If you have paid life insurance premiums for years, the last thing you want to happen is for the insurance company to receive a windfall after your death instead of paying out to your beneficiaries. However, if your beneficiaries do not know about the policy, they will not know to make a claim. For this reason, part of your estate plan should include some way of letting your beneficiaries know about your life insurance policy.

New York’s Department of Financial Services strongly encourages insurers to check their unpaid premiums databases against the Social Security Administration’s records in an attempt to find unclaimed life insurance benefits that should be paid out. However, it might take months or even years for the insurance company to notice that you have passed away and that it needs to locate your beneficiaries. In the meantime, your spouse and children will not have the benefit of the life insurance policy you paid for.

You should reference all of your life insurance policies somewhere in your overall estate plan documents so that the people who need to know can tell your beneficiaries where to make a claim. It is also a good idea to store the policy information in the same place that you keep your other estate plan documents. At a minimum, make sure that your will’s executor will know about the life insurance policies as quickly as possible.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

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Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

As part of your estate plan, your  New York City estate planning attorney will draw up a wide range of documents for you. As part of the process, you will need to designate people to act on your behalf. You might need to appoint an executor, a trustee, a general power of attorney, a healthcare prox and more. You do not need to designate the same person to act in every role.

Speak with your attorney about what the people designated for each role actually do so that you can designate the most appropriate person. For example, the executor of your will has a short-term assignment. Once directives in the will are carried out, the executor’s role is over. However, a trustee may need continue administering the trust for years. Thus, you might want to consider a potential trustee’s ability to continue to act well into the future, which might not be as big of a concern for an executor.

Different considerations go into deciding who to appoint to different roles, such as appointing a power of attorney or a  healthcare proxy. An estate planning attorney will go over every role with you and has the experience to know what the most important factors are that you should consider. Make sure you ask your attorney about every role.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

A durable power of attorney allows an attorney-in-fact or an agent to make specific financial decisions on the principal’s behalf. A power of attorney document must be in writing and must comply with specific statutory formalities. Additionally, some banks may require parties to use their specific forms before they honor their power of attorney instruments. In most cases, you will have to sign your power of attorney document in the presence of a notary public and obtain the notary’s signature or seal. You may also need to sign your document in front of witnesses. You can limit your agent’s financial decision-making powers by specifying the types of actions your agent can take on your behalf. You can also further specify what types of financial decisions your agent cannot make.

Every power of attorney ends at the principal’s death. This means that if you die, your power of attorney is no longer effective, regardless of whether or not you revoked it or validly destroyed it. The termination is automatic. However, your power of attorney may also become automatically invalid if you become mentally incompetent. Unless you created a “durable” power of attorney, your power of attorney most likely ends at your mental incapacity. Although state laws may differ, most states require you to include certain words to express your intent in creating a durable power of attorney. You may need to include specific words, such as “to remain effective upon my mental incapacity” or “a durable power of attorney.”

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you have been appointed as guardian over an adult relative, it is not enough in New York to only manage the your relative’s financial affairs. You have explicit duties and responsibilities under New York law that you must faithfully carry out. A New York probate attorney can explain your duties in detail and even help you with some of them. The basic responsibilities are described below.

The first thing that you need to do after being appointed as a guardian over an adult in New York is to attend a six-hour class. In this class all of your duties and responsibilities should be explained, so pay careful attention. After that, you need to compile an initial report for the court that explains the condition of the adult over whom you have guardianship and details his financial assets. This report must be filed with the court within 90 days after you are appointed a guardian. An attorney can help you compile the required information.

Throughout your time as appointed guardian, you have a continuing duty to file yearly accountings with the court by May 31st every year. These accountings need to include all funds that came into the person’s account during the previous year and how you disbursed any funds. Finally, you must physically visit the person over whom you have guardianship at least four times every year.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you want to be appointed as a guardian of an adult relative in New York City, it is important that you speak to an experienced New York probate attorney. In New York, a guardian does not automatically receive complete control over all of an incapacitated person’s life. The court can grant limited powers covering only those areas that the adult needs assistance with. An attorney can assist you in tailoring your request to the needs of your incapacitated relative.

Most guardianships are for financial reasons. When people get older, many no longer have the ability to pay their bills on time and handle other aspects of their finances, such as filing taxes. If the incapacitated person is capable of handling his own health care decisions, however, the court will normally not appoint the guardian the power to make medical decisions until it becomes necessary. In other situations, a court might only appoint a guardian to prevent abusive or dangerous situations, such as self-harm by the incapacitated adult or financial abuse by another, unscrupulous relative.

Whatever the reason for an adult guardianship, be sure to limit your initial request for guardianship to include only the  necessary powers. This will assist the court in knowing that you are an appropriate person to appoint as a guardian because you are only asking for authority to help your adult relative in those areas where help is actually needed.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you have an incapacitated adult relative who is unable to provide for his or her own needs, you might be able to have a court appoint you as a guardian in New York. This is often necessary if an elder relative does not have an effective General Durable Power of Attorney. You will need to go to court to be appointed as a guardian of an adult relative, so consider the services of a New York attorney to assist you.

The process of getting guardianship over an adult relative begins by filing a petition with the court requesting that a guardian be appointed. The court then appoints someone to be act as an evaluator. The evaluator investigates the situation to make an independent report to the court whether a guardianship is necessary and whether the person requesting guardianship is an appropriate person to have it.

When the evaluator has compiled his or her report, the court will hold a hearing. At the hearing, the person requesting guardianship must prove by clear and convincing evidence that the guardianship is necessary and that he is an appropriate guardian. The evaluator will present his or her report to the court and other interested parties will have a chance to testify. After hearing the evidence, the court will reach a final decision granting or denying the guardianship request.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Many people fear that a spouse from a second marriage will not leave assets to the children of a previous marriage. If you leave all of your assets to your spouse in a simple will, this is a real concern. The second spouse is under no obligation to leave assets to your children from a previous marriage in his or her own will. Even if you and your spouse create joint wills that leave assets to all of your children, nothing prevents your spouse from changing his or her mind after you pass away.

With proper estate planning, however, you can avoid this problem and leave assets to your children from a previous marriage. In New York, an attorney can assess your situation and find the best option for you. For example, if your spouse lives in a home that you individually own and would eventually like to see pass to the children of your first marriage, you might want to give your spouse a life estate in the property and have it automatically pass to your children when your spouse passes away. In other situations, setting up a trust or leaving your children assets in your will might be better options. A qualified estate planning attorney can determine the best options for your family situation.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you have a child who is not good with money or owes a lot of money to creditors, you might have a a justifiable concern that any money you leave to them in a will or trust will be quickly blown or disappear into the bank accounts of the creditors. However, this should not stop you from leaving assets to your irresponsible child. An attorney can devise a trust for you that will protect your assets from your child and their creditors.

Like most states, New York provides for trusts that allow for a trustee to have sole discretion over how the assets of the trust are used for a beneficiary’s benefit. These are known as spendthrift trusts. If your child has no control over the money in the trust, their creditors cannot make a valid claim against the assets in the trust. The trustee only has to give your child enough of the trust assets to meet immediate needs.

Spendthrift trusts need to be specifically set up. If you are considering whether it is a good idea to leave money to an irresponsible or indebted child, speak with an experienced estate planning attorney to have a spendthrift trust drawn up to protect your assets after you pass away.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

In most situations, you can disinherit your heirs by simply leaving them out of your will. However, you generally cannot disinherit your spouse by will. According to most state’s probate laws, although you can disinherit any of your other relatives by written will, you cannot disinherit your spouse. Absent a valid prenuptial agreement created before you and your spouse married, you cannot use your will to disinherit your spouse.

Known as elective or forced shares statutes, surviving spouses have legal rights to minimum bequests. For example, your state most likely has a probate law allowing your surviving spouse to “elect” a minimum statutory share of her deceased spouse’s estate, instead of taking her testamentary bequest. This means that if you decided to leave your spouse a share of property below your state’s minimum elective statutory share, your spouse can reject the share under your will in favor of the minimum statutory share. In other words, your spouse most likely has a legal right to claim a third or other fraction of your estate.

Can you disinherit your other relatives, even though you may not be able to disinherit your spouse? Generally, you can in most states. This means that you can specifically omit your children as your legal heirs by stating such or not mentioning them. However, your state’s law may limit the disinheritance to existing children and not to children born after you created your will.  Its important to consult with a qualified estate planning attorney to make sure that your intentions are properly carried out.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.