Articles Posted in Asset Protection

Needing access to a deceased family member’s safe deposit box is a common issue many families face as they prepare to pass a last will and testament through probate in New York Surrogate’s Court. While many assume they can simply bring their loved one’s death certificate and box key to the bank and explain the situation to the bank manager, the truth is that most bank officials will turn down these requests without proper paperwork from the Surrogate Court.

When faced with the impasse, many individuals look at the situation as a catch 22. On the one hand, access to the safe deposit box is needed to probate the will and on the other hand, the safe deposit box cannot be accessed until the estate is probated. Fortunately, New York’s estates and trust laws are prepared for such scenarios and offer a somewhat streamlined process for gaining access to a safe deposit box where a will and other important documents may be stored.

New York Surrogate’s Court Procedure Act, Section 2003 gives interested parties, those with claims to an estate, the right to request access to the deceased’s safe deposit box for the purpose of uncovering the last will and testament. To gain an “Order to Open Safe Deposit Box,” the interested party will need to file the necessary paperwork with a copy of the death certificate and applicable fee.

In New York, if someone passes away without a surviving close family member to inherit the estate, it becomes what is known as a kinship case. While most of us take the time to plan our estate by creating a last living will and testament or a trust to leave our assets to family members and close friends, not everyone is blessed to leave behind a loving family or close associates to pass on an estate.

Chapter 17(B) of the N.Y.S. Consolidated Laws codifies who is entitled to receive the deceased’s estate if he or she passes away without leaving a will. Typically, the surviving spouse is entitled to all of the deceased’s estate if the couple leaves behind no surviving children or grandchildren. If there are children, the surviving spouse receives the first $50,000 of the estate and then half or the remainder which will be split with the surviving children.

When children lose both their parents, the estate will be divided equally between the surviving children. But what if the deceased leave no wife or children? How far will courts and interested parties need to go to figure out who gets what? The answer depends on a variety of factors, including who the deceased leaves behind and whether any interested parties have passed away.

Starting a family is one of the most exciting times in our lives. With marriage and children comes responsibility to plan for our futures and ensure our loved ones are taken care of in the event of tragedy. While many young families may feel as though they can put off planning their estate, the truth is that it is never too early to start or too late to revise.

One of the first things new families will need to consider is appointing guardianship for children in the event both parents pass away. Although it is difficult to think about, children need to be entrusted to a reliable person to raise them to adulthood. The difficulty often lies in both parents coming to agreement on who should raise the children in a scenario like this.

Another important step is naming an executor to your estate to ensure your children receive all that is due to them should both you and your spouse pass away. Choosing who will manage your estate can have a tremendous impact on the situation and should be someone trustworthy and willing to go the distance until the children are grown and able to take responsibility.

More and more often, families include less traditional definitions than they once did. Remarriages are more common, and cohabitation in lieu of marriage is also more common. In other words, blended families are increasingly common in our society today. If you are considering remarriage or have already remarried, it is extremely important to think about estate planning for your new marriage and how to either approach it from the beginning or revisit an estate plan that may already be in place. The following tips could prove useful for blended families exploring the estate planning process and may help you figure out where to begin your estate planning discussion with an experienced estate planning attorney.

Consider a Prenuptial or Postnuptial Agreement

A prenuptial agreement is an agreement that you enter into with your perspective spouse before the two of you get married. It sets out terms that dictate the property and financial rights of the spouses in case of divorce. They can also be used to set forth terms of asset distribution and other important aspects of estate planning. By specifying these terms, you can help your loved ones avoid conflict between members of your blended family while ensuring that your wishes for your assets are carried out. A postnuptial agreement can accomplish many of the same goals but is entered into after you have already gotten married.

Comprehensive financial planning is an intricate, multistep process that often goes hand-in-hand with comprehensive estate planning. There are many different financial planning options available to you when you begin thinking about planning for your retirement, and it is never too early to start looking into them. One of the most commons options people choose in planning for retirement is the establishment of a retirement account like an IRA or 401(k) plan. A recent article from The Motley Fool discusses three common missteps people make when approaching their retirement account withdrawals.

Waiting Too Long

The United States Internal Revenue Service requires minimum distributions from retirement accounts after age seventy and a half. However, that does not mean you need to wait until then to start taking these distributions. In fact, doing so could actually cause you unintended financial harm. By the time a person is seventy and a half, they have likely amassed a good deal of savings in these retirement accounts.

A last will and testament is a very important document detailing the final wishes of a deceased person and New York probate courts give great deference to the language contained in a deceased individual’s decrees. One of the limited ways interested parties to an estate can challenge the directives contained in a last will and testament is to claim the deceased was not of sound mind and body at the time the document was executed, due to the undue influence of an individual attempting to take advantage of the situation and enrich himself or herself.

New York’s Surrogate Courts have very limited instances in which someone can contest the deceased’s wishes to disperse his or her property to the beneficiaries of the estate and asserting undue influence is often one of the most difficult to prove. The petitioner must prove to the court the testator somehow could not escape the influence of someone with a close, personal relationship to the deceased.

Additionally, the individual petitioning the court to invalidate the will must be an interested party, meaning he or she must have a legal claim to the deceased’s estate as a relative, usually a spouse or child. Under New York inheritance laws, spouses and children are typically granted a certain share or proportion of the estate and are therefore given standing to interject as an interested party.

There are two main types of trusts: revocable and irrevocable. Basically, each trust is self-explanatory on the surface. For the most part, you have unfettered ability to revoke or amend a revocable trust. In contrast, it is extremely difficult and sometimes impossible to revoke or even amend an irrevocable trust. On the surface, it appears – and is true – that a revocable trust provides the creator of such trust with greater flexibility in modifying that trust to meet their comprehensive estate planning goals. However, irrevocable trusts still play an important role in estate planning and it is important to understand their benefits to make an informed choice about the type of trust that might be right for you.

Avoiding Probate

While most trusts will avoid probate, irrevocable trusts established during your lifetime will definitely be able to avoid probate. This will ultimately save you and your loved ones time and money by allowing a trust to take effect immediately as it has been designed to do. Your loved ones will be able to access an irrevocable trust according to its structure without having to wait for the courts to approve a Will or other documents related to probate of the deceased person’s estate.

In the second part of our two-part series on recognizing fraudulent Wills, we will continue to explore various characteristics of a Last Will and Testament that might indicate it is fraudulent. While some of the factors in the first part of this series might be a little more obvious, the information below may help you understand some less common but still observable aspects of a Will that could indicate it has been tampered with.

Wills Disproportionately Benefitting Religious Organizations or Charities

Especially in cases where a deceased person was not active in a religious organization or was only minimally active, this type of provision in a Will could indicate that something is amiss. Sadly, many elderly people can be easily influenced by unscrupulous individuals that want to use assets for their own benefit or to benefit something they find to be particularly important. Sometimes this comes at the hand of the religious organization itself, and sometimes it comes as a result of the influence of an individual with close ties to the religious organization in question. This is also true for large distributions to charities a deceased person would not normally have given money to or did not have a record of supporting during his or her lifetime.

Unfortunately, there are many unscrupulous people in the world that will go to great lengths to take advantage of certain situations. This is true when it comes to a person’s Last Will and Testament. While you might never contemplate changing a person’s Will to suit your needs, that does not mean other individuals will not try. Unfortunately, this can sometimes include members of your own family. While there are a variety of steps an individual can take to cover their tracks if they have interfered in the Will of a deceased person, there are some common warning signs that might help you detect if a Will has been forged or not. The following information may provide you with some insight in what to look for.

Wills Not Signed in Presence of a Lawyer

If a Will was not signed in the presence of an experienced estate planning attorney, there is a good chance the Will could be fake. In fact, if the Will was not signed in the presence of the deceased person’s estate planning or family attorney but was signed in front of a different attorney with little or no relationship to the deceased, there could be foul play involved. Estate planning is often an intimate, complicated process. It is important for individuals to be comfortable with their estate planning attorney, and utilizing outside legal services – especially legal services that have a relationship with potential beneficiaries – could mean a Will is not proper.

In the second part of our series on the topic of things you need to do when a loved one dies, we will explore some of the things that should be addressed within roughly six months of the death of a loved one. Again, these lists are not exhaustive. However, they can help you start to think about the various issues that need to be addressed.

Notify Social Security

Within one month after the death of a loved one, the United States Social Security Administration needs to be informed of their death. They will have to put various processes in motion that stop social security and other benefit payments from continuing. Failure to do so could result in identity theft, or even if liability for repayment of such benefits. Depending on your relationship with the deceased and their benefits, you could also be eligible for survivor benefits that can have a significant positive impact on your everyday life.

Contact Information