A power of attorney is a powerful document posing some danger to the holder. It is common to receive a power of attorney from an aging parent or relative in order to help them handle their personal affairs. In effect, it allows the holder to stand in the shoes of the giver and act as though he or she was that person as far as the outside world is concerned, but a world of trouble lies in wait for the unfortunate who fails to properly use the power.
In order to commence estate proceedings, it is first necessary that all persons essential to the estate receive notice. This would include any person named in the will or anyone who would have standing to object to the will. If there is no will, it would include all distributees — next of kin who would inherit pursuant to intestacy. In order to streamline the proceedings , a lawyer representing the petitioner seeking to be either the executor or administrator will start by mailing a waiver to every necessary person .
Every will drafted by an attorney is almost certain to have a residuary clause. This is an essential catch-all provision inserted to make sure that assets go where they are supposed to go. Here is an article by Dennis Fordham in the Lake County (California) News which provides useful information on this important provision of…
Your will should not be a do it yourself project. Here are some things to avoid doing when it comes to your will.
1. Do not make changes to your existing will by crossing out provisions and inking in your own new ones. In New York, the probate clerk will examine a will for alterations. A provision which has been stricken from the will with a new term inserted by pen or pencil will simply be ignored in favor of the original. If a portion of the will is blacked out with a marker, the entire will is going to be invalidated and the testator will be intestate.
2. Never make a copy of your signed will. This is an invitation to mischief after you are gone since a photocopy can ultimately be admitted to probate. This can lead to a situation where an interested, if less than honest relative may find both the photocopy together with the original of your latest will. If the photocopy treats that person better than your later will…..just guess which is the one to actually be brought to a lawyer to be offered for probate!
The New York Times has published a rather comprehensive, if brief, overview of trusts. For those of you who find all of the acronyms we use to describe various trusts, this may prove to be very helpful.
your lawblogger would add a little postscript to this article with regard to the issue of whether of…
Newsday reports that Nassau County Surrogate Edward T McCarty III has denied the application of Leatrice Brewer for a share of damages recovered from the county for negligence of the Department of Social Services in failing to prevent her drowning her three young children.
Today, the Second Department of the Appellate Division vacated a default in theMatter of Skolnick, (2013 NY Slip Op 05364) reversing the decision of the Surrogate’s Court of Rockland County. In this action, the objectant Stacy Ross had unsuccessfully attempted to vacate a default in the lower court after the Petitioner had failed to…
Nassau County Surrogate Edward W. McCarty III has ruled in the Matter of The Estate of Walsh (2013 NY Slip Op 51060(U)) that an in terrorem clause in the decedent’s Will was not violated when a beneficiary of the estate opposed the executor’s turnover petition seeking to recover the proceeds of a joint account which was in the name of her sister and the decedent and which the executor claimed was merely an account of convenience for the decedent. Upon her sister, Joan Tipping responding to claim the proceeds of the account as her own, the executor, Patricia Walsh attempted to invoke the Will’s in terrorem clause which provided that a legacy would be forfeited if the beneficiary filed a claim against the estate later determined to be invalid.
If you have minor children, your legal affairs are not in order without a Will with a minor’s trust. Your lawblogger’s first boss used to say that the cost of the sports car your child purchases at eighteen is directly proportional to the amount of his or her inheritance. Some lawyers –including yours truly– will refuse to prepare a Will which omits a trust if minor children are involved. A trust is an absolutely necessary vehicle to manage your assets for the benefit of your children — even after they turn eighteen. Kids who have lost their parents need expert guidance to handle substantial sums of money until they mature later in their twenties (my trusts run at least to the age of twenty five).
Don’t think you will have enough to leave your kids to make a trust worthwhile? Just consider that the instrumentality of their orphaning is likely to be a catastrophic accident. Instant fortune even though you will not be here to enjoy it.
Your lawblogger gets calls on a regular basis from folks wondering what is happening with a parent’s estate. Most are concerned that a relative whom they do not trust is doing something improper behind their back. The safeguards against this in New York are just about foolproof.