New York Laws Regarding Wills

Filed Under Estate Administration, Per Diem Legal Services · Tagged:  

When it comes to laws regarding wills, every state has their own requirements as to what is legally acceptable.  These laws are designed to protect their citizens from being taken advantage of when they are older or ill.

In New York, you have to be legally capable, which means you have to be at least 18 years old, of sound mind and memory, and you also must be making the will of your own choice and not be being forced by someone else. If any of these circumstances are not met, then the will is not legally binding.  Now, if the will is handwritten, which in these days is pretty rare, then two disinterested people must certify that the handwriting is actually the right person’s.  If the will is typed then the only handwritten part allowed is the signatures.  This makes sense as this helps guarantee that there are not unauthorized changes made to the will by one or more unscrupulous beneficiaries.  You can even have an oral will, although the requirements are very strict with that, naturally.  Basically you can only have an oral will if you are in the armed forces during a time of armed conflict and three witnesses need to testify that they heard the will being said.  Obviously, for most people, that is not going to ever come into play.

New York law also allows trusts to be set up through a will.  A trust is a legal construct that allows a surrogate, someone who the deceased person trusted to act as they would have, to distribute the money and take care of property as the deceased would have wanted it handled.  This can be a lawyer but most often it is one member of the family who then legally has certain responsibilities.

Once you die, there is then a legal process called probate which is carried out in the county of your residence, no matter where you actually died.  This process allows the debts to be paid and all the assets transferred to the people and beneficiaries you wanted it to go to.  The people who survived you have to initiate the process with presenting your will in court and then eventually settle your estate once all the matters are taken care of in the correct legal way.

Contact the Law Offices of Ronald J. Salvato to help you with any will administration needs you have.

New York Power Of Attorney

Filed Under Estate Administration, Per Diem Legal Services · Tagged:  

The power of attorney is an important grant and document in the modern set of legal instruments.  It addresses the problem of allowing one person to act in the name of another.  The concept begins with the idea that each person is legally responsible to make their own decisions and in general no other person possesses that power.  This addresses the human tendency and perception that when one person becomes very familiar with another, they begin to presume the right of decision making for that other person.   The law says that this is never the case.  Thus, a wife that says she should be able to decide what happens with a vehicle that is in her husband’s name only, does not actually have that right.  In her mind, it may make sense that it be so; after all they are married.  The husband may even agree with her.  But the law does not.  That same wife may say that at least she is allowed to make decisions for her children, but if they are of adult age, that isn’t so either.  In general, there is no relationship that implicitly grants one person those rights of decision for another.

This is problematic for logistical reasons.  Perhaps the husband from the previous example has now had a car accident and is in a coma.  The doctors want to prolong his life, but his wife knows that her husband would want them to take him off the machines.  However, she cannot legally make that decision, and the husband has no way (short of other legal instruments such as a living will) of making his wishes known.  In fact, before the car accident, he wants to let his wife have that power.  (And he wants to let her have her way with his vehicles as well.)  This is where the power of attorney comes in.  This is a document which grants specific rights to another person that otherwise would be limited solely to the primary person.  It has been used in both of the previous examples: to allow a spouse to dispose of her husband’s property or to make decisions in the absence of the husband’s ability to speak for himself.

It is not hard to imagine that a power of attorney is a very powerful instrument.  Granting another person your legal rights is serious business.  If you execute a power of attorney, you will have no legal recourse if the person you granted power does something you didn’t want them to do.  For this reason, these documents should be executed by a power of attorney lawyer.  Any New York power of attorney should not be drawn up until the primary person understands all the ramifications of such a document.

Contact the Law Offices of Ronald J. Salvato to help you with any power of attorney needs you have.

Dying Without A Will In New York

Filed Under Estate Administration · Tagged:  

New York, like other states in the nation, has a set of laws that apply to the situation where a person dies without a will.  This is known as the person dying intestate.  These intestacy laws are the rules and procedures for determining how to distribute the assets and property of the deceased when there is no will available.

The legal consequences of dying without a will can depend on a number of things including, how much property and assets the deceased had at the time of his or her passing and whether or not he or she has a surviving spouse and/or children.

While the New York rules for distribution will need to be applied to each case individually, the general rules are as follows:

  • If there is a surviving spouse and children, then the spouse will get fifty thousand dollars and one-half of the estate, while the children will receive the balance. 
  • If there is a surviving spouse and no children, the spouse will get all of the assets and property. 
  • If there are surviving children but no spouse, then the estate is divided between the children equally by representation.
  • If there is one or more surviving parent, but no spouse and no children, then the estate is given to parent or parents.
  • If the deceased has no surviving spouse, no children and no parents, then the estate is divided between any surviving siblings, by representation.
  • If there are no parents, children, spouse or siblings, but there are surviving grandparents and aunts and uncles, then half goes to the paternal grandparents or if they are not alive then to any of their children in by representation.  The other half will go to the maternal grandparents, unless they are not living then to any of their surviving children by representation. 

Under New York law half blood relatives are treated as if they were whole blood relatives and if a child was conceived before person dies but is born after, they will be treated as if they had been born in his or her lifetime.  You should also realize that before distribution can take place, reasonable debts of the deceased, costs of intestate administration and reasonable funeral expenses will be deducted from the estate.

Administering an estate without a will can be confusing without the help of an experienced estate attorney.  The best way to understand how these New York intestacy laws will apply to the estate of a person who has died is to consult a legal professional.  An estate lawyer can help you determine whether or not legal proceedings are necessary and can guide you through other matters that will need to be handled as part of the intestate administration.

Family Member Dies Without A Will

Filed Under Estate Administration · Tagged:  

If one of your family members or someone close to you dies without a will or other estate documents prepared you may be wondering what you need to do.  In addition to the loss and sorrow you might experience with the passing of a loved one, whether unexpected or not, you may be confused about how to proceed.  You may also be wondering how certain property will be distributed between those who are left behind.  During this time of confusion and loss the help of an estate attorney can be valuable.

Intestate is the word used to describe the situation where a person dies without a will.  A will is the document that sets forth the desires of the deceased with regard to how his or her property should be distributed between those left behind.  If there is no will, then the default is to use the intestacy laws or statutes that have been enacted by the state.
These laws can vary from state to state but they generally include the procedures for allocation and distribution of the property and assets of the person who has died.  The rules for who is entitled to property are sometimes referred to the rules of succession.

One question you may have is whether or not you need to file anything with the court.  Whether or not any court proceeding is necessary is usually determined by the value of the assets owned by the deceased at the time of death and whether or not they owned any property.

The fewer assets owned by the person who died, then generally the simpler the administration of the estate.  If the person owned real property, then collecting and administering that property can be more complicated than if only money is involved.  Whether or not the person was married at the time of death can also affect how the estate should be administered.  Administering an estate without a will is particularly complicated if there are children, as well as a spouse, that are left behind.

Administering an estate without a will can go more smoothly when you involve a legal professional.   An attorney who specializes in intestate administration can help you figure out the best way to proceed and understand the legal consequences of intestate.  An estate lawyer can help you determine what documents if any need to be filed, how to communicate with banks, the DMV or other agencies that might need to be notified of the person’s passing.  The Law Offices of R. J. Salvato have the legal expertise and experience to help you navigate this difficult period.