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October 31, 2018 - Poor Estate Planning Can Be Scary!


If you’ve read our previous articles on the subject, Estate Planning With Your Elders: Bringing Taboo Topics to the Table Part I and Part II, and taken on the advice shared you’ll already have the following items in place, either for yourself or your family members:


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While we know these can be extremely difficult conversations to have with your family, they’re an essential part of life-planning. Knowing that their wishes will be able to be carried out in full will give you and everyone in the family peace of mind. Estate planning in its various forms can provide comfort and certainty at a stressful and emotional time in life.

With this article, I will focus on a few key questions to ask yourself while in the process of estate planning and provide some guidance based on my experiences working with clients over the years. I hope you find the insights shared useful. Estate planning doesn’t need to be scary, I hope I can allay some of your fears or uncertainties in this area.

1. Have you appointed Legal Guardians for your children in the event you and your spouse are in an accident?

Guardianship is a legal arrangement whereby your children are placed under the supervision of a guardian or guardians. A guardian is typically a trusted family member or close friend who you entrust to take care of your children if you are unable to. Having appointed legal guardians allows the guardians to make all daily decisions concerning the child. Having guardians of an estate empowers the guardian to make all decisions about the child’s property.

Legal guardians are able to be appointed in the Last Will and Testament, subject to Court approval. Standby guardians are also able to be appointed if for some reason the legal guardians are unable to fulfill their duties.


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2. Do you own a home? Have you thought about how to protect this asset from creditors?

As you are probably aware, creditors may be able to place a lien against your real property both while you are living and once you have departed this world. There are several vehicles we can employ to avoid this from having a detrimental effect on your property and/or estate. Irrevocable and Revocable trusts are a common vehicle used to protect the assets of your estate and are a structure I often advocate the use of to ensure asset protection. They also prevent the need to go through the process known as probate, which can often be costly, stressful and time-consuming. Once the trust is set up the assets are then transferred to the trust. This can have several advantages depending on your tax situation. I would advise speaking to a tax specialist in conjunction with your friendly Staten Island attorney who will both be able to explain the advantages and disadvantages of the various types of trusts, which may be of use to your situation.

The best time to start protecting your assets is before they need protection. Once litigation or creditors come after you, it’s often too late. This is one area of law in which you need to be proactive.


3. What kind of legacy do you want to leave for your family when you are no longer here?

Leaving a legacy behind is something we should all bear in mind. By taking the steps set out in this article you’re well on your way. Having an updated Will and asset protection plan go a long way to ensuring that your wishes are carried out.

If you wish to bequest funds or assets to a charity or institutions, there are several ways to go about it to ensure that the funds or assets are used as you would like them to be. One option is to set up a charitable trust so that the funds and/or assets can be utilized for years to come and a periodic distribution schedule can be arranged. Another option would be a lump sum bequest in your honor, for example.

The legacy we leave (and we all leave one) is not just the amount of money or assets we leave behind, but also our beliefs, wisdom, religious beliefs and shared experiences with those we love. As you reflect on your life and what you will leave behind, ask yourself the important questions: How comfortable are you with what you’re leaving behind for your loved ones? Do your loved ones know who and what is important to you? Do the guardians you have specified for your children know the values you hold and would like your children to be brought up with? If you are unsure about these questions, I suggest setting up a consultation to chat about it with your estate planning attorney.

Estate planning doesn’t need to be scary, but it will certainly be a confronting time for you. I have been assisting Staten Island families in developing estate plans for several years now, and I hope that this article encourages you to develop yours. Around 50% of people in the United States pass away without a Will, and if you take away anything from this article, please set aside some time to create an estate plan now! It will not only safeguard your assets and ensure the safety and comfort of your loved ones, but it will also help create and protect the legacy that you leave behind.


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This information, based on New York law, was provided courtesy of The Law Office of Christopher J. Arrigali, P.C.  It is intended to inform, not to advise.  No one should try to interpret or apply any law without the assistance of legal counsel.



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