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Estate Planning: Frequently Asked Questions

Common Questions About Estate Planning

What is estate planning?

Understanding estate planning is the crux of why we do what we do here at The Law Office of Michael J. Brescia, P.C., because we care about each of our clients and want to ensure that they and their loved ones futures are protected in the short and long term happenings of everyday life. Estate planning is a means of protecting your estate (assets, property, inheritances, etc.) in order to make sure that they are handled the way you would want in the event of an incapacitating illness or death. This gives you (and possibly your spouse) the power to determine what happens with everything you own once you die. And while we like to assume that we will live long and full lives, we can never know when our last day on earth will be.

Estate planning offers a level of security to families so that if something tragic does occur, they can rest assured that their family members (no matter their age) are taken care of when they die. Estate planning also will help make sure that the taxes on your estate are either all together eliminated or significantly reduced, making things much easier for those you leaving in charge of executing your desired plans later on.

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What types of things make up a person's estate?

An estate is made up of the total property owned by a person, including both assets, such as real estate and liabilities, such as mortgages or debts. Property may be real property, such as houses, apartment buildings, land, or commercial buildings and personal property, such as vehicles, jewelry, art, collectibles, musical instruments, furnishings, any type of equipment, boats, bank accounts, stock portfolios, insurance policies, cash, retirement funds, notes or loans that are receivables, and more. It is common to think of estate in terms of only the rich, but most people have something that constitutes as their personal estate, regardless of its size.

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Why is estate planning important?

While planning an estate may not be mandatory, it is a highly encouraged decision to make and this wise choice now can benefit you and your family down the line. If you die without an estate plan, such as a will or trust, your property will not be distributed according to your wishes or desires. You will have no input as to how your estate will be disposed of. You will be subjecting your estate to probate, creditors, lawsuits, judgments, death taxes, and the possible squabbling of relatives and heirs, all of which can take a chunk out of the total value of your estate. With an estate plan in place, you can pass on your property to the people you choose with the least amount of tax liability and other costs. It is often left up to the family or other loved ones of a deceased individual to handle their affairs and divide their estates. There are many walls they can run into during the probate period, distributing the estate and through other key times. Dealing with some of these issues beforehand can provide monumental relief and reduce time and stress.

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When is it best to have a will as opposed to a trust in an estate plan?

Whether a will or a trust is the better tool to use in an estate plan or a combination of both depends entirely on what is in involved in the estate and what your objectives are. In some cases, however, a will is optimum when the estate is so small that the probate process will not be required or when it is safe to leave the estate through a plan using beneficiaries and / or joint tenancy of property ownership. This works when there won't be any major death taxes, when it isn't necessary to hold some part of the estate in a trust fund to be paid out gradually to an heir, as for a college education, and when the estate owner does not have mental incapacity which might make financial transactions difficult or impossible.

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What is a trust and what does it do?

A trust is a legal entity set up to take care of property for the benefit of heirs and beneficiaries. It is basically a contract between two parties for the benefit of third parties. A grantor (owner of the estate) and a trustee (manager of the estate) create a legal private agreement wherein the trustee will protect, control, and transfer the property to the heirs according to the terms of the agreement. A living trust is where the grantor maintains all three of the trust positions; he is grantor, trustee, and beneficiary. Depending on what you wish to accomplish with your estate, you should work with an experienced estate planner such as the Long Island estate planning lawyer at the firm who can advise you on the best plan for your needs.

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Who should plan their estate?

It is a common misconception that estate planning only pertains to the top 2% or other highly wealthy individuals. This misconception is not completely unfounded. It certainly is an incredibly important step for those with significant resources and assets to ensure they are protected, but it is not only them that should do so. In fact, almost anyone can truly benefit through the process of planning and protecting their estate. Unforeseen events can happen at any time leaving those that weren't proactive at the mercy of chance. Taxes, real estate, life insurance, probate, cars, jewelry, funeral arrangements, medical care and more can be covered in these terms and these are factors that influence more than just the top financial few. Not only does estate planning provide a sense of assurance for the owner themselves, many obstacles in the event of their death can be avoided; allowing their family to focus on what is important during that time instead of what tasks they need to get done to handle the estate of their loved one.

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Does everyone have to go through probate?

For those that are looking to authenticate and move forward with the will of a loved one, they will need to go through this process if the monetary value is above a certain level. Without it they will be unable to carry out the terms that are outlined in it. Probate can be a simple or difficult process depending on how clear the will was and how well it is handled in the aftermath. While you will have to deal with it if you are looking to establish a will's validity and carry on with managing the estate, there are things that you can do to help make the process smoother.

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How do I avoid probate?

In the state of New York, there are a number of ways in which you can avoid probate, the most common form by way of establishing a living trust. This will offer probate protection for essentially all of your assets including any real estate you may won, vehicles, bank accounts retirement funds, etc. A Long Island probate attorney at our firm can help you walk through these different options in order to help you plan for your future. Another way you may be able to avoid the process of probate is by having some form of joint ownership with your property. For example, you may choose to have a separate estate plan, and if your spouse who shares in the ownership of the home is still alive when you die, then they will have the right of survivorship, therefore avoiding probate. Joint property comes in one of two ways in the state of New York: joint tenancy or tenancy by the entirety. First, joint tenancy is when a couple buys their property together, regardless of whether they are married, simply using their shared accounts. As long as they are considered to hold an equal share in the property, when you die they will rightfully take full ownership. The second is tenancy by the entirety and this applies only for couples who are married, though with the same right to take full ownership as mentioned above.

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Can I represent myself?

Depending on the situation, there are different levels of need and seriousness involved in a case. While you may be able to represent yourself, the more important thing to look at is whether you can retain the outcome you are looking for alone, if you have the time to devote and if the difficulty is worth it in the end. An attorney is experienced and has handled many of these cases before. They are likely to have valuable insight and can oversee that the process is dealt with efficiently. Not only can they offer you direction in what route to take in regards to your estate plans, they can also provide trustworthy counsel regarding how to leave assets to certain family members. For example, if you have a child who may be unwise with how they spend your inheritance, a Long Island estate planning lawyer can direct you on different options to protect your child and your estate. If you are looking for a wills and estate lawyer you can trust, our firm is the place for you. Please do not hesitate to contact us with any further questions or concerns you may have!

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Wills & Trusts: Frequently Asked Questions

Common Questions About Wills & Trusts

Few people are familiar with the process of setting up a will or a trust. If you are one of the many who have questions about these matters, you are not alone! At the Law Office of Michael J. Brescia, P.C., we are here to help. Our Long Island estate planning lawyer has been in practice for over a decade and focuses extensively on wills, trusts, and other estate planning matters. Read below for short answers to some of the most common questions about wills and trusts. We then encourage you to call us at (631) 386-8767 to receive detailed answers from an attorney who knows!

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What is a will?
A will is a statement of your desires regarding how you want your estate to be handled and your minor children (and other dependents) to be cared for after you pass away. In most cases, a will is a written document that is signed in the presence of witnesses in order to ensure that it is holds up in court.

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What is the difference between a last will and a living will?
A last will – also known as a "testamentary will" or a "last will and testament" – expresses your desire regarding the handle of your estate and the care of your dependents after you are gone. Living wills dictate your desire regarding medical care in the event that you become incapacitated, such as resuscitation and life support.

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Do I need a will?
Everyone can benefit from having a will. Even if you don't think that you have "a lot" or "enough" assets or property to leave behind, having a will makes the probate process much faster and simpler for your loved ones after you're gone. Your family won't have to guess what you would have wanted; they will know your exact will and so will probate court. Otherwise, the distribution of your estate – however large or small it may be – could take a long time as your family and dependents try to work out "who gets what."

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How do I get a will?
Obtaining a last will is relatively simple. You make a list of everything you own – including your financial assets, contents of safety deposit boxes, and the like – and explain in detail how you want your property to be handled / distributed after you pass away. There are many ways to write a will, but some formats are better than others. The key is to be clear, concise, and comprehensive about your property and your desires so that your last will cannot be misunderstood.

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Trust FAQs

What is a trust?
Living trusts place all or part of your estate into the legal care of a trustee, who manages and administers the trust on behalf of a third party (the beneficiary). The beneficiary can inherit the trust at a time of your choosing. This can be when the beneficiary turns a certain age, a certain date in the future, or at the time of your death. Trusts allow you to protect your financial privacy and to avoid probate.

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What types of living trusts are there?
There are two basic types of living trusts: revocable and irrevocable. Revocable living trusts can be changed at any time while the trustor is still living. While this makes the trust more flexible, it also results in estate taxes and less financial security. All assets in revocable trusts are considered your personal property and are not protected in case of taxes, lawsuits, etc. Irrevocable living trusts still help to avoid probate, however.

Irrevocable living trusts cannot be altered after the trust agreement is signed. Since it cannot be changed by the trustor, it is no longer considered the trustor's personal property and therefore results in reduced estate taxes and higher asset protection. Irrevocable living trusts also assist in avoiding probate.

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What is Power of Attorney?
Power of attorney is a written and signed legal agreement granting one person to have legal authority over the affairs of another person. Power of Attorney documents are often obtained together with a living will or last will, giving another person the right to make decisions on behalf of the testator in the event that the testator becomes incapacitated. For example, if someone is in an accident and is incapacitated, the attorney-in-fact or agent that they named in their POA has the legal right to make decisions on the testator's behalf.

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Do I need a trust?
Anyone can benefit from having a trust, but it is not necessary for everyone. If your estate is worth multiple millions of dollars, than a trust is probably a wise decision for you since a trust provides excellent asset protection, can reduce estate taxes, and helps to avoid probate. Speak with an estate planning attorney to discuss your situation and find out whether or not you need a trust.

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Should I get a will or a trust?
Every person's estate is different. Some people only need a will, while others decide to draft a will and a trust. If your estate is relatively small, then you would probably do will with just a will. Larger and more complex estates can be protected by having both a will and a trust. But again, every case is unique, so consult an estate planning attorney to ensure that you make the best decision for your case.

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Do I need a lawyer?
If your estate is large or complex, then you definitely need a lawyer to help you draft a solid last will, living will, or living trust. Individuals with smaller estates can technically draft their own will and sign it in the presence of witnesses; however, having a knowledgeable attorney by your side to help you can give you peace of mind, since you will know that your will and/or trust is clear and comprehensive. In most cases, it is a good idea to hire an estate planning lawyer.

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Probate: Frequently Asked Questions

Common Questions About Probate

Questions often arise when you are dealing with the probate process, and the attorney at our firm is here to help. This page answers some of the common inquiries you may have regarding probate. If you have any other questions or concerns, please contact our experienced Long Island probate lawyer who will gladly discuss your probate concerns.

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Are lawyers needed when handling probate?

Lawyers are not necessarily needed to handle a probate case. However, there are many legal procedures involved in the administration and distribution of estate assets. Legal documents must be filed, and proper rules and procedures must be followed. If any of these things are done incorrectly, there may be serious consequences. If an administrator or executor does not own up to his or her fiduciary duties, they can be held liable for damages or losses that ensue.

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What exactly is probate?

Probate is when a deceased's estate is administered and processed through the legal system. This includes validating a will, appointing an executor or administrator, inventorying estate property, paying off debts, and distributing the estate.

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Is probate necessary?

In New York, probate is required when a decedent died with assets valued at $30,000 or more. If property is under $30,000, a small proceeding may be filed. The fee to file this with the Surrogate's Court is $1.00.

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How long does probate take?

There is no set time for the probate process in New York. It depends on how long the notification process takes, if there are objections to the will, etc.

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Does an executor receive compensation?

Yes, an executor receives commission. In New York, they will get paid based on the percentage of the value of the probate estate. The commission rate for each executor is %5 on the first $100,000 in the estate, 4% on the next $200,000, 3% on the following $700,000, 2.5% on the next 4,000,000, and 2% on anything over $5,000,000.

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What happens if someone dies without a will?

If someone dies without a will, they are considered intestate. New York laws then describes how assets will be distributed among the surviving members. The process leading up to the distribution of assets is similar to that of when a person who dies with a will.

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Contact an Estate Planning Attorney in Long Island

The Law Office of Michael J. Brescia, P.C. has over a decade of experience in estate planning, estate and trust administration, estate and trust litigation. Our Long Island estate planning lawyer is highly experienced with wills and trusts and can guide you step by step through the process.

Call today at (631) 386-8767 to contact us for a free consultation and learn how we can help!

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  • Nearly 15 Years of Experience

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