Wills, Trusts and Estates
Preparation of Will
A "will" is generally defined as a written declaration by which
a person makes a disposition of his or her property to take effect after
his or her death, and which by its own nature is ambulatory and revocable
during the person's lifetime.
Wills are governed by the New York Estates Powers and Trusts Law (EPTL),
and in order to be considered valid and enforceable, the following requirements
must be met: (1) the will must be executed by an individual who is 18
years of age or older and is of sound mind and memory, and; (2) generally,
a will must be in writing and signed at the end by the testator in the
presence of at least two witnesses, to whom the testator has declared
that the document being signed is his or her will and whom the testator
has requested to act as witnesses to the execution of it.
While the law does not require that the witnesses to a will have any formal
qualifications in order to act as witnesses, it is advisable that each
witness be over 18 years of age, able to reach and write English and possess
sufficient understanding to know the nature of being called upon to witness
the will of the testator. It is important to note, however, that potential
beneficiaries under the will should not be witnesses since this creates
a conflict of interest and may void any bequests made by the testator
to the witness/beneficiary.
Although wills can be prepared and executed without the assistance of an
attorney, it is not advisable since the statutory requirements for the
execution of a will are strictly construed by the courts, and any failure
to comply with all of the requirements may prove fatal to the validity
of the will.
Accordingly, you may wish to consult with an attorney when considering
a will. The attorneys and support staff at Rayano & Garabedian, P.C.
have prepared and executed hundreds of wills, and we are readily available
to meet with you to discuss your particular concerns, needs and desires.
Probate and Administration Proceedings
Estate probate is the procedure by which a will is proved to be valid or
invalid, though in its current usage the term has been expanded to include
the process in which a deceased person's assets, properties, rights
and responsibilities are disposed of in accordance with the terms of said
deceased person's will. Simply put, probate generally refers to all
matters and proceedings which relate to the estate of a person who dies
with a will ( i.e. , testate).
"Administration" of an estate generally refers to all matters
and proceedings which relate to the estate of a person who dies without
a will ( i.e. , intestate).
Regardless of whether a person dies with a will or without a will, the
Surrogate's Court of the county where the deceased person was domiciled
at the time of his or her death shall have jurisdiction over all probate
and/or administration proceedings.
In the case of someone dying with a will, probate proceedings are instituted
in Surrogate's Court to facilitate the appointment of an executor,
normally a person specifically designated in the will, to help effectuate
the will. Some of the duties and responsibilities the executor is charged
with handling include but are not limited to: (1) gathering together and
preserving assets of the deceased person; (2) submitting to the Surrogate's
Court an inventory of all assets and liabilities of the decedent; (3)
preparing and filing any necessary tax returns; (4) assisting in the prosecution
or defense of any civil causes of action involving the decedent, and;
(5) distributing estate assets in accordance with the terms of the will.
Similarly, where a person dies without a will, the Surrogate's Court
will appoint an administrator who will act in the same capacity as an
executor and have virtually all of the same duties and responsibilities
of an executor, with the one notable exception being that an administrator
will assist the court in deciding how to dispose of the decedent's
assets and property in accordance with the rules of intestate succession
as set forth in EPTL section 4-1.1.
Although probate and administration petitions can be obtained and prepared
without the assistance of an attorney, it can be a complicated and sometimes
frustrating process. Accordingly, you may wish to consult with an attorney
prior to attempting any such task.
As previously mentioned, the attorneys and support staff at Rayano &
Garabedian, P.C. have extensive experience probating wills and administering
estates. Our knowledge of the Surrogate's Court procedures and forms,
as well as the pertinent statutory and case law, will necessarily facilitate
and make less daunting the difficult tasks facing family members and other
loved ones of a deceased whose legal and financial affairs must be addressed
and, sometimes, put in order.
Living wills are the written expression by individual that he or she should
not be kept alive by extraordinary means in certain extreme circumstances.
Although New York does not statutorily recognize or provide for living
wills per se , New York Public Health Law section 2965 does authorize
an individual to make a do-not-resuscitate directive. In effect, this
directive designates a person to act on his or her behalf to make the
decision that resuscitation should not be attempted if, in the opinion
of the individual's doctor and one other doctor, the individual is
terminally ill or permanently unconscious or resuscitation would not be
medically futile or impose an extraordinary burden on the patient in light
of the patient's condition and the expected outcome of the resuscitation.
As for living wills, they generally do not have to be executed with the
same formality as a last will and testament, but this does not mean they
shouldn't be. In fact, living wills are often executed at the same
time as a last will and testament, using the very same witnesses and procedures
to ensure that the living will is consistent with an individual's
stated intentions and desires should he or she not be in a position to
make the ultimate decision.
Health Care Proxies
A health care proxy enables an individual to designate an agent to make
health care decisions for the individual when the individual cannot make
such decisions for himself or herself. Pursuant to New York Public Health
Law sections 2980 through 2994, any competent adult who is 18 years or
older is authorized to appoint an agent. However, in order to be effective,
a health care proxy must be executed and dated by the principal in the
presence of two adult witnesses, neither of whom is the agent who is designated
in the instrument, and who must state that the principal executed the
Powers of Attorney
A power of attorney is a document by which one individual ( i.e. , the
principal) appoints another person as his or her agent. The principal
can confer specific or broad powers upon the agent, and the extent of
said powers are set forth in a form which is dictated by New York General
Obligations Law section 5-1501.
Generally, there are two types of powers of attorney, a common power of
attorney and a springing power of attorney. A common power of attorney
enables an agent to act on the principal's behalf for specific or
wide ranging activities and legal affairs such as signing legal documents,
banking and a host of other personal or business activities.
With a springing power of attorney, an agent is designated to act on the
principal's behalf at a specified future time or contingency. For
example, a springing power of attorney may be used when one person cannot
be present to sign a contract or act on his own behalf at a legal proceeding.
A springing power of attorney can also be used to cover situations where
a principal may become incapacitated and unable to attend to his or her
own legal affairs. Typically, springing powers of attorney are revoked
after a contingency has been met.
A durable power of attorney is one which survives the occurrence of a contingency
or event and enables the agent to act even where the principal is no longer