ESTATE PLANNING AND ADVANCE PLANNING DIRECTIVES

Last Will and Testament

Why do I need a Will?

• A Last Will and Testament will ensure that your assets, after your death, pass to your intended beneficiaries. Alternatively, if you wish to, you may use a Will to disinherit certain beneficiaries. Executing a Will also allows you to nominate an executor to manage the affairs of your estate. If you die without a Will, a court appointed administrator would oversee the distribution of your assets.

• Parents of minor children may use a Will to nominate a guardian for their children.

• Special types of Wills are quite useful for parents of a disabled child. If drafted correctly, the parents can provide for a disabled child’s needs without affecting the any government benefits that the child may be receiving.

• Your Will should be reviewed by an attorney every few years to keep it current with changes in tax laws and the laws of the State of New York.

What is Probate?

• Probate is the process of proving the validity of a Will in the Surrogate’s Court of the county in which the deceased individual resided at the time of death. Contrary to popular belief, probate is not always expensive and may be advisable for certain individuals.

What if I die without a Will?

• If you die without a Will, your assets will pass under the intestacy laws — essentially family members of varying degrees will receive your assets. Relying on the intestacy statutes can lead to unintended consequences.

Power of Attorney

What is a Power of Attorney?

• A Power of Attorney is a legal document that allows someone else to act on your behalf with regard to financial and personal matters. This document is especially important in situations where you might be incapacitated or away from home for an extended period of time. Properly drafted, a Power of Attorney allows another to act on your behalf — to essentially step into your shoes and act as you would regarding financial and personal matters.

• A Power of Attorney can be revoked at any time.

• If someone becomes incapacitated without having executed a Power of Attorney, a court guardian may have to be appointed to handle that person’s affairs.

Who should have a Power of Attorney?

• Everyone should have a Power of Attorney. Without it, the family of an incapacitated person will likely face a costly guardianship proceeding. Spouses often mistakenly believe that they will have the authority to act for the other — this is not the case.

Are there different types of Powers of Attorney?

• There are several types of Powers of Attorney, among them are: Durable Power of Attorney, Non-Durable Power of Attorney, Springing Power of Attorney and Limited Power of Attorney.

• A Durable Power of Attorney will survive the incapacity of an individual.

• A “Springing” Power of Attorney is effective only after the person executing the document becomes incapacitated.

• A “Limited” Power of Attorney gives authority as to specific matters, i.e., authorizing someone to go to a real estate closing when you’re out of town.

Health Care Proxy

What is a Health Care Proxy?

• A Health Care Proxy allows you to appoint an agent to make health care decisions on your behalf in the event that you are unable to do so.

• Generally, a Health Care Proxy empowers another person to make any and all health care decisions on your behalf, including decisions relating to medication, therapy and physicians.

• You should discuss your wishes regarding artificial nutrition and hydration with the person you appoint in a Health Care Proxy, otherwise, he or she will not have the authority to make decisions about artificial nutrition and hydration.

Living Will

What is a Living Will?

• A Living Will, not to be confused with a Last Will and Testament, is an advance health care directive that expresses the health care wishes of an individual. A Living Will is typically utilized when there is a medical diagnosis of a persistent vegetative state with no hope of recovery.

Dena Orenstein and Zhanna S. Kandel are partners of the law firm of Orenstein & Kandel, LLP. with offices located on Northern Boulevard in Bayside. The firm specializes in real estate, foreclosure, bankruptcy and eviction matters, as well as business contracts and wills, trusts and estate planning. Tel. (718) 819-0200 www.oandklegal.com.