April 20, 2020 Estate Planning During the Coronavirus Pandemic
KEEPING YOU INFORMED…
The COVID-19 pandemic presents an opportunity for you to review your existing Will and other estate planning documents to ensure that they accurately reflect your current wishes. If you do not have an existing estate plan, now is the ideal time to develop one.
As set forth in more detail below, the basic estate planning documents include the following: Will, Power of Attorney, Health Care Proxy, Living Will and one or more Beneficiary Designations. If you have not signed one or more of these documents, we encourage you to contact us.
Last Will and Testament
- Your Will should provide for your assets to be distributed to the persons and/or charitable organizations you wish to benefit and in a manner that: (a) properly reflects your wishes; and (b) adequately protects the needs and best interests of those beneficiaries through trusts or otherwise.
- The Executors and, if applicable, Trustees, who are named in your Will should be suitable, able and willing to serve in a manner that will accomplish your goals.
- If you have minor children, your designated Guardian should be suitable, able and willing to serve in a manner that is consistent with the values and goals that you wish to set for your children.
- If you do not have a Will, assuming you are survived by a spouse and one or more children, under the New York State laws of intestacy, your surviving spouse will receive $50,000 plus one-half of the remaining assets of your estate. Your surviving children will receive the remaining one-half of your estate assets. This presents a myriad of problems especially if your children are minors. As a general rule, the Surrogate’s Court will require that the assets payable to a minor child be deposited in a joint account with the Court. Thus, the use of the funds for the benefit of that minor child will be subject to Court approval and supervision. This creates a time consuming and costly process, which is easily avoided if you have a Will. An additional problem results from the fact that, when the child attains the age of 18 years, all assets remaining in the account set aside for his or her benefit will be distributed outright to the child. In most cases, this is not a desirable outcome. Therefore, it is imperative that parents with minor children execute Wills to avoid these complications.
Durable Power of Attorney
Under a durable Power of Attorney, you designate one or more individuals to act as your agents, to make financial decisions on your behalf, including, by way of example, banking, legal and tax decisions. A Power of Attorney that is durable remains in effect even if you become mentally unable to manage your financial affairs. You should update your Power of Attorney if the agents you have selected in your existing Power of Attorney are no longer suitable.
Health Care Proxy
It is especially important in these uncertain times for you to have an up-to-date Health Care Proxy and that you have copies of it readily available. A Health Care Proxy allows you to appoint someone to make medical decisions for you, in the event you are unable to do so. The Health Care Proxy should include a provision that allows health care providers to discuss your medical care directly with your designated agent(s). You should update your Health Care Proxy if the agents you have selected in your existing Health Care Proxy are no longer suitable.
A Living Will is a document where you express your wishes concerning end-of-life care, including instructions regarding do not resuscitate orders, intubation, feeding tubes, etc. It is important that your wishes be documented in writing.
We recommend that you review the beneficiary designations that you have made on your bank, brokerage and retirement accounts, annuity contracts and life insurance policies to make sure they reflect your current desires. These designations may not be changed by your Will.
Adult children, including college-age students, who are over the age of 18 years should sign a Power of Attorney and a Health Care Proxy. Without these documents, once a child attains 18 years of age, his or her parents will not be legally authorized to make decisions related to, or obtain relevant information about, the child’s financial arrangements and/or medical needs.
We encourage you to contact Jeff Zankel, Diane Moffet or one of our other attorneys at the direct dial number or e-mail address indicated on the contact information page attached to this memorandum to discuss your estate planning needs.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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© Lamb & Barnosky, LLP 2020