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Estate Planning

 Establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones.  Proper estate planning allows you to remain in control of your finances while sparing your loved ones the burden of managing your affairs when you no longer can.


Providing for Incapacity
 

Many are under the mistaken impression that their spouse or adult children can automatically take over for them in the event that they become incapacitated.  However, in order for others to manage your finances, a Court must declare you legally incompetent.  This process can be lengthy, costly and stressful.  Additionally, the person appointed to manage your finances will likely have to return to Court each year to prove how they have spent and/or invested your money.  On the other hand, if you take the time to execute the proper legal documents, your family will able to take over your finances with ease.


 In addition to planning for the financial aspect of your affairs, you should also establish a plan for your medical care.  The law allows you to appoint someone you trust to make decisions on your behalf regarding medical treatment if you lose the ability to decide for yourself by using a durable power of attorney for health care.  In addition, a living will informs others of your preferred medical treatment should you become permanently unconscious or terminally ill.


Wills and Trusts


 After working hard your entire life to provide for your family and ensure that your loved ones are secure, you must take the necessary steps to ensure the assets that you have accumulated are distributed as you wish when you pass away.  In addition to a plan for your assets, you must also establish a plan for your most prized possession – your children.


 Our firm can help you prepare a basic or complex will, establish trusts, navigate through the probate process, protect your rights in the event that a will is contested and ensure that your wishes are carried out.


Guardianship


 For some members of our society, legal protection may be necessary even after they have entered adulthood.  These individuals may have been injured in an accident, suffer from an incapacitating physical illness or psychological disorder, or have some other condition which prevents them from caring for themselves.  In these cases, a guardianship may be established.


 Guardianship is a legal arrangement which places an individual under the supervision of a guardian.  The guardian is typically a family member, friend or fiduciary appointed by the Court to act as either guardian of the person and/or guardian of the estate.  Additionally, guardianships may be used to protect the legal rights of a minor in the event that a parent is no longer able to act on behalf of his or her child.

Probate & Estate Administration

 

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

Every probate estate is unique, but most involve the following steps:

• Filing of a petition with the proper probate court.
• Notice to heirs under the Will or to statutory heirs (if no Will exists).
• Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
• Inventory and appraisal of estate assets by Executor/Administrator.
• Payment of estate debt to rightful creditors.
• Sale of estate assets.
• Payment of estate taxes, if applicable.
• Final distribution of assets to heirs.

FREQUENTLY ASKED QUESTIONS

What happens if someone objects to the Will?

An objection to a Will, also known as a “Will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.
In order to contest a Will, one has to have legal “standing” to raise objections.  This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.  In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are what is called “non-probate assets” do not go through probate.  These include:

• Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate.
• Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
• Life insurance policies.
• Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
• Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.

Do I get paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate.  In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate.  The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care.  It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.

How much does probate cost?  How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay.  Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds.  These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.

 

Our Services


 Allow our firm to assist you in creating an estate plan that is right for you.  Our services include, but are not limited to, the following:


· Power of Attorney
· Health Care Proxy
· Living Wills
· Wills
· Trusts
· Probate Administration
· Will Contest Proceedings
· Federal Estate Taxes, Gift Taxes and Generation Skipping Transfer Taxes
· Guardianship of the Person
· Guardianship of the Estate or Property
· Guardianship of Minors


Feuerstein & Smith, LLP assists clients in Buffalo, Niagara Falls, Tonawanda and throughout Erie County, as well as in Florida, Puerto Rico and the U.S. Virgin Islands.



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