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What Happens If I Do Not Have an Estate Plan

July 24, 2016

Estate Planning is crucial no matter if you’re young or old, if you’re single or married, if you have children or not, if you have a high income level or not, or if you have many or few other physical or financial assets or prized possessions.

In this article, the estate planning and probate experts at Mikel J. Hoffman, PC Attorney at Law, will outline everything Long Islanders need to know about estate planning and creating a last will and testament and estate plan.

They will also list the essential items needed for an effective estate plan. In addition, they will explain what happens to your estate if you die intestate, or without a will or estate plan.

What Is Estate Planning?

Estate planning is used to ensure the proper disposal of your estate, i.e., financial and physical assets and personal affairs accumulated through the course of your life.

It is the process of anticipating and arranging the administration of your affairs in the event you suffer from a disability or becoming incapacitated.  An estate plan helps to remove uncertainties after your death allowing your loved ones to administrator your estate without conflict. A well defined estate plan may also avoid the necessity of your loved ones having to go to probate court. It may also help reduce taxes and other expenses prior to death in order to increase the value of the overall estate after death.

Estate planning is used to meet your specific goals, and an estate plan can be as simple or as complex as your needs dictate.  There are several factors to consider in an estate plan such as the amount and scope of assets as well as the number of your family members and other beneficiaries you wish to consider.  There are also circumstances when a family member should not share in your estate.

It also helps outline your needs and wants in the case of foreseen and unforeseen physical or mental incapacity due to illness or accident.  You may also want to designate specific guardians for any minors within your family.

Why Do I Need an Estate Plan?

There are many reasons why having an estate planning attorney is important and why everyone needs an estate plan. Perhaps the most important reason is to ensure your wishes are met in the case of incapacity and death.

Other factors that make a solid case for building a complete estate plan include the extent of your assets and how they are properly distributed; whether or not you’re married and/or divorced and/or remarried; whether or not you have step-, adopted or biological children or grandchildren; whether any of your children have special needs; whether or not you or your spouse anticipate financial assistance such as Medicaid.

There are myriad other factors to consider, depending on your age, lifestyle and income level, but make no mistake: an estate plan will provide peace of mind that your loved ones are cared for and your plans are properly carried out after you die.

Dying Intestate: What Happens If There’s No Will or Estate Plan

If you die without an estate plan in place or at least a will in place, then the New York intestate rules apply. These rules call for the assets – monies, property and possessions – pass to the heirs with no direction from the decedent (person who has passed away).

This can become sticky, depending on the relationships of the heirs to the decedent and to each other and on the amount of assets or size of the overall estate the decedent leaves behind. In New York if the decedent dies, for instance, and leaves a surviving spouse and descendants – i.e., children, grandchildren and great-grandchildren – then the surviving spouse will receive the initial $50,000 and half of the estate. After that the descendants will receive the remaining half of the estate.

If there is only a spouse, then the spouse will receive the entire estate. If there is no spouse and only descendants, then the descendants will receive the entire estate. If there is none of the aforementioned heirs, then New York State rules of intestacy continue depending on who the closest living relative is to the decedent.

In addition, the more complicated the family tree is, the more complicated an estate becomes without an estate plan or will in place that summarizes the decedents’ wishes about how exactly to divvy up assets.

An estate without a will or estate plan in place that designates who will take care of the young children in the event of the sole, one or both parents’ death becomes far more complicated and potentially heartbreaking. In the case of young children, you hope that a close family member will undertake this responsibility but this will be subject to the court’s approval.  If no family member, then the state could step in and dictate the placement and care of the children if the decedent doesn’t have a will or estate plan in place prior to death or incapacity. A clear estate plan can help minimize the state and the courts taking a role in the aforementioned children’s future.

Essentials of an Estate Plan

Planning for the protection of your property and the prosperity of your loved ones begins with an estate plan, which allows you to decide who gets your assets and when and how they receive them.

Mikel J. Hoffman recommends that an estate plan should include:

  • A Will: This allows for several things, including the appointment of the legal guardian for minor children (younger than 18 years old); making provisions to share or not share the estate with children from a blended family; appointing the caregiver and estate share of a child with special needs; declaring appointment of the person to be in charge of probating the estate, otherwise known as the executor; keeping assets within the family bloodline in the event any of heirs predecease you or prior to the appointed time of share distribution; withholding money from a child older than 18 years of age when he or she would typically be entitled to his or her share; and disinheriting a family member who would normally inherit from the estate.
  • Possibly a Trust: There are generally three types of trusts: a revocable or living trust, an irrevocable trust and a testamentary trust. A revocable or living trust is a common strategy to avoid probate. It is also ensures financial dictates in an estate plan remain in effect during your lifetime and after your death. An irrevocable trust is most often employed for estate tax planning or helping to qualify for government financial assistance. A testamentary trust is created within your will and is funded only after your death. It is most commonly used to hold back money from an heir who would typically inherit at the age of 18.
  • A Living Will: This is a written directive to medical professionals that explains the type and level of health care that should be provided – or not provided – in specific medical circumstances. This generally goes hand in hand with a health care proxy.
  • A Health Care Proxy: This is the authority one person gives to another designated person that allows that designated person to speak and make medical decisions on his or her behalf, especially if that person is incapacitated or otherwise unable to do so. This document generally limits the use of extraordinary life-saving or life-support efforts and underscores the person’s wishes to be made comfortable in the event of certain incapacitating medical conditions. This would also be part of an advanced health care directive.
  • Power-of-Attorney: This is a key document in a comprehensive estate plan. This is the authority one person – the principal – gives to another designated person – the agent – so the agent can legally act and speak for the principal. This authority can be as broad or restrictive as desired or needed, depending on the circumstances and wishes of the principal. This is especially important when it comes to a principal’s incapacity due to traumatic injury or disease such as Alzheimer’s or dementia.

Why It’s Important to Regularly Review Your Estate Plan

Every stage and major event of life comes with changes and nuances: for instance, marriage; divorce; re-marriage; blended families; having children and grandchildren; buying or selling real estate; changing jobs; starting, selling or passing down a business; and moving, to name a few. Relationships begin, end and evolve over time. Families grow and so do their needs.

This is why it’s vital to periodically review your estate plan to see if what’s currently specified coincides with the current state of your life, with all of your assets and possible beneficiaries and heirs. Wishes and requests upon death or incapacity put in writing at 25 years old can be vastly different than those at ages 35, 45, 55, 65, 75 or older.

Be sure to review the estate plan and make appropriate changes to it with the help of a knowledgeable estate-planning attorney such as Mikel J. Hoffman, who has more than 30 years of experience in this area of law.

How a Lawyer Can Help Create an Estate Plan

Life is clearly unpredictable and can throw a curve ball at any moment. Though an estate plan can’t anticipate every single curve ball, it can help prepare and protect a family’s legacy and help keep it out of the courts after a loved one dies.

So don’t put off getting an estate planning attorney any longer. Give Mikel J. Hoffman, PC, a call at (631) 661-2121 or fill out the easy online contact form to obtain more information about and help with putting an effective estate plan together today.

Based in Babylon Village, Mikel J. Hoffman is a probate and estate-planning lawyer and serving Suffolk and Nassau Counties on Long Island, including Amityville, Bay Shore, Huntington, West Islip, Lindenhurst and Wyandanch.

Please note the information in this article is not intended as tax or legal advice. It may not be used for the purpose of avoiding creditors or any federal or state tax penalties. Please consult legal or tax professionals for specific information regarding your individual situation and estate planning. Thank you.

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