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Living Will vs. Healthcare Power of Attorney: Which Should You Choose?

ByJessica Caporo January 29, 2025January 21, 2025

End-of-life planning is a sensitive yet crucial part of comprehensive estate planning. Two common documents that help ensure your medical…

Read More Living Will vs. Healthcare Power of Attorney: Which Should You Choose?Continue

important things you should know

Questions And Answers

What is the definition of estate planning?

It is a widespread misconception that not everyone has an Estate. Every individual will have an Estate that will be determined at their date of death and will be comprised of all property they own. For example, this will include belongings such as a bank account(s), a car, some piece of jewelry, real property, and any other tangible or intangible property.

Estate planning purports to plan, arrange and organize one’s distribution of property (also called “assets”) at their date of death or upon an event. In other words, Estate planning consists of deciding in advance and determining what part of your property you will give and to whom. Obviously, Estate planning must be thought as a whole in order for the client to get the best of his property while legally reducing the amount of taxes, legal fees and court fees.

Purpose of Estate Planning?

Estate planning allows an individual to determine who will benefit from their estate, who will obtain a specific portion of their assets, and to what extent. It purports to plan, arrange and organize one’s distribution of their property while strategically ensuring that the estate will not suffer from taxes or other claims which may burden the estate upon one’s date of death.

In addition to preventing disputes and burdening taxes, Estate Planning’s primary purpose is to encourage individuals to foresee in advance and resolve the potential risks or events that will undeniably occur. For example, death or illness. 

Is estate planning the same as a will?

Estate planning and Will planning are very different methods to get the best out of your assets in the future, although they are complementary and work together. Drafting a Will is an estate planning process, while Estate Planning can be achieved by drafting a will and using other tools such as a Power of Attorney, a Trust, and a Healthcare Proxy. Estate planning and Will planning each purport to set clear instructions to the court or your fiduciary regarding how your assets are. Will be distributed upon your death, but estate planning can go even further by resolving questions to come in the future regarding your health, finances, incapacity, and your living conditions. 

Which is better a will or a trust?

It depends on your needs, objectives, and goals. Both a Will and a Trust Agreement are estate planning tools, but they serve different purposes. If they can work together or refer to one another in a logic of general estate planning, a Will and a Trust agreement remain very separate documents with significant differences.

The most apparent difference between a Trust and a Will is that a trust is effective upon its duly execution, as the grantor is alive. At the same time, the last will has effect only upon a testator’s death and proper probate proceeding.

Who gets assets if no will?

If an individual dies without a Will, their property has to be distributed and passed as per the state’s laws of intestacy where the decedent was permanently residing before his death. For example, in New York State, if a decedent who died without a Will had a spouse and children, the spouse will be entitled to a portion of the decedent’s estate. Under such circumstances, the spouse will receive $50,000 in assets and half of the estate, while the decedent’s children will get the other half to be divided among them. If the decedent had a spouse but no children, the spouse will be entitled to the entirety of the estate.

If the decedent had no living children or spouse, his estate will pass to his grandchildren. Absent grandchildren, the decedent’s estate will be distributed to his parents. If the decedent’s parents are not alive, the decedent’s property will pass to the decedent’s siblings or their children…etc.

What is probate?

Often, our clients are confused about the probate proceedings, their purpose, and why it is always required when a person dies having a last will. Probate refers to the legal proceeding commenced after a person who had a Will passed. The purpose of the probate proceeding is to obtain a Court’s confirmation that the decedent’s Will is valid, properly executed, and attests that the decedent was competent when making their decisions to distribute their property to designated individuals.

As well as establishing the validity of the Will, a probate proceeding will confirm that the nominated executor is authorized to act as the executor of the estate.

What is the purpose of probate?

The purpose of the probate proceeding is to obtain a Court’s confirmation that the decedent’s Will is valid, properly executed, and attests that the decedent was competent when making their decisions to distribute their property to designated individuals.

As well as establishing the validity of the Will, a probate proceeding will confirm that the nominated executor is authorized to act as the executor of the estate. 

Is probate required if there is a will?

Yes, absolutely! Probate would be a required and mandatory step if the decedent executed a Will before their death. If there is a Will, there will necessarily be a probate proceeding before the Surrogate’s Court even if the Will is not contested or appears unambiguous on its face and sets clear directives. The named Executor is immediately ready and available to follow.

Whether your Will is poorly drafted and extracted from an internet website or whether a brilliant attorney drafts it, it will necessarily be subject to a probate proceeding! 

Is it better to have a will or a trust?

It depends on your needs, objectives, and goals. Both a Will and a Trust Agreement are estate planning tools, but they serve different purposes. If they can work together or refer to one another in a logic of general estate planning, a Will and a Trust agreement remain very separate documents with significant differences.

The most apparent difference between a Trust and a Will is that a trust is effective upon its duly execution, as the grantor is alive. At the same time, a last will have effect only upon a testator’s death and proper probate proceeding.

Does a trust override a will?

It is essential to understand that a Will and a Trust are two distinct, separate legal documents with different objectives and purposes. However, they can be part of the same Estate Plan and functional together. Many of our clients ask us whether a Trust overrides a Will. Our simple answer is that Trust (specifically a revocable trust) is established during the settlor’s lifetime and is effective immediately upon its execution by the settlor. Trusts are effective before the decedent’s death, while a Will is only effective upon the decedent’s death. Thus, the Trust precedes when there is a conflict between a Will and a Trust.

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