Rochester Estate Planning Law Blog

A health care proxy and a living will are both legal documents that address the type of medical care you would or would not like to receive in the event you become unable to communicate those wishes to your doctors. Although these documents are often used by those who are planning for end of life care, they are not just for the elderly. All adults can use these documents to be prepared in case something unexpected happens.

A health care proxy names an alternate decision maker

New Yorkers who are seeking to shield their assets as efficiently as possible yet still want to be generous with their loved ones should think beyond the simplest aspects of drafting estate planning documents. Understanding the available loopholes to perform certain acts of giving are wise strategies to avoid tax implications while providing loved ones with items the person wants them to have. For example, the beginning of the year is generally viewed as the optimal time to give estate planning gifts. To understand the law fully and be protected, it is always wise to have legal assistance.

Under the law as it stands, less than 1 percent of estates will face taxes, so the majority does not need to be concerned about gifting to keep estate and gift taxes under control. However, there are other reasons why giving gifts to loved ones on an annual basis is a wise step and is a sound strategy when crafting an estate plan. Giving a lifetime gift will help loved ones immediately and they will not need to wait until an undetermined time. The person giving the gift will know how the recipient is using the gift and provide a guideline for the future.

When New Yorkers create an estate plan, those who are married will inevitably include their spouse as a key part of it. This can be as the predominant heir and perhaps the executor of the estate. However, after drafting estate planning documents, some marriages will come apart and the couple will divorce. This can impact the estate plan in myriad ways. After a divorce, there are important considerations that must be factored in given the new circumstances.

The estate planning attorney should receive a copy of the divorce agreement, so the document can be adjusted based on the post-divorce obligations. Many had a health proxy that granted the former spouse the power to make health care decisions. This should be changed if the spouse is no longer the one whom the person wants to make those determinations.

When a person creates an estate plan, there are laws that dictate how it will be handled after that person - the testator - has died. This is true regardless of the device that is used in the estate plan such as a will, a trust or anything else. The surviving spouse is an important part of the document. However, there are times when there is a dispute over the surviving spouse and if the classification as such remains in effect. Understanding the law as to when the person is no longer considered to be the surviving spouse is important to the probate process after death.

If there was a divorce, an annulment, a declaration that the marriage is nullified, or dissolved because of absence when the testator died, the person is no longer considered a surviving spouse. If the marriage was deemed incestuous, bigamous, or prohibited, the person will not be considered a surviving spouse. If there was a divorce, annulment, nullification, or dissolution because of absence and it was decided outside the state of New York, the person is no longer a surviving spouse.