Going through a divorce isn’t easy. There are several legal matters that you have to consider before you file for one. While planning for the future is the top priority for couples filing for a fault or no-fault divorce, it’s also imperative to sort out your estate plans before or immediately after a divorce petition is filed.
Once your divorce is filed and finalized by the court, don’t delay separating all your relevant estate planning materials. Also, it’s vital that you update your estate plan after you marry someone else or if you have children from a second or prior marriage.
Why is it important to update your estate plan?
If you don’t separate your estate plan after a divorce, your former spouse or their immediate family still has the right to take on a large portion of your estate after your death, leaving a smaller portion for your family members or children.
Even if you don’t want your former spouse to have a portion of your estate, it may happen if you don’t spell out your intentions and wishes in your estate plan. The majority of American states don’t allow former spouses to inherit real estate under a Last Will and Testament. However, they can still inherit other assets in the estate plan.
An Example to Help You Learn
A woman in New York passed away in 2010 after she divorced her husband a few years earlier. Her estate plan (before her death) stated that her spouse should inherit her home, along with all other assets.
She had further specified that her father-in-law be the secondary beneficiary to her residential property. While New York’s law kept her former husband from taking over the home, her father-in-law could still inherit it as the second beneficiary.
Her children claimed to the probate court that their mother put forward another will, in which she removed her father-in-law’s rights on her property. However, her children were never able to find the second will, and as a result, the court ruled in favor of her former husband’s father.
What to do after your divorce is finalized?
After your divorce, here are some things you must do:
Update all the documents that are relevant to estate planning
Create a new will and redo the old one
Provide your family members and children with a copy of the new and the updated will
Find another probate attorney to help with estate planning and make sure your attorney works for your best interests.
Update all your bank accounts, individual retirement accounts, trusts, annuities, and life insurance policies to remove your former spouse as a beneficiary
When we talk about estate planning, many people immediately associate it with the ultra-rich. However, contrary to popular belief, anyone can benefit from having an estate plan no matter what their net worth is. According to Forbes, only 42% of the adults in the United States currently have an estate plan such as a living trust or a will.
While end-of-life planning can be depressing and seem morbid, it is essential to protect you, your assets, and your loved ones after you die. If you haven’t started drafting your estate planning documents yet, consider the following reasons why it is essential to talk to an estate law attorney as soon as possible to get the process started:
If a person dies without an estate plan, the matter of distribution of assets is passed on to the courts who handle everything from the distribution of the property, the dissolution of the business, and the guardianship of the children. The process is known as probate, and it can get seriously complicated and expensive. By preparing the documentation in advance, you can save your family and loved ones from numerous complications and legal issues after your death.
Keep Your Children from Ending Up in Child Protective Services
It might be unpleasant to think about your death, but it is essential to take some time and consider what would happen to your children if you suddenly died. Where will they end up? Who will take care of them?
If you don’t have an estate plan that clearly mentions a guardian that you have chosen, your children will end up with Child Protective Services, while the courts decide the best candidate to be their legal guardians. The process can take a long time, and your kids could end up with someone who would be your last choice for a guardian. Staying with protective services for a long time can also have a negative emotional impact on your child during a very vulnerable time in their life.
Not everyone cares about what happens to their wealth and assets after they have passed. However, not leaving an estate plan can result in huge disputes between family members regarding who gets what. This can create strong feelings of ill will between relatives and even break up families. By planning your estate documents, you save your family from making difficult decisions and eliminate the risk of any disputes by making the decision for them.
Get Legal Advice from Leading Estate Lawyers In New York
One of the best ways to avoid complications with your estate after your death is to hire an experienced estate lawyer to draw up the correct documents for you.
Ledwidge & Associates P.C. offers the services of leading estate law attorney Queens, estate law attorney Brooklyn, Manhattan, Long Island, and the Bronx. We can help you protect your assets from exorbitant inheritance tax and ensure that your loved ones will be well taken care of through living wills and detailed estate planning documents.
Almost 50% of U.S citizens over the age of 55 don’t have a will, which is surprising when you consider that this crucial document allows you to achieve in death what you’ve devoted your entire life to—taking care of those you love.
This can be a huge problem for heirs, since the legal process of dividing an estate – known as probate – can take a huge financial and emotional toll if there’s no will in place.
With that being said, just creating a will isn’t enough to safeguard your assets, prevent family disputes, and protect your final wishes. You also have to ensure that the will you create is legally sound and binding.
Avoiding the following common mistakes is a good way to start.
Planning Just For Death
If your will only addresses the fate of your assets when you die, it’s not complete. A truly comprehensive will also address what happens while you’re still alive. This means it should contain legally-binding, detailed instructions that designate and guide caregivers if you can no longer make sound legal decisions because of Alzheimer’s, dementia, or other health conditions.
Therefore, you should create financial and healthcare powers of attorney that can grant individuals the authority to make medical and financial decisions on your behalf.
A will represents just one of the ways in which properties and assets are divided after death. Beneficiary designations on insurance policies and financial accounts are another way, and the latter generally trumps the former.
For instance, if you want to bequeath all your property and assets to your new girlfriend, but your children are the designated beneficiaries on all your accounts, the statements in your will won’t count for anything.
Addressing Only Your Physical Assets
Forgetting about digital assets, such as email accounts, social media accounts, and online banking credentials, is a common mistake people make in the digital age. Some digital assets, such as particular photos, may hold some sentimental or financial value. Others, such as login credentials, can be abused if they fall into the wrong hands.
If you have an online presence, it’s vital that you bequeath your digital property and information in your will.
According to Forbes, the COVID-19 crisis has forced US citizens to consider estate planning more seriously. As the crisis’s volatility continues to impact our everyday lives, wealth transfer has become more common.
Before you get down to business and start writing your will, here are a few problems that you might face in New York:
A will contest is a legal effort made to invalidate a will. Anyone can contest a will if it’s believed to be procured by fraud or forgery. You can also challenge a will if you have reasonable grounds to believe that the testator lacked the mental capacity to write a will or was made to sign it under duress. A will can also be invalidated if it’s outdated, and a more recent version of it exists or if it isn’t compliant with the state laws.
However, you can’t contest a will just because you don’t like its provisions and terms. Other than that, you also must be directly affected by its outcome to challenge it. A legal heir or a beneficiary can only contest the will. After a will is successfully contested, the court invalidates the entire will, instead of a single provision.
In either case, it’s not easy to contest a will because the entire process also translates into court expenses. Only an experienced probate attorney can simplify the process for you.
There Is No Written Will
This shouldn’t surprise you. 68% of Americans currently don’t have a written will. Dying ‘intestate’ will only complicate the matters for their surviving descendants. According to the state laws, when someone dies without a will, the court decides how the estate will be distributed.
When a New York resident dies without a will and no children, the surviving spouse usually inherits the estate. If there are more legal heirs, the surviving spouse only gets $50,000, and the rest is divided among the descendants. If there is no spouse, the entire estate is inherited by the descendants.
This is a problem because you might not want your estate to pass on to your surviving spouse, especially if you’re not on good terms. A large number of Americans prefer leaving their estate to charities. Your wishes will only be honored if you have a written will.
The Executor Isn’t Carrying out Their Duties Well
An executor is the individual chosen to oversee the probate and honor the deceased’s wishes. Your chosen executor can step down from the role or choose not to have a say in how the estate is distributed. This usually happens when they take upon the duty without realizing the gravity of the responsibilities and pull out later. In this case, the court will check if you name a successor executor. If there isn’t one, the judge will appoint an estate administrator to carry out the probate duties.
With the right probe representations, none of these problems are too big. If you’re based in Brooklyn, Manhattan, or Queens, The Law Offices of Joseph A. Ledwidge, P.C. can help you out! Joseph Ledwidge Attorney has around 20 years of experience in helping clients deal with complicated probate cases. Reach out for a free consultation.
Estate planning isn’t just for the rich. Irrespective of your current financial status, you should have an estate plan ready to help secure a financially stable future for your family after your demise.
If you’re under the impression that you can accomplish this all on your own, though, think again. Not only is that highly inadvisable, but it can also prove to be quite detrimental for you and your family.
For Legal Advice on Asset Naming
Here’s the thing: your will doesn’t automatically covers all your assets. You need to clearly state the different types of property ownership, retirement accounts, beneficiary designations, and life insurance terms. Otherwise, they’ll be considered to be independent of your will.
An estate planning attorney can review your assets and recommend asset titling options. They can also help you in changing beneficiary designations. This helps in time-consuming and costly procedures in the future.
For Professionally Drafted Documents
Another advantage of having an estate planning service handle your case is that you can be assured of professionally drafted documents and impeccable paperwork. You won’t have to worry about errors and inaccuracies in the documents, which can prove to be quite costly. They’ll take care of each and every aspect of the forms and applications, doing an immaculate job.
Moreover, an estate planning expert can customize your documents as per your specific situation and goals. They’ll arrange for the witnesses and required notary signatures, include all necessary details, and take care of the whole process without you having to worry about the piles of paperwork ahead of you.
For Timely Updates
You can’t create an estate plan and then never revisit it. With changing circumstances, wills, trusts, and other types of estate plans need to be updated. This is necessary so as to keep the contents aligned with the current situation.
For example, you may want to change details in your estate plan five years down the road. Maybe a close family member got married; maybe you relocated; maybe your family experienced a financial setback or blessing. Your life events affect your financial situation, which in turn affects your estate plan. Therefore, it’s important to keep it updated.
An estate attorney will remind you timely to review your documents. Moreover, they’ll also help you update your estate plan in case of changing state laws such as the 2017 Tax Cut and Jobs Act and changing governments.
A living will is a legal document that allows the creator to provide written instructions on how his or her health care should be managed in the event of incapacitation. Having a basic understanding of how these legal tools function is helpful both for those putting together an estate plan as well as those looking to administer a loved one’s estate plan .
What exactly is a living will?
This document is just one of many available in a well balanced estate plan and is particularly useful for end-of-life care. A health care proxy is similar. Instead of providing instructions for how health care decisions should be managed, the health care proxy allows the creator to name another individual to make health care decisions on the creator’s behalf.
Another important distinction between these two types of legal documents is the fact that the health care proxy is established under state law. Although the living will is not officially established under state law, the State of New York’s Office of the Attorney General notes that this document is generally accepted by New York Courts.
There are many benefits to putting together this type of document. Three of the more common include:
Control. This type of document allows the creator to remain in control, even if incapacitated. Whether unconscious due to an auto accident or hospitalized and fighting a serious illness, this document can outline exactly what type of care the creator wishes to receive – better ensuring the creator’s wishes are met.
Clarity. These documents also provide clarity. Loved ones will not wonder what the creator would want in these situation, these wants would be clearly listed within the living will.
Cost. Ultimately, use of a living will could reduce the costs to the creator’s estate. Without this document, loved ones could disagree over the creator’s wishes. This could lead to costly litigation and potentially deplete the assets of the creator’s estate.
These are just three of the many benefits of one document that composes a well balanced estate plan. Anyone that is considering adding this legal tool to an already existing estate plan (or starting an estate plan to begin with) is wise to contact an experienced estate planning attorney. This legal professional can guide you through the process of putting together or administrating an estate plan.
It is not uncommon for there to be differences of opinion in the administration of a will under New York law. Broad powers have been invested in the executor that is appointed under a will. However, with these powers come serious legal responsibilities. Failure to properly perform the duties may lead to legal action and in some cases personal financial responsibility. The probate court also has the power to remove an executor.
The executor of a will is required by law to maintain thorough records. Executors must carry out the provisions of the will and comply in all other ways with both the law and the last wishes of the deceased. They may not simply seize property for themselves or dispose of it without making a fair valuation and proper record of the sale. Executors must remember that they have fiduciary duties that extend to all of the will’s beneficiaries.
There is a natural unwillingness to invoke legal authority against the executor of a will, as in many cases that role is filled by a close member of the family. However, it is best to speak out against improper administration before it is too late and the entire estate has been inappropriately distributed.
It should be noted that even under the best of conditions and with the best intentions, executors sometimes make mistakes. They are not expected to be financial or legal professionals, and in fact they are entitled to seek the advice and counsel of a probate attorney when they need guidance on a particular matter.
Music fans and pop culture enthusiasts in New York were likely shocked and saddened by the news of Prince’s death, and some have begun speculating about what will happen to the late singer’s estate while others still mourn the legendary star’s passing. If Prince has a will, it has not yet been made public knowledge. This means his sister looks like the mostly likely candidate to inherit his fortune.
Prince died at age 57 in Chanhassen, Minnesota, and he was found collapsed in an elevator by first-responders when they were called to his home since staffers were not successful at reaching him by phone. His home and Paisley Park Studios are located in Minnesota, and state intestacy law dictates that parents, grandparents and siblings inherit the estate of an unmarried person with no children who dies without a valid will . This would mean his 55-year-old sister inherits everything though theoretically someone could try to appeal the probate court decision.
Both of Prince’s parents are deceased and were divorced but had other children, so Prince has two remaining half-sisters and a half-brother from his father’s other marriage and two surviving half-brothers from his mother’s other marriage. Prince’s net worth was estimated to be around $300 million, but his music catalog as well as unreleased recordings could drive the value of his estate far higher.
In the past several years, there have been many reports of celebrities dying without a comprehensive estate plan in place. It would be somewhat surprising if Prince had no will at all, but if so, the administration of his estate could be quite protracted.
New York residents may want to consider who they will appoint under a power of attorney as part of their estate plan. This is the person who among other duties will deal with their finances if they are unable to do so as a result of becoming incapacitated. In some families, choosing such a person may lead to conflict. One woman was concerned after her 66-year-old father had a stroke and appointed his girlfriend as attorney-in-fact. The girlfriend told the daughter that she was also being left everything in his will.
The daughter and her brother were concerned because they wanted to keep the house their father owned in the family. However, family members do not necessarily have this right over a person named in a will. They can have a medical evaluation for their family member if they are concerned that the relative lacks the capacity to appoint someone under a power of attorney, and they may want to speak to an attorney who has experience with conservatorship matters.
One problem in a situation like this one is that the children might be suspicious of the girlfriend, and the girlfriend may be suspicious of the children. However, it is important for family members to keep in mind that loved ones have the right to make their own choices even if they disapprove.
It is similarly important for a person to create a will and name an executor. However, many people die without making plans for the distribution of their estate. This is called dying intestate , and in such an event the decedent’s assets will be distributed in accordance with state law.
New York residents who are preparing their estate plans should not neglect to value their artworks correctly. By and large, art does not produce any revenue until it is sold, and it can be difficult to place an accurate value on paintings and other works because the among will usually change in keeping with prevailing market conditions. However, failing to do so can result in a dispute with the Internal Revenue Service.
One example occurred when an art collector owned three particularly valuable pieces by Pablo Picasso, Robert Motherwell and Jean Dubuffet. The owner died in 2009, and the Picasso sold at an auction for $12.9 million a year later, a price that was more than twice what had been set by the auction house. However, the estate valued the painting at $5 million on its 2009 estate tax return . The IRS thought that the Picasso and the other two paintings were all worth more than the value the estate had assigned them. It sent experts to assess the paintings’ value, and they valued all three of them at a higher price, with the Picasso being valued at $10 million. A formal Notice of Deficiency was issued to the estate by the IRS, and the case reached the U.S. Tax Court.
The court agreed that the state of the art market was worse in 2009 than in 2010, but it still sided with the higher assessment by the IRS for the Picasso, although it was lower than the painting sold for in 2010. However, the court sided with the estate with respect to the value of the other two paintings.
The value of certain types of assets that are contained in an estate often change after the estate plan is made. This can occur with art, but it can also occur with other investments as well. It is important that both the owner and the executor or administrator have a good sense of the current value of the assets for tax and estate administration purposes.