New York Estate Planning & Elder Law Blog
Creating a thoughtful estate plan is one of the greatest gifts anyone can leave their loved ones. It is important to update your will when major changes occur. These might include marriage, divorce, opening or closing a business, buying or selling real estate, or birth or death of an heir.
Estate planning is a process that helps ensure that your desires for distribution of your property and assets at death are carried out. During life, to complete an estate plan, you should consider the following:
- Will: A will is the primary document that should be prepared while living, to be effective at death. A will is a written document expressing how you would like your estate to be distributed after death. Usually a will must be executed in the presence of two disinterested witness and be notarized. You must also have testamentary capacity (over the age of 18, of sound mind, and competent).
o Most folk need some sort of basic will.
o There are many options to avoid the hassle of probating a will.
o But none of them covers everything.
o A basic Will is a safety net for anything that may not be neatly captured in the other alternatives.
- Intestate Succession: Estates with a valid will are referred to as “testate” estates. Those without a will are “intestate” estates. Testate estates normally pass through probate more quickly than intestate estates. The time required to settle probate estates depends on the type of property inherited, court caseload, and family dynamics.
o If there is no will, state law determines what the children inherit.
o There is a lot of variation among state laws.
o To transfer real property located in a state will likely require opening an estate in that state.
How long does the probate procedure take?
In every state, heirs and creditors are notified that probate is occurring. If heirs agree to the terms of the will, the probate process can usually be completed within a few months. The average time-frame to settle intestate estates (estates without a will) is 6 to 9 months. If creditor claims are submitted against the estate, probate can be prolonged for several months. When family members disagree over distribution of assets or if an heir contests the will, probate can be extend for a year or longer.
Estate planning is important because it ensures that your money and other assets are inherited by the people you want. Other benefits include limiting tax liability, saving heirs and beneficiaries trouble, money, and heartache, and preserving estate assets.