Wills, Trusts and Estates

Preparation of Will * Probate and Administration Proceedings * Living Wills * Health Care Proxies * Powers of Attorney * Will Contests

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

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 document voluntarily.

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 incapacitated.

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