Even if you own a small home and have only modest possessions, dying without a will (intestate) can subject your loved ones to the often lengthy and expensive process of probate, subjecting your assets to creditors and taxes a well-structured will would have protected against.
Furthermore, if you die without a will you lose the power to decide which of your assets go to whom. New York and New Jersey State law will divide your estate among your spouse and children. If there are no survivors in either category, the state has a list of relatives (e.g. grandchildren, brothers and sisters) who will inherit sequentially. Even more disturbing, if you have minor children and you are a single parent, or your surviving spouse is unable to raise your children, the courts will appoint a guardian for them, not necessarily one you would have chosen. A further complication of dying without a will is that if you are in a close domestic relationship, but not legally married, your partner probably will receive no inheritance.
The Contents of a Will
A will, also known as a last will and testament, is a legal document that names your executor, the person you designate to distribute your assets in the manner you signified after your death. Essentially, wills perform the following functions:
- Name the individuals, groups, or entities (such as charities) that will inherit your property
- Name a guardian for minor children, and an alternate (in case your first choice is unable to serve)
- Describe any particulars about how you want your funeral or memorial handled
- Include any relevant information concerning your trusts and tax plans
Basic Will Requirements
In order to make a legal will in New York or New Jersey, the testator must be at least 18 years of age and of sound mind and memory. This does not mean that individuals with mental disabilities cannot make a will; they are considered competent to do so if they understand the purpose of the will and the nature of the property they are distributing. In New York, wills must be witnessed by two people who include their addresses on the document. Handwritten (holographic) wills and oral wills are only valid in New York State if written by a member of the armed services during a period of armed conflict. If handwritten, they must be written entirely by the testator.
In New Jersey, as in New York, two witnesses must sign the will, acknowledging the testator’s signature. According to New Jersey law, oral wills are not recognized, but holographic wills are considered valid whether or not they are witnessed as long as the testator’s material provisions and signature are in that individual’s handwriting.
Other Documents Often Drafted Along with Wills
Difficult as it is to confront one’s own mortality, it may be even more distressing to consider the fact that you may require long-term care and/or become incapable of making your own financial or medical decisions. Our highly qualified estate planning attorneys typically prepare some or all of the following documents, in addition to wills, for their estate planning clients.
Power of Attorney
A Power of Attorney is a legal instrument that allows an individual (the Principal) to delegate his or her legal authority to another person (the Agent or Attorney-in-Fact). By executing a Power of Attorney, you enable your chosen agent to make legal decisions on your behalf regarding your property, finances, and other matters that may arise when and if you become ill or incapacitated.
As Principal, you can determine, with the help of your attorney, how broad your agent’s legal authority will be. Powers of Attorney are invaluable when the Principal is incapable of participating in legal transactions because of severe illness or injury, or if the Principal is simply unable to travel to the required location to complete the legal transaction.
Because there is no oversight of the Agent who has Power of Attorney, it is extremely important to choose someone intelligent, honest, and trustworthy to assume this role. It is also wise to stipulate that your Agent keep accurate records of all transactions undertaken on your behalf. The Agent should provide periodic accountings either to you, or to a third party in whom you have faith.
Powers of Attorney drafted as part of estate planning are called “Durable” Powers of Attorney because they enable the Agent to make decisions over the long haul, not for a single action or short period of time. At times the Principal may want a “Springing” Power of Attorney drafted in which the agent only becomes able to manage the former’s affairs in the case of future incapacity or incompetence, due, for example, to advancing Alzheimer’s disease or traumatic brain injury.
Types of Legal Actions Your Agent May Take
When you give Durable Power of Attorney to someone, the individual can:
- Buy or sell your real estate
- Manage your property
- Conduct your banking transactions
- Invest your money
- Make legal claims and/or take legal action
- Manage tax and retirement matters
- Make gifts on your behalf
You should always remember that giving a person Power of Attorney gives them broad decision-making power over your finances and property. It is therefore essential that you have full trust in the person you to whom you assign this role. It is also possible to safeguard the process by giving two parties the Power of Attorney, to either act jointly, in which case they must agree on each decision, or in which one is a secondary representative able to act on your behalf if the primary person is unable to perform the necessary duties.
Healthcare Proxy
In New York and New Jersey, the law permits you to appoint a trusted family member or friend to make healthcare decisions for you if you become unable to make such decisions for yourself. The Healthcare Proxy document is entirely separate from the Durable Power of Attorney
New York and New Jersey Law allows you to appoint someone you trust to make healthcare decisions for you if you lose the ability to make decisions yourself. By appointing a healthcare agent, you can make sure that healthcare providers follow your wishes in regard to what actions you want taken if you are the victim of a sudden traumatic accident or medical event (such as a stroke) or if you become severely ill and are in a coma, become vegetative, suffer from advanced dementia, or are terminally ill and in pain.
Because life is so unpredictable, and tragic events sometimes occur in the lives of very young people, at Merlino & Gonzalez we consider it prudent for all adults over the age of 18 to have a Healthcare Proxy. Although most of us don’t want to think about such possibilities, this is a way for all of us to exert some control over otherwise uncontrollable events.
One of the major decisions you have to make when appointing a Healthcare Proxy is whether the person you choose is likely to be able to follow your guidelines when faced with the trauma of your incapacity. If not, you should make another choice.
It is crucial that you work with a sharp, well-informed attorney when setting up a Healthcare Proxy so he or she can make sure that your stated wishes fall within the boundaries of the law; otherwise, they will not be carried out.
Your Healthcare Proxy can take over for you in making healthcare decisions for you are temporarily incapacitated, such as when a surgical choice to be made while you are under general anesthesia. On the other hand, if you are in a persistent vegetative state, suffering from a terminal illness that has left you unable to communicate, or have advanced Alzheimer’s disease or another variety of dementia, the Healthcare Proxy you have designated will be authorized to make decisions regarding your ongoing care, which medical professionals must follow.
Education On Living Wills
A living will is not the same as a Healthcare Proxy. The former allows you to spell out precisely which medical treatments you want under certain conditions, whereas the latter lets you appoint someone to make such decisions for you if your health declines to the point that you can no longer make decisions on your own.
A Living Will allows you to list medical treatments that you would or would not want if you became terminally ill and unable to make your own decisions, for example:
- Whether you want to be kept on life support if there is no reasonable hope of your recovery
- Whether you want to be hydrated or fed through a feeding tube or simply kept comfortable at the end of your life
- Whether you want to make any organ or tissue donations
HIPAA Authorization
Because HIPAA (The 1996 Health Insurance Portability and Accountability Act) (HIPAA) does not permit release of medical information even to someone you have designated as your Healthcare Proxy, you have to sign a HIPAA release form if order for your loved ones to gain access to your medical information.
We’re Here to Provide Education on Wills in New York & New Jersey
If you reside in New York or New Jersey, it is a good idea to bring your estate planning questions and concerns to Merlino & Gonzalez since we have offices in both locations. Our team has a strong track record of serving our clients with efficiency and personal care. You can depend on us to provide education regarding a will and draft one that is clearly worded as well as legally binding and to create all related documents in accordance with your wishes and appropriate to your needs. Contact us today.
Merlino & Gonzalez help residents of New York & New Jersey with their wills education needs. Since their primary office is in Staten Island, they receive a lot of clients there as well as in the boroughs of Manhattan, Brooklyn, Queens, & The Bronx.