Introduction to Trusts and Wills in New York City

Trusts and wills is a field of law that deals with matters relating to the preparation, execution, and implementation of estate planning documents, such as trusts and wills. The field of wills and trusts is varied and wide. Not all wills and trusts attorneys practice in all areas of trusts and wills. For this reason, finding an attorney who focuses on and has previously handled cases in that area is important in the successful resolution of your case.

Wills

A will is an estate planning document that is executed by the testator in accordance with the formalities required by state law, designed to immediately transfer the testator’s property to third parties after the testator’s death. A wills attorney can either be engaged in drafting and execution of last wills and testaments, in the probate of the admission of the will, in probate litigation (which includes will contests, discovery and turnover, and objections to accounting), or in preparation of informal and formal accounting documents.

Drafting of Last Will and Testament

The drafting of a last will and testament requires careful estate planning, considering the totality of assets, the kind of assets, and lifetime objectives of the client. The last will and testament is usually part of a packet of estate planning documents prepared, which may include trusts, health care proxies, and powers of attorney.

Execution of Last Will and Testament

The execution of the last will and testament must be in accordance with state formalities. In New York, a last will and testament must generally be signed by the testator at the end of the document, declared to the witnesses that what the testator is signing is the last will and testament, request the witnesses to act as witnesses to the will, and which testator’s signature must be attested by the witnesses. Nowadays, a last will and testament also includes a self-proving affidavit, executed by the witnesses and notarized by a notary, which affidavit gives rise to the presumption that the will was validly executed and which usually dispenses with the need of witness testimony during the probate of the will.

Experienced wills attorneys will usually have a script ready for the client and the witnesses during the execution ceremony in order to ensure the execution of the will can withstand court scrutiny.

Probate in the Admission of the Will

The probate of the will is an important area of the legal field of will and trusts. In order for a will to be effective, it must be submitted to the court for probate. A court will only admit a will if it is genuine, authentic, and validly executed by the testator. An experienced wills attorney will be more knowledgeable about the forms required to be submitted to the probate court and the other remedies an executor or administrator can pursue in case there is a forecasted delay in the probate of the will.

Will Contests

The area of will contests is another focus in the field of wills and trusts. Will contest lawyers are more adept with litigation and the presentation of evidence before the court. But more than litigation, they are familiar with the different grounds for contesting the will, how to defend from will contests, and finding the weaknesses for the different grounds in contesting the will.

Discovery and Turnover Litigation

Another area in wills and trusts is discovery and turnover litigation. This type of litigation occurs when the executor or administrator discovers that the property of the decedent is in the possession of a third party. Discovery and turnover are two types of proceedings with different purposes. Discovery is initiated against persons with knowledge of where the decedent’s property is located, while turnover is initiated against persons who have possession of decedent’s property.

Objections to Accounting

Another area in the field of wills and trusts is the litigation related to objections in accounting proceedings. Depending on the complexity of the estate, look for an attorney who has experience with kinship proceedings and other potential issues that may be raised during accounting proceedings.

Preparation of Informal and Formal Accounting

The preparation of informal and formal accounting reports is another area in wills and trusts law, where not all wills and trusts attorneys have knowledge or experience on. The preparation of accounting reports requires a meticulous review of the estate account and proper recording in the accounting schedules provided by the court. A detailed informal accounting report prepared by an estate or trust accounting attorney can withstand court scrutiny and objections.

Trusts

A trust is a legal arrangement where a grantor transfers property to a trustee, who is tasked with the duty of managing the trust property in accordance with the trust document and for the benefit of beneficiaries. Trusts may be revocable or irrevocable and are used for Medicaid planning, creditor protection, and reducing taxes. Trusts attorneys handle the different aspects of trusts, from preparation and execution of trust documents, estate planning, Medicaid planning, and trust litigation. Not all trust attorneys have experience in all fields of trust, and finding the right trust attorney who can handle your particular legal issue is important in the success of your case.

Trusts are the preferred estate planning tool of estate planning attorneys because it can be formed to achieve the many objectives of a client. It can reduce the assets of a client for purposes of Medicaid eligibility. It can segregate the assets of a client in cases of blended families, dividing assets equitably between children from former spouses and current spouses, evading the application of the spousal election rule for trust assets. An experienced trust attorney can also help reduce taxes when transferring wealth to the succeeding generation, can prepare legal documents to spend down assets for purposes of Medicaid eligibility, and can ensure the grantor can retain some level of control and prevent trustee abuse after the execution of an irrevocable trust.

Some trust attorneys may focus on trust litigation, which includes the removal of a trustee, petitions to revoke an irrevocable trust, interpretations of trust provisions and the link.

A wills and trusts attorney can help you in estate planning and all other aspects of wills and trusts. However, not all wills and trusts attorney focus on all areas, and finding the right wills and trusts attorney who practices in that specific field can be a factor in the success of your case.

Should you need assistance in wills and trusts, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].