Where there's a will, There's a Lawyer

We are all in similar positions. I’m sure that you’ve asked yourself, “Have I done everything possible to leave my heirs in as comfortable condition as I possible can, and to ensure that I’m as comfortable as possible for the remaineder of my life?”

You should have a few documents prepared to clarify your intentions, and maybe to protect your assets. Keep in mind that I am licensed in New York State, only. What I’m about to advise may differ in other states. Certainly it varies from country to country. This is purely from a “New York State of Mind.” Wherever you are located you should see a qualified Lawyer and ask about the following documents.

1) Health Care Proxy and or Living Will. New York has a statute that gives official state recognition to the health care proxy. This document names an agent for health care issues only. Before choosing an agent, you should make it clear to that agent, exactly what your intentions are regarding end of life decisions. You should further make sure that this agent is capable of following your instructions.

This is a simple document to prepare and administer. Without it, you have no guarantee that your wishes will be followed. Or you will not become a Political Volleyball.

2) Durable Power of Attorney. This document gives your agent the power to see
over your assets, if you are incapable of doing so. The word durable means that it survives incompetency. This could mean the difference between using your money to take care of yourself, or paying an Attorney to have the courts name a conservator over your assets. .

3) Will and or Trust. Whereas the Power of Attorney directs your assets while alive, the will controls them upon your death. Without a will the state will determine through their intestacy laws, who is entitled to your assets.

Many advisers recommend a trust in addition to a will. I don’t believe that it is a panacea for all issues. When do I recommend a trust? (I’m speaking solely about revocable trust. Irrevocable trusts are sometimes an effective estate planning tool for Medicaid planning, but I’ll leave that for another time.)

A) You’re not sure who your heirs are. How is that possible? I once probated the will of a man, who was raised in an orphanage, his wife had predeceased him and he had no children. He left everything to his wife’s nieces and nephews. In NY State, and I’m sure in many other states, the people adversely affected by a will, the closest blood relatives, must be noticed. We had to hire a genealogist to go back to the turn of the 20th Century, to find out who these people were. It cost over five figures.

B) You don’t want to leave anything to a child. This unfortunately happens. Since that child has to be given notice of a probate, it’s not inconceivable that he or she may fight the will. A trust, which isn’t probated, avoids this issue.

C) You’re rich and famous and you want privacy. Once a will has gone to probate anybody can see it.

D) It’s necessary that your heirs get immediate access to your assets. A probate can take some time, but is not as bad as people believe.

Keep in mind that a trust takes two steps, 1) Execution and 2) Funding. Unless you change the title of your assets to the trustee as trustee, the trust is no more valuable than an empty box.


This is a basic outline. You should see a qualified elder law attorney. Don’t go to just any lawyer. Go to a Lawyer experienced with estate planning. Remember a little knowledge can be dangerous. If you don’t know an elder law attorney contact The National Academy of Elder Law Attorneys (NAELA). They’ll be happy to steer you in the right direction.