State Restrictions: Even though the vast majority of states allow for living wills, there are a small number that do not recognize them at all. If you move to one of these states you’ll have to enact other advance directives that will enable you to ensure your health care decisions are honored. States may also place different limits on when you can use a living will that other states may not have.

Other Directives: A living will is not a substitute for other types of health care directives, so even if you move and create a living will, you may also have to create a health care proxy. Living wills are great for putting your choices in writing, but in your health care proxy you designate an agent who will stand in for you and make the decisions you cannot, communicate directly with your doctors, ask questions, review your medical records and take other actions that your living will cannot.

• Execution: The execution of a Will is the formal signing of the document. This signing must comply with state laws and includes various elements in order to be successful. For example, all states require that both the testator and two competent witnesses sign the document. But does the testator sign first? What if the witnesses sign first? Do the witnesses have to sign in each other’s presence or in the presence of the testator? All of these questions can impact the validity of the execution and, if not properly accounted for, can lead to a fatal execution error.

• Fatal Error: A fatal execution error is an error during the execution process that invalidates the will. This means that even if you’ve created a Will and stated in detail all of your preferences, if a court later finds a fatal execution error it will determine the Will is invalid. It will then disregard your Will and your choices will have no impact on how your estate is distributed.

Pursuant to the EPTL, a defendant can use a contributory negligence defense as a legal defense to a wrongful death lawsuit alleging negligence. Contributory negligence is a legal claim asserting you were also negligent in causing your own death. However, contributory negligence is an absolute defense only for suits that arose before Sept. 1, 1975. For cases arising on or after Sept. 1, 1975, contributory negligence is no longer an absolute defense.

If your personal representative refuses to bring a wrongful death action on a decedent’s behalf, the EPTL allows the beneficiaries or distributes of a decedent’s estate to request an appointment of a substitute administrator or personal representative who will maintain the action. To further understand your legal rights to sue for wrongful death on an estate’s behalf, contact us today.

The EPTL provides mandatory statutes of limitations or time limits in which a personal representative can sue someone on a decedent’s behalf for wrongfully causing his death. Section 5-4.1 of the EPTL sets the statute of limitations at two years. Your personal representative or executor of your estate must file a wrongful death lawsuit within two years of death. However, the EPTL contains an exception to the two-year statute of limitations for the Sept. 11, 2001, terrorist stacks. In this case, a lawsuit alleging a wrongful death caused by the Sept. 11, 2001, terrorist attacks are subject to limitations period of two years and six months from the date of the decedent’s death.

If the decedent’s death was caused by a criminal action and not just a wrongful or negligent act or failure to act, the EPTL allows the personal representative or executor of the decedent’s estate to maintain a wrongful death lawsuit within one-year from the date the criminal action terminates or ends. Thus, if the state maintains a criminal action against an individual or company for your death, your personal representative, administrator or executor has another year from the date the criminal action terminates to commence a wrongful death proceeding.

Check out our blog tomorrow to read Part 3 of How Can an Estate Maintain a Wrongful Death Lawsuit on a Decedent’s Behalf?

According to Section 5-4.1 of the New York Estates, Powers and Trusts Law or “EPTL,” a personal representative can maintain an action on the decedent’s behalf for a wrongful death claim. This Section of the EPTL allows a personal representative appointed in New York or in another state to sue another individual or company for the decedent’s wrongful death. A personal representative can maintain an action for monetary damages against someone else whose neglect, willful or wrongful act or intentional act caused your death. Typically, the standard of care is that the individual or business owed you a duty of care and but for its wrongful act, you would still be alive.

If you are the personal representative, executor or an administrator appointed to administer a decedent’s estate, you have a legal right to maintain a wrongful death lawsuit on the decedent’s behalf pursuant to the EPTL. To understand your legal rights, you can contact our office today.

Join our blog tomorrow to read Part 2 of How Can an Estate Maintain a Wrongful Death Lawsuit on a Decedent’s Behalf?

Under New York law, an executor can become personally liable for repaying creditors if they distribute a decedent’s assets before properly accounting for all of the decedent’s creditors. As an executor, you should make sure you receive a written agreement from each beneficiary promising to return any property if you are unable to repay creditors or other debts the decedent was responsible for paying. You must also prepare a written inventory or accounting of the earned assets within the estate and the distributions you’ve made during your administration of the decedent’s estate. However, beneficiaries can waive a formal judicial accounting as long as they are of legal age to make those waivers.

It may be in your best interest as an executor of a decedent’s estate to conduct a formal judicial accounting to obtain a formal discharge from the Surrogate’s Court. Your formal accounting will contain your total commissions earned under the decedent’s will or pursuant to statute unless you waived your commissions. Typically, your formal accounting should be done by your estate planning attorney.

After notifying potential creditors of the decedent’s death, paying taxes and other expenses, they must distribute the decedent’s assets to the named beneficiaries. If the decedent died without a valid Will, the personal representative or administrator is responsible for locating all of the decedent’s heirs and distributing their assets to their heirs pursuant to the state’s intestacy laws. The intestacy laws dictate which heirs are entitled to receive a decedent’s property if they died without a Will and the amount of each inheritance.

Check our blog tomorrow to read part 3 of New York Law and Executor’s Rights and Duties.

Your executor is entitled to receive a reasonable compensation based on the gross value of your estate. However, they may waive their compensation or commissions. Typically, banks and other financial institutions that offer professional services as executors will require the statutory amount for commissions.

Your spouse can serve as your executor and remain a beneficiary under your Will. If you want to appoint your spouse as the executor of your estate, and your spouse is also the sole beneficiary, your spouse can perform their own distribution of your estate as the sole surviving beneficiary and surviving spouse before paying all of your creditors because of their continuing personal liability to remain responsible for paying your creditors. Furthermore, they may not have to conduct a formal judicial accounting as the sole beneficiary and executor of your estate.

Check in with us tomorrow to read Part 2 of New York Law and Executor’s Rights and Duties.

In addition to properly funding your living trust, you need to appoint an individual or trust company to oversee and administer your living trust. The New York Estates, Powers and Trusts Law governs the administrative duties of trustees. Specifically, Article 7 of the New York Estates, Powers and Trusts Law sets forth the specific rules governing trusts. Part 2 of Article 7 establishes the specific duties and rules governing trustees.

Although there may be public confusion whether living trusts are contestable, they are. An attorney can minimize the opportunities for trust contests, but it is impossible and illegal to place a blanket provision in your trust prohibiting future contests. You should avoid sales pitches by trust companies attempting to sell you their trust services if they falsely promise to make them “fool-proof.” If you purchased a service from these companies, make sure you talk to your attorney about the living trust document they sold you before returning them.

A living trust does not have to go through probate, and your living trust is not a part of public record, as your will is. A living trust may be a good idea to help you address setting aside enough money for a child or incapacitated adult who is unable to take care of her own finances. You can give your trustee specific instructions for distributing money to a guardian to address those special concerns.

Your attorney may decide that a living trust is unnecessary to meet your estate planning goals because other instruments, such as payable on death accounts, may address them. After discussing your needs with your estate planning attorney, your attorney can discuss the benefits with you. You can contact our office today to discuss whether a living trust is appropriate for your individual estate planning needs. If you contact our office we can help you determine the costs and benefits of creating a living trust as part of your estate planning documents.

Check in with us tomorrow to read Part 3 of An Insider’s Guide to Living Trusts in New York.