A Long Island Estate Planning Attorney Answers the Most Frequently Asked Questions

Serving Families Throughout Melville

Estate planning is a complex and personal process. From wills to trusts and other estate planning documents, ensuring that the care of your assets after you pass away honors your wishes is vital. If you’re considering an estate plan, research your options and consult an experienced and knowledgeable Long Island estate planning attorney for the best results.

What is an estate plan, and why do you need a NY estate planning attorney? 

In this blog, the attorneys at the boutique estate planning firm Schneider, Garrastegui & Fedele answer the most frequently asked questions we receive from clients based on decades of experience. Continue reading to learn more, then contact us at (631) 519-9831 to schedule a consultation to discuss your unique estate planning goals. Our boutique firm combines a personalized approach with large firm benefits. 

Frequently Asked Questions 

1.What is estate planning? 

Estate planning is organizing and managing your assets, wealth, and estate to ensure its distribution according to your wishes after you pass away. It involves outlining how you will manage your assets during your lifetime and how you want them to be distributed upon your death.

We cannot overstate the importance of estate planning because it puts you in control instead of letting intestacy laws decide how to distribute your assets. Estate planning can help protect your family from potential legal issues or disputes arising after your death and ensure the full and timely payment of any taxes your estate owes.  

New York residents can expect an estate tax rate ranging from 3.06% to 16% on estates valued at over $6.58 million in 2023 (note that this threshold increases each year to account for inflation). Furthermore, if your estate’s value is $12.92 million or more in 2023, you will also pay federal taxes. For these reasons, estate planning is vital, even if your estate currently falls below the taxable threshold, considering that your wealth can increase over time.  

Creating an estate plan involves the following: 

  • Will 
  • Trusts
  • Medicaid Planning
  • Medicaid Applications
  • Powers of Attorney (POA)
  • Healthcare Directives
  • Guardianships
  • Asset Protection
  • Special Needs Planning
  • Business Succession Planning
  • Probate 
  • Estate Administration

The process begins with an initial consultation with an experienced New York estate planning lawyer who can guide you and create tailored documents to meet your needs. During this consultation, discuss any exceptional circumstances or considerations possibly affecting the management and distribution of assets.

2.Who Needs Estate Planning?

Many people mistakenly believe estate planning is only for the wealthy or elderly, but this could not be further from the truth. An estate plan is essential for everyone, regardless of age or wealth.

Your family and loved ones can face serious consequences without an estate plan. Without a will, state laws will determine the distribution of your assets after you pass away (intestacy), which may not align with what you would have wanted. Without a trust, your heirs may undergo time-consuming and costly probate.

3. What Documents Are Included in Estate Planning? 

As mentioned above, the critical estate planning documents include wills, trusts, powers of attorney, healthcare directives, asset protection, special needs planning, and business succession planning.

4. What is a Will?

A will is a legal document that allows you to designate how you want an executor to distribute your assets after your death. If you have minor children, you can designate guardians and appoint an executor to handle your estate’s distribution. Your executor manages the estate until it pays all debts and oversees the distributions of assets according to the will’s terms. Without a valid will, state laws determine the distribution of an individual’s assets upon death.

For the law to consider a will valid, it must meet specific requirements, including being signed by two witnesses (in New York State) and executed per state laws. Any changes or updates to the will must also comply with state laws. An experienced Long Island NY estate planning attorney can ensure your will abides by all necessary legal requirements. 

5. What is a Trust?

A trust is a legal arrangement in which one or more people (trustees) manage property on behalf of another person (beneficiary). People create trusts with the help of a NY estate planning lawyer to help control and protect assets such as real estate, investments, and other financial accounts.

Several kinds of trusts have different purposes. Common trusts include: 

  • Revocable living trusts
  • Irrevocable trusts
  • Special needs trusts
  • Charitable trusts
  • Spendthrift trusts
  • Testamentary trusts

While each has its unique benefits and drawbacks, the primary benefit of a trust is that it enables you to control your asset management after you pass away or become incapacitated. It avoids probate court proceedings by transferring ownership of the assets directly to the beneficiaries after your death without going through the court system. It can help reduce taxes on specific assets and provide asset protection from creditors.

When deciding whether to create a trust, consider your current financial situation and future goals. If you have significant assets you want to protect from creditors or ensure the distribution of your assets according to your wishes after death, a trust could be an excellent option. An experienced NY estate planning attorney can guide you through setting up a trust to meet your needs and provide maximum protection for your beneficiaries.

6. What is Medicaid Planning? 

As you age, long-term healthcare expenses can quickly deplete your retirement savings and impact your ability to leave a considerable legacy for those you love. Fortunately, incorporating Medicaid planning into your estate plan can help safeguard your future and family from these threats.

In New York, nursing home services can exceed $100,000 annually, making them unaffordable for most aging individuals without financial assistance. However, Medicaid, a government-run program that provides health coverage for millions of Americans, can help cover long-term care expenses when integrated into a comprehensive estate plan.

Medicaid planning involves strategically transferring assets out of your estate to ensure qualification for the program while establishing a substantial legacy for your loved ones. Although removing assets from your estate may appear counterintuitive, failing to do so could render you ineligible for Medicaid and leave your assets vulnerable to high long-term care expenses in the future.

Initiating a Medicaid plan can be complicated, requiring careful planning and strategic transfers well before eventual qualification. Therefore, it is essential to start early and partner with an experienced New York Medicaid attorney to navigate the process successfully.

7. What is a Medicaid Application?

Completing a Medicaid application can be daunting, akin to piecing together a puzzle with constantly changing pieces. Even a minor mistake can lead to a denial, requiring you to restart the entire process. To avoid such setbacks, consult with an experienced Medicaid application attorney in Melville, NY, that remains up-to-date with the latest changes to the laws. A boutique estate planning firm can help you qualify for and apply for the program. With their help, you can 

  • Engage in Medicaid planning
  • Protect your spouse
  • Apply for the program
  • Appeal a denial if necessary

8. What is a Power of Attorney? 

Powers of attorney allow individuals to appoint someone else (an “agent”) to make financial  decisions for you. There are two types of powers of attorney: general power of attorney (which grants broad authority) and limited power of attorney (which grants more limited authority). A general POA gives broad authority to the agent to act on the principal’s behalf. A limited POA grants specific authority for a particular purpose, such as selling real estate or signing documents.

We cannot overstate the importance of a power of attorney. Without one, family members may have difficulty accessing bank accounts or making medical decisions for an incapacitated loved one. A POA can avoid costly court proceedings if family members disagree about how to handle particular matters.

9. What is a Healthcare Directive? 

A healthcare directive is a legal document that allows you to make decisions about your medical care ahead of time in case you cannot communicate your wishes due to illness or injury. A healthcare directive is vital because it ensures the fulfillment of your desires if you become incapacitated and cannot make decisions for yourself.

A healthcare directive usually includes two parts: a living will and a healthcare proxy.. The living will states you do not want to be kept alive by any heroic measures. The health care proxy designates someone else, such as a family member or close friend, to make medical decisions on your behalf if you cannot.

Tailor your healthcare directive for your needs and wishes. Discuss your preferences with family members and other trusted individuals before creating the document so that they can provide input and support during the process. Finally, consult an experienced estate planning attorney who can advise you about the best options for your unique situation and ensure the correct preparation of legally binding documents. An experienced NY estate planning attorney can also help identify potential issues before they arise so you can address them proactively rather than reactively.

10. What is Guardianship?

Guardianship is a legal arrangement in which a responsible party, known as the guardian, is appointed by the court to manage the personal and/or financial affairs of another person, called the ward. This arrangement is necessary when the ward cannot make decisions due to age, disability, or cognitive decline. Guardianships are essential to protect the interests of vulnerable individuals and ensure their well-being.

New York recognizes several types of guardianships, including:

  1. Legal Guardianship: This is the most common form of guardianship, in which the guardian is responsible for making decisions on behalf of the ward, such as healthcare, financial, and educational decisions.
  2. Standby Guardianship: In this arrangement, a standby guardian is appointed in advance to act on behalf of the ward if the current guardian becomes unable or unwilling to fulfill their duties.

You can establish Guardianship for various individuals, including minors, adults with special needs, and seniors experiencing cognitive decline.

Obtaining guardianship in New York involves several steps:

  1. Filing a petition with the appropriate court typically provides information about the proposed guardian, the ward, and why guardianship is necessary.
  2. Notifying all interested parties, such as the ward's family members, of the petition.
  3. Participating in a court hearing, where the judge will review the petition and any supporting evidence, listen to relevant parties' testimonies, and determine whether guardianship is in the ward's best interest.
  4. If the guardianship is granted, the guardian must complete any required training and submit periodic reports to the court to demonstrate their compliance with the guardianship order.

The court supervises the guardianship process to ensure the protection of the ward’s rights and the preservation of their best interests. To petition for guardianship, you must file a petition in the appropriate court, which varies depending on the circumstances of the case. The Surrogate’s Court or Supreme Court addresses guardianship for adults with special needs or seniors with cognitive decline.

A temporary guardianship is a short-term arrangement, often granted in emergency situations when the ward requires immediate protection. On the other hand, permanent guardianship is a long-term arrangement that remains in place until the ward's circumstances change, such as regaining capacity or reaching adulthood.

A legal guardian has numerous rights and responsibilities, including the authority to make decisions concerning the ward's health, education, and financial matters. The guardian must always act in the ward's best interest and may be required to obtain court approval for specific actions.

11. What is Asset Protection? 

Protecting your assets as you age is crucial to enjoying your Golden Years and leaving a lasting legacy for your loved ones. With significant assets, however, you may feel like you have a target on your back, vulnerable to lawsuits and excessive taxes. Working with an experienced asset protection lawyer in Melville, NY, can safeguard your wealth and secure your legacy for generations. 

A boutique estate planning firm can help you shield your assets from creditors and lawsuits, and reduce  taxes, allowing you to accumulate wealth without concern over losing vulnerable assets. An asset protection lawyer can show you how to protect yourself from:

  • Estate taxes
  • Business lawsuits
  • Creditor judgments
  • Personal liability

12. What is Special Needs Planning?

If you have a loved one with special needs, it's natural to want to safeguard and provide for them. However, this goes beyond just their personal care. You also need to ensure that they have financial resources available for everyday living expenses and any additional costs that may arise. 

Special needs planning lawyers in Melville, NY, can help you get started, working with you to explore different government programs available and set up a supplemental trust or ABLE account if required. With the help of a Long Island estate planning attorney, you can develop an airtight strategy to protect your loved one now and in the future. 

13. What is Business Succession Planning?

As a successful business owner, worrying about what will happen to your hard-earned empire once you retire or become incapacitated is natural. Without a succession plan, your company's future could be in jeopardy, and all those years of effort would go to waste.

Effective business succession planning includes several components:

  • Choosing and planning an exit strategy
  • Selecting a successor
  • Training a successor
  • Protecting current employees
  • Limiting your tax exposure

By creating a solid business succession plan, you can ensure the long-term success of your business. Whether you plan to retire soon or work well into your Golden Years, a business succession gives you peace of mind and confidence to enjoy your well-earned time off. 

14. What is Probate?

Probate is a legal process that takes place after someone dies. It includes proving the validity of a deceased person's will in court, then distributing their assets and property to their heirs and beneficiaries, according to its terms. Because the probate process can be complex and time-consuming, understanding what it entails before going through it is helpful.

Probate begins when the court appoints an executor or administrator of the estate. This individual will be responsible for gathering all of the deceased person’s assets, paying any outstanding debts, filing taxes, and distributing the remaining assets according to the instructions in the will. The executor must notify creditors and other interested parties about the decedent's death.

The probate court will review all documents related to the estate, including any wills or trusts the deceased person created. If there are any disputes over asset distribution or any questions about the validity of a will, these issues must be resolved before probate can be completed. Once all matters have been settled, the court will issue an order confirming that all requirements have been met and authorizing the distribution of assets according to the terms of the will or trust agreement.

Avoiding probate can save your family time and money during an emotional time. An up-to-date estate plan with clear instructions on distributing your assets can fulfill your wishes without a lengthy court process. An experienced Long Island estate planning attorney can help you create an effective plan for passing on your legacy while minimizing costs associated with probate proceedings.

15. What is Estate Administration?

Estate administration can be daunting, especially when the deceased did not leave behind a will. In such cases, acquiring Letters of Administration is necessary before proceeding with the administration process. Furthermore, distributing the decedent's possessions requires compliance with the state's inheritance laws, which may entail legal obstacles. Given the many responsibilities and potential pitfalls, you may feel overwhelmed and apprehensive about making mistakes.

Administering an estate in New York requires numerous steps. An estate administration lawyer can assist with:

  • Obtaining Letters of Administration
  • Sending the requisite notifications
  • Gathering and inventorying assets
  • Paying debts according to NYS law
  • Handing legal challenges
  • Distributing assets

Rather than attempting to navigate the intricacies of estate administration by yourself, consider consulting a Melville, NY, estate administration attorney. An experienced lawyer can guide you through every phase of the process and assist with specific tasks as necessary. 

Schneider, Garrastegui & Fedele, PLLC: A Boutique Estate Planning Firm in Melville, NY, That Offers Large Firm Benefits

At Schneider, Garrastegui & Fedele, PLLC, our estate planning attorneys bring decades of knowledge and experience to every client we serve. Do you need help creating a legally valid estate plan that honors your wishes and protects your loved ones? Contact us at (631) 519-9831 or complete our online form to schedule a consultation. 

Copyright © 2023. SCHNEIDER, GARRASTEGUI & FEDELE PLLC. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

135 Pinelawn Rd #250s
Melville, NY 11747
(631) 519-9831

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