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Tuesday, June 19, 2018

Avoiding the Most Common Estate Planning Mistake

Q: Is having a Last Will and Testament enough?

Skilled New York and New Jersey estate planning lawyers would likely agree that the number one biggest mistake people make--aside from not having an estate plan at all--is relying only on a Last Will and Testament (commonly referred to as a “will”).

A will is the required foundational document in virtually every comprehensive estate plan. Even for those whose particular situation warrants the use of trusts to distribute their assets outside of the probate process, a so-called "pour over will" would be executed to cover any probate assets not included in those trusts.

In addition, perhaps the will's most important function is that it’s the legal vehicle through which parents can designate the legal guardians for their minor children. Without a valid will naming the person you want to raise your children if you die before they reach the age of 18, the court will decide who will raise them--and it may not be the person you would've chosen. In some instances, they may even be placed in the foster care system.

But a will is not enough.

Your will goes into effect upon your death and provides for how you wish your probate assets to be distributed at that time. But there are other documents in a comprehensive estate plan and they are invaluable in the unfortunate but not uncommon event the maker becomes incapacitated before death.

A complete estate plan will include powers of attorney, living wills, and health care proxies.

The power of attorney designates a trusted agent to act on your behalf in financial matters in the event you become incapacitated and are unable to act on your own behalf. Your agent would be entitled to manage your property, tax, and retirement matters, pay your bills and handle banking transactions, buy and sell your real estate and more.

A healthcare proxy, like a power of attorney, designates a trusted individual to act on your behalf, but for healthcare rather than financial matters. This document is invaluable for all people over the age of 18 because illness, a tragic accident, or a traumatic brain injury can strike at any time. All adults need a trusted agent to make healthcare decisions on their behalf in such situations.

A living will, enables the maker to designate how they want their end-of-life healthcare decisions handled. Different from a healthcare proxy, a living will allows the maker to specify what medical treatments they would or would not want to have, such as whether they want to be kept on life-support, receive hydration or be fed through a feeding tube, and whether they want to be an organ donor.

If you live in New York or New Jersey and need help with an initial estate plan or would like to modify an existing estate plan, the estate planning attorneys at Merlino & Gonzalez can help you. Contact us today to schedule a consultation.

From our offices in Staten Island, New York, and East Brunswick, New Jersey, we serve clients throughout New York and New Jersey in all matters of estate planning and real estate law.


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