Basic Elements of an Estate Plan

Wills

A Will specifies who will inherit the things you own, that you have not already designated otherwise on the account or asset. For example, if you have a joint bank account with John Doe, the bank account will be John’s when you die, and will not pass though your Will. Named beneficiaries on life insurance, pensions, IRAs, savings bonds, 401(k) plans, etc. will receive those assets first. Only those assets that are in your name alone, with no other person named as beneficiary or jointly, will pass though your Will.

Your original Will must be found. Copies, carbon copies, photocopies cannot be probated in Surrogate’s Court. If your original Will with your ink signature and the ink signature of the witnesses cannot be found, it is presumed that you destroyed the Will before you died.

Your Will cannot be altered. Handwritten changes on a Will are either ignored, or the Will is considered voided by the Court. If you need to make changes to your Will, have those changes made in a new Will by your attorney.

Your Will cannot be unstapled and re-stapled, or it appears altered and would be considered void by the Court. If your Will was unstapled and re-stapled, have a new Will prepared by your attorney.

Durable Power of Attorney

Prior to September 1, 2009, a Durable Power of Attorney was a very weak document that was usually considered to have “expired” a year or so after it was signed. If you signed a Durable Power of Attorney prior to September 1, 2009, you should have a new Durable Power of Attorney prepared by your attorney now.

The new Durable Power of Attorney is longer and has many more issues to consider, including whether you want a successor agent, or a monitor to check up on what your agent is doing.

There is also a new Gifts Rider that should be discussed. Do you want your agent to be able to make the gifts you have been making all along, such as birthday gifts, holiday gifts, and other similar gifts? Do you want your agent to be able to make gifts or transfers to implement your estate plan, or for Medicaid qualification and benefits for you? Do you want your agent to be able to make gifts or transfers to himself or herself? Do you want your agent to be paid for the job he or she is doing in handling your financial affairs?

The new Durable Power of Attorney, with or without the new Gifts Rider, should be prepared by your attorney as part of your complete estate plan.

Health Care Proxy

New York has a statute or law that allows you to prepare a Health Care Proxy with whatever wording you choose. The problem with the standard Health Care Proxy for many people is the lack of specific wording, leaving you to fill in the specific wording. For many people, this is difficult or impossible.

I have prepared my own Health Care Proxy that is many pages in length, and covers virtually all types of medical situations in the Health Care Proxy. It gives you choices to provide to your health care agent, and also has you choose whether or not to include hydration and nutrition in the matters to be handled by your health care agent.

This is a much more complete and inclusive Health Care Proxy than the standard form, and I recommend this Health Care Proxy be prepared as part of your complete estate plan.

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