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proceeding to exercise power over your financial affairs in the event of incapacity. Guardianship proceedings are expensive and uncertain, and there is no guarantee that the outcome will be that which you would have desired if you were able to speak for yourself. As with all aspects of estate planning, it is best to think of these issues and make the decisions for yourself, or you may find the state making them for you.
Last Will and Testament
The most important and ubiquitous document that is a necessary part of any estate plan is the last will and testament. This document will serve many important purposes, including providing for how your assets should be disposed of at your death, choosing fiduciaries to administer your estate (and any trusts created thereby), and selecting guardians for any minor children. In the absence of a last will and testament, the laws of intestacy of the State of New York will apply. This can lead to numerous problems. Perhaps the most frequent issue that arises in such a case is the conflict of a parent and child. Many couples expect or desire that their surviving spouse will
inherit their entire estate. Without a will, however, the property of a decedent will be split 50% to the surviving spouse, and 50% to the children who have survived the deceased spouse. In the event those children are minors, the Surrogate’s Court will appoint a guardian an item for the children, and the property will be held in trust for the children until they reach the age of majority, and the property will then be distributed to the children.
The problems here are two fold - first, the surviving parent will not have access to the funds in a time of uncertain financial circumstances (unless the children give the funds up upon reaching the age of majority); and second, the children will receive the entirety of such funds immediately upon reaching the age of majority. Even if the children are adults, in the event there are any issues between the surviving parent and the children, the children may refuse to waive their rights to inherit, and thereby deprive the surviving parent of financial support in their hours of greatest need.
Another important purpose of a will is the ability to create trusts for the benefit of your loved ones. These trusts can
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