When I refer to a “probate case”, I am talking about any situation where someone has died and now someone else is now in my office.

In these situations there are 3 main areas I ask questions about.  I can’t think of a situation where these questions would not be asked.  Ask these questions helps me figure out what may need to be done, helps me analyze possible scenarios, and helps me decide whether (and on what basis) I would consider getting involved.  Here are the 3 questions….

  1.  IS THERE A WILL?
  2. IS THE SITUATION FRIENDLY OR UNFRIENDLY?
  3. AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)?

 

IS THERE A WILL?  Sometimes it’s not so simple.  Maybe we only have a copy?  Maybe the Will is questionable?  Maybe the Will was revoked?  Maybe we can’t locate the Will?Whatever the story is, I want to know any issues about a possible Will.   Sometimes the answer is a clear “there’s no Will”.  So be it, and we know we are doing an Administration under the laws of intestacy.   But at least we have square one covered…

 

IS THE SITUATION FRIENDLY OR UNFRIENDLY?  Contrary to what many people think, very often these situations are friendly.  That being said, even friendly situations require identifying and locating all the people whose written consent may be required.  This is true whether there is a Will or not.  Anyone who has a possible legal interest must be accounted for in the Court filings, or a fiduciary cannot be appointed.  So, in a friendly situation we would have the interested (friendly) parties sign the right papers (usually a “Waiver & Consent”) for whatever is going on.  If some interested party is unfriendly, I want to know what the problem is.  We can proceed even if there is unfriendliness, but we will have to put those folks on notice (usually with a Citation), knowing they may show up in Court and have something to say.  So be it, we can prepare accordingly…

 

AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)? – Very often the person who contacts me is not the fiduciary.  In fact, they contact me because they have questions about what the fiduciary is (or isn’t) doing.   In those cases I ask first about #1 and #2.  I ask about the Will because I want to know what their interest is….a fixed dollar bequest?  a percentage?  an intestate share?  I ask about #2 because rather than assume things are very unfriendly, that is not always the case.  Sometimes nobody has actually asked the fiduciary (m)any questions.  While the fiduciary should have volunteered the info, a clear and polite request from an attorney will often get a useful answer.  Sometimes, it’s only a little unfriendly and things can be resolved with some level of inquiry.  And of course, sometimes it’s VERY unfriendly and the fiduciary is a dastardly sociopath.  In those cases you have to be prepared for ANYTHING.  I’ve been there, and getting involved is sometimes a bad choice.  It’s a choice I make VERY carefully, and if I sense insanity on the horizon, I say NO and never regret it.

Anyway – that’s how I approach every new case.  Three main issues, once we talk about all three I’ll have a good idea of what the options and scenarios are.

BTW – I would NEVER quote a fee, flat fee, hourly fee, percentage, or any other fee, without thoroughly discussing the 3 issues.  It would not be fair to a potential client and it would not be fair to ME (something I DO consider).

Comments and questions are always welcome!!!

 

 

WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”.  Their assets go to “family members” under the State’s laws of intestacy.  So, the question any sane person with assets should be asking is “Who would inherit from me if I don’t make a Will”.

If the answer to that question is not what the person would want, THEY SHOULD MAKE A WILL.

Which leads to the question….WHY DON’T THEY???

WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?

WHY…..when people who have “nobody to leave my money to”, why don’t they make bequests to friends?  or charities?

WHY…..do some people put off doing something they know they SHOULD do?

Here are 10 reasons I’ve seen:

  1. Procrastination as a way of life.
  2. Fear of tempting the evil eye.
  3. Not being able to decide who should inherit (or waiting to see who deserves it.)
  4. Not wanting to spend ANY money to take care of this “discretionary” item.
  5. Not wanting to discuss their personal business and/or finances with anyone.
  6. Thinking they’ll do it later, “when they need to”.
  7. Under valuing their assets…this usually happens when there is a house and no liquidity.
  8. Thinking they have all their assets passing directly, so a Will would be moot.  Sometimes this is true, but usually not.
  9. Guilt related to what departed persons (parents or grandparents) would think about what they want to do.
  10. Simply being a selfish, self-centered narcissist who doesn’t care what happens when they are gone.

One could probably write a book, or at least a blog post, about each of these.  I will not do that here.  I will simply note that each of these reasons raise questions that anyone who has ANY of those thought patterns ought to consider,along with my initial question “Who would inherit from me if I don’t make a Will” AND “How would that result sit with me for eternity IF I DIED TOMORROW”?

Eternity is a long time.

 

Sometimes people write down their wishes or give written directions regarding what they want done after they die.  Sometimes they even call it a Will.

Will these be considered a Will?   NO

Sometimes people who would benefit from such writings ask me, as a lawyer, to bring these writings to the Courts attention.  They are essentially saying “Surely the Court will give SOME weight to the deceased person’s written statements.”  Will I make this argument?  NO

In New York, the only writings that will be considered a Will are those that fit the definition of a Will.  Briefly stated, “signed at the end in front of two witnesses”.

Not one witness.

Not “notarized”.

Can LegalZoom and other home made Wills qualify as Wills?  YES, if they meet the definition of a Will.  Most home made wills, where people have researched how to do it, actually turn out to be Wills.

But many attempts to make a Will, or related attempts to give directives after a person dies, FAIL.

When I see this, especially when the attempt looks legit, it’s pretty tragic. Sometimes it’s tragic because of the amount of money involved.  But even worse is the idea that the person wanted something done which would help somebody they cared about, and it isn’t going to happen.

I won’t take a case where we would be trying to make something a Will that isn’t, or try to convince the Court to do “the right thing”.  My advice in those cases is to tell the client to contact the people who benefit from the writing not being a Will and ask THEM to do the right thing.  Oh…and be nice when you ask.  Does this ever work?  Rarely, but when reasonably nice, honorable, ethical people are involved, sometimes they work something out.

More often though, such situations result in a hurt that lasts a lifetime.

In consideration of the above, if someone wants to “get their affairs in order”, they should do it right.  If you know someone in that situation and they need help, by all means HELP THEM.

Do I think the right thing is to encourage them to have a lawyer help them?  YES  But even a LegalZoom will or an effort where you try to get it right is better then a signed “letter”.

If you can’t find a lawyer who is affordable for this, look harder.  Many lawyers are willing to do basic Wills for surprisingly low fees.

I’ll go one further…..If someone fairly local needs a Will and is in the hospital, or confined to home, if they are able to tell me what they want, I WILL MAKE A HOUSE CALL TO GET THIS DONE.  It’s that important.  I know I am not alone in this approach.

Every time I do this, I know I scored a plus one in the cosmic karma of the universe.

So I got THAT going for me…which is nice.

 

If a fiduciary (in NY it’s an “Administrator” if no Will and “Executor” if there is) has to file an Accounting, where should they start?  What should they do?

The Answer is to know what you should have been doing all along, and if you haven’t been, get caught up as much and as quickly as possible.   Here’s what you should have been doing:

  • Collecting the decedent’s assets and depositing into an Estate bank account.
  • Addressing any creditor claims.
  • Filing tax returns when due and paying any taxes that might be owed.
  • Communicating to the interested parties about what is going on.

Does everyone do all these things perfectly?  Not always.  But if you have to account it should not be difficult to start catching up.  Not only that, if catching us is going to take some time, I’d suggest being open about it by disclosing to the beneficiaries exactly what is going on and how you are addressing it.

I have been using an expression lately that fits here:  “The fact that I should have already done something is no reason not to do it”.  Start doing it.  Collecting assets, dealing with creditors, dealing with taxes and communicating with beneficiaries IS the job.  It takes time and some persistence to do these things.  Just do what needs to be done.  If you need help, get help.  But get it done and communicate.  It’s way worse for everyone when you don’t.

Will some people second guess you?  Maybe, but that’s part of the job too.

For all these things to do, you should have your records and back-up.  If you got a little disorganized, or don’t have all the records, it just takes some time and effort to get what is missing and then organize it.  For many reasons, assets are sometimes hard to locate or difficult to collect.  Most beneficiaries understand this, and most of these problems ARE solvable.  I suggest fiduciaries try to solve these problems, but many times I do get involved as an attorney.  If this costs the estate a few bucks, beneficiaries understand this.

Creditor claims can be tricky and time consuming, but a fiduciary should not ignore them.  Every case is unique when it comes to creditor claims.  You have to factor in the nature and size of the claims, the number of claims, the known assets in the Estate, and know your settlement leverage, whatever it may be.  At the very least, I like to review this issue with the fiduciaries and have a strategy.

Most accountants do a fine job with filing income and estate tax returns for Estates. Common sense says avoid tax season for this if you can.  Accountants are happy to work on these estates when they are less busy.  If you don’t know an accountant, or don’t want to use your own, ask your attorney to refer one.  As a fiduciary, what you never want to do is have tax returns filed late.  When this happens, it’s your fault and you could be liable for any penalties an interest.  One of the reasons to collect assets quickly is have the Estate liquid enough to pay estimated taxes and avoid penalties.  I’d rather a fiduciary over pay an estimated tax and get a refund, than to incur penalties and interest later and be personally on the hook.

This brings up an important point.  When I am an attorney for a fiduciary, who is my client?  Am I the “attorney for the Estate”, as is often said?  I never refer to myself that way.  I consider myself the attorney for the fiduciary, in that capacity. That’s why I give the advice referred to above – I view my role as advising the fiduciary to act correctly in their role.

Finally, when communicating with the other beneficiaries, one should be conscious of any appearance of a conflict of interest.  This becomes clear when, as is often the case, the fiduciary is also a partial beneficiary (ie – the Estate is to be split 4 ways and the fiduciary has a 1/4 interest).  Your communication should always make your role clear, and you should be blatantly non-preferential towards yourself.  You’ll be entitled to you Executor’s fee off the top, and reimbursement of your expenses, plus your beneficiary share.  I want to make sure you get all that if that’s what you want.  (Sometimes fiduciaries do reduce or waive their fee, but that is a personal decision)

It is often said that the best way to settle a possible lawsuit is to prepare as if you would have to prove everything at trial.

When you have the goods, and you show that you did it right, these things resolve.

And if they end up in Court despite this, you are ready.

When I start representing someone who is about to become a Fiduciary (Executor or Administrator) of an Estate, I always talk about “how an Estate finishes”.  Like many things in life and business, if you know where you are trying to go it is much easier to make a good plan to get there.

Not every State handles “estate completion” the same way.  There are two basic approaches:  mandatory accounting vs non-mandatory accounting.

In a mandatory accounting State, there is some proceeding that must be filed so the the Court knows the Estate has been completed and the fiduciary has done what they are supposed to do.  This generally involves filing forms and paying a filing fee, and there are generally time constraints (so if it is not ready to be completed you have to explain why).  I’m not going into more detail because New York (where I practice) is NOT a mandatory accounting State.

In a non-mandatory accounting State, the fiduciary is not required to file anything with the Court to show that the Estate is completed.  This raises two logical questions:

  1. What SHOULD fiduciaries do to complete an Estate and protect themselves?
  2. What happens in New York if there is some issue or problem in completing the Estate?

What a fiduciary SHOULD do is keep good records, communicate regularly with the beneficiaries in a transparent way, file any tax returns that are required, and then….SEEK TO COMPLETE THE ESTATE WITH AN INFORMAL ACCOUNTING.

This is done by showing the beneficiaries what has been done.  This can be done with a letter, or on a spreadsheet, or in any way that shows a bottom line for a proposed final distribution.  With this informal accounting we would send a document called a “Receipt & Release”.  This document essentially says “I know what you did as Fiduciary and I agree it was correct and I agree with the bottom line and I release any claims I may have about this”.  The letter to the beneficiary makes clear that when the Receipt and Release is signed “then you will get your money”.

What if the beneficiaries don’t agree?  Or don’t respond?

While New York is not a mandatory accounting State, the Surrogate’s Courts have an Accounting Department, and there is plenty of law on how one CAN file a formal Accounting Proceeding.  Unfortunately, this happens a lot.  The Accounting Department is where the action is, and most of the really acrimonious disputes are there.

In a nutshell, when a Fiduciary wants approval for what he has done, or what he is proposing to do to complete the Estate, a formal accounting is filed with the Court.  The Court will then issue a Citation to the interested parties, which essentially says “Fiduciary has filed the attached accounting and is asking the Court to approve it.  Come to Court on (date) or a Decree will be issued approving the Accounting.”

If a beneficiary gets such a Citation and wants to dispute something, they come to Court and file Objections to the Accounting.  This then becomes a case, like any other civil litigation….discovery, motions, conferences, etc.

Generally, an expensive, nasty mess.

Which is why it’s better to do a good job as fiduciary and find a way to account informally.

Next post – what if you are the beneficiary and the Fiduciary doesn’t account (formally or informally)…. at that point it’s a “Petition to Compel an Accounting”

 

Basic definition – A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other asset for another person.

When doing Wills or handling Estates, we are often talking about fiduciaries.  A person who is named as Executor of an Estate, or who is appointed as Administrator of an Estate (in a no-will situation) is a fiduciary.  What does this mean?  Why is understanding this so important?

I usually explain it this way – “A fiduciary has a higher level of responsibility than an individual.  They are responsible to look out for the interests of everyone who has an interest in the thing they are the fiduciary for.  If there is a conflict between an individual’s interest and their responsibility as a fiduciary, they must exercise extreme caution and make sure they fulfill their fiduciary responsibility before looking out for their individual interests.”

Very often a person named as Executor in a Will (who will therefore become a fiduciary) is also a beneficiary.  Is there an inherent conflict of interest in this?  YES, but this is not a prohibition against doing it, it is simply something to heed at all times and to work through carefully.

On the surface, we can see that if a Will names one child of four as Executor, and splits the Estate equally among the four, the Executor should divide the Estate equally and not make their own share higher, or pay their share earlier than the others.  That’s easy.

But there are often others the Executor/fiduciary has obligations to, like creditors and tax authorities.  What happens if the Estate owes taxes, or if a creditor claim arises within the permitted time?  Let’s add the fact that the Executor has marshaled the assets and wants to do right by the other beneficiaries, so he pays them their full shares.  Lo and behold, a timely creditor claim against the Estate pops up but the Estate funds have already been paid out to the beneficiaries.  Guess what?  The fiduciary can  be held personally responsible for breaching their fiduciary responsibility!

Being a fiduciary can often be a difficult and stressful job.  In New York an Executor or Administrator is entitled to be paid a fee for their work.  The fees (called “commissions”) are roughly 5% of the first $100,000, 4% of the next $200,000, 3% of the next $700,000, and so on.  It can add up to some money, but most would tell you, they EARNED IT.  I have to agree.

A few observations about fiduciaries….

  • Selecting an Executor via a Will is a VERY important decision.  Sometimes even more important than naming beneficiaries.  Naming successor Executors in a Will is also very important.  These people will be fiduciaries, so make sure they are up to it.
  • When an Estate is being handled well, usually it’s because the fiduciary understands their responsibility.  When an Estate is not being handled well, or when someone has an issue with the way things are being handled, a “breach of fiduciary responsibility” is generally at the core of any claims.
  • In an Estate Administration (no Will), when people are fighting over who should be appointed fiduciary, they either don’t understand the fiduciaries’ role, or they are fearful that the others don’t.  I have seen this scenario MANY times.
  • The best ways for fiduciaries to avoid problems are to have clear and transparent communications with the interested parties and to keep great records.  Other than outright stealing, nothing will put a fiduciary in a worse position than secretiveness and lack of communication.  I counsel client fiduciaries to be pro-active in communicating with the other interested parties.  I can’t say they always follow my advice, but I KNOW it is the right advice.

I may have given a few practical reasons to do things right, but there is a bigger reason.  If someone named you as Executor, it’s because they TRUSTED YOU.  As difficult as the fiduciary role can be, it is an “honor bestowed”.   That alone ought to be enough for a person behave as a fiduciary should.

If you are that person, remember that.  If you are making a Will, choose someone who will get that!

Sometimes in Surrogate’s Court proceedings there are parties who have an interest in the proceedings but for some reason they cannot legally participate.  This can occur in any type of proceeding:  Probate, Administration and Accounting are the most common.  A party is considered “interested” if the proceeding affects them in some way.  In order to proceed with ANYTHING in Surrogate’s Court, you have to have “jurisdiction” over interested parties.  What this really means is you have to show the Court that the party was legally notified of the proceeding, and they either agree, object or take no position.  Bottom line though, the Court has to know they were notified and given the opportunity to be heard.

In a probate proceeding, the Court must have jurisdiction over anyone who would inherit under intestacy, since these are the only people would would have standing to object.  In an Administration proceeding (no Will), we need jurisdiction over all the inheritors because someone is asking to be named as Administrator, a right that the inheritors also have.

The problem is sometimes the people you need jurisdiction over either cannot consent, cannot legally be served with a notice, or cannot be found.

Here are a few common examples:

  • Minors – in New York a person under age 18 is cannot legally sign a Waiver or object to a proceeding that affects them.
  • People who are mentally or physically disabled.
  • People who are incarcerated.
  • People whose whereabouts are unknown.

If someone fitting any of the above categories is identified as having an interest in a Surrogate’s Court proceeding, the Court will appoint a “Guardian-ad-Litem” (Latin for Guardian for the litigation).  These Guardians represent their ward’s interest in the case and report their findings to the Court.  If they have a basis to file Objections on their ward’s behalf, they are empowered to do it.  Guardian-ad-Litems are usually attorneys who practice in the Surrogate’s Court.  At the conclusion of their service, they file a Report which includes a statement of the time spent, for which they request the Court to set a fee.  This fee is paid by the Estate.

I have been appointed Guardian-ad-Litem many times.  I take the assignments very seriously, and am honored that the Surrogate has the confidence to appoint me. Although many times the reports are pro-forma and state that things are all in order and there is no basis to object, by no means is it always a rubber stamp.  I have filed Objections MANY times, and very often these cases are quite interesting.

For example, I am currently Guardian-ad-Litem in a case where an Administrator was appointed, then found a Will among the decedent’s possessions, which was filed with the Court.  However, they did not try to probate the Will because the Will had writing on it, apparently in the Testator’s handwriting, saying “This Will is no good”. The Will also had sections crossed out.  The Will named a non-family member as the sole beneficiary.  The Administrator took the position that the Will had been “revoked” by the writings on it, and proposed to pay all the money to the decedent’s estranged son.  The Administrator claimed they did not know where the named beneficiary was.  The Surrogate appointed me Guardian-ad-Litem for the beneficiary.   I filed Objections on my wards behalf, because in my opinion it is arguable this Will was not properly revoked.  I then tried to find my ward (who the Administrator claimed they could not find), and within an hour I found her!  I don’t know yet how this will turn out, but at least now the issues can be fairly decided, with all the interested parties being heard from.

I have certain steps I follow when I am appointed Guardian-ad-Litem.  Among the things I do are review the Court file, contact the Petitioner’s attorney and discuss the case, contact my ward (if appropriate), contact other interested parties if necessary, research legal issues, participate in Court proceedings, file a report and any supplemental reports the Court may require.

Anyway, the above are the basics.  In future posts I will discuss other specific Guardian-ad-Litem situations.

What happens if someone involved in an Estate is dead?  These situations are very common.  A few standard approaches apply….let’s look at a few situations:

The most important distinction to know is that PRE-deceased situations are very different than POST-deceased situations.  When I refer to “PRE” and “POST” I am talking about when the person died in relation to the decedent (the one whose Estate we are talking about)

The basic rule is that POST-deceased persons do not lose their rights.  Generally, the interest a post-deceased person had in an Estate now belongs to THEIR Estate.

A quick example – A widow with three adult children dies with no Will.  Her heirs would be her three adult children.  Some time passes and no action is taken in this woman’s Estate and then one of her adult children (let’s make him a son) dies. What are the shares in the widow’s estate?  It would be one-third each to the two living children and one third to the heirs of the post deceased son.  Those heirs would be determined either by the son’s Will, or if he had no will, by HIS heirs under intestacy.  Let’s give the post-deceased son a spouse and 4 minor kids, and no will.  So now, his one-third interest will be divided within his Estate under intestacy ($50K + half to the spouse and the other half among the minor children).

Wait, it gets worse…..if we want to move forward with the widow’s Estate, we can’t even get started until we get jurisdiction over the post-deceased son’s estate.  That is, we have to establish the post-deceased son’s estate before we can even move forward with the main estate.  It is not unusual to process a post-deceased estate BEFORE you can even do the main Estate.

Pre-deceased situations are different.  Let’s take the above example and make the adult son pre-deceased.  In that case, the widow’s Estate would go one-third to each of the the two surviving children and one-third split among the 4 grandchildren.  The daughter-in-law would be OUT.  (Note – in a post-deceased situation she would be IN for a meaningful share).

I have been involved in Estate with multiple “estates within estates”.  These complexities must be addressed or nothing can move forward.

There are a few important lessons in all this:

  • Estates should be addressed promptly.  For various reasons things can get delayed.  I have seen situations where nobody did anything in an Estate for 20 or 30 YEARS!  This usually happens when the only asset is a house, and nobody does anything because some family member is living in the house and then they die (or move, or need money).  But even in non-extreme situations, a delay of a few years due to procrastination creates complications related to post-deceased parties.
  • People should make Wills.  When people don’t make Wills, results are often a crapshoot.  In the predeceased child situation above, if the widow had a Will her wishes would be clear.  Maybe she would have left something to the daughter-in-law…it happens more than you might think.  Maybe she would have put her grandchildren’s funds in a trust and named an appropriate Trustee.
  • People should make Wills, Part 2.  If the post-deceased son above had a Will, it would have been clear what HE would have preferred, and I suspect it would have been 100% to his spouse…for her benefit and so she could take care of their children.  Having the inheritance going partially to the grandchildren is a horrible result, especially if they are minors.  The money would be tied up in Guardianships, with a ton of money wasted, to say nothing of the inconvenience and heartache.  Easily preventable, but a person has to be pro-active and make the Will.
  • When people make Wills, among the most important considerations are the “what-if” scenarios.  Well drawn wills reflect the persons intentions in case someone pre-deceases.  Wills that don’t do this leave too much to chance.

While “estate within estate” situations are more work than estates without this issue, it is a huge mistake to procrastinate.  These situations only get harder, and yes, there are cases with MULTIPLE estate within estates.  My own personal record is six!

If you are confronted with one of these situations, or if you want to prevent such a situation, please contact me.

When I do Wills for clients, I always discuss the option of doing Living Wills and Health Care Proxies.  I consider these so important, and so fundamental to proper practice, that I offer them at no additional charge.  Here are the basics:

LIVING WILL – This is a person’s written declaration that if they are in a hopeless situation, they do not want to be kept alive artificially.  Sometimes I say to clients “This is like that Florida situation from a few years ago, where the woman was in a coma and the husband was feuding with her parents.”  For some reason, everyone seems to remember that case.  The basic forms for a living will provide for pain relief, but invasive life sustaining procedures not be undertaken. Having this all stated in writing makes it much easier for doctors, hospitals and families to know what to do…or not do.

When I state the option, most people opt for it, but not all.  I have not editorial opinion on it.  When people express a strong opinion that they want a Living Will, the sentiment is usually “If I’m hopeless pull the plug, I don’t want to suffer and I don’t want my family to suffer.”  When there is a strong opinion not to do it, it’s usually along the lines of “These things should be in G-d’s hands”.  I never argue.  My informal data suggests that when this option is suggested, people say to do a Living Will about 90% of the time.

HEALTH CARE PROXY – This is different than a Living Will, but crucially important.  A health care proxy designates someone to make health care decisions if you are not able to make the decision.  This would be a “not hopeless” situation.  My usual quote is “A health care proxy comes into play if you are in a coma, but not hopeless, and the risky ‘xyz’ procedure MIGHT help, but who will decide whether to do it?”  The health care proxy gives someone, usually a trusted family member, the responsibility to decide.

I always include the designated person’s cell phone and home #.  Hey, if we need to reach the person quickly we better be able to.  Sometimes people want to have two people have the responsibility together.  I am not a fan of this, but will do it if clients insist.  I often name one person and a successor or back-up.

Obviously, being designated a Health Care Proxy is a big responsibility, so the decision on who to designate is important.  I had some first hand experience with this, and I often relate this to my clients, to illustrate its importance.  Bottom line:  my Dad had named me his health care proxy and unfortunately ended up a a very serious medical crisis where decisions had to be made.  My step-mom and I were not in agreement on what should be done and when, but I had the health care proxy which enabled me to be clear to the doctors and the hospital that I was the one designated to make decisions.  I took the time to investigate ALL the options, and discussed them with her and other family members.  I had made a painful decision that I was comfortable with, but thankfully I did not have to actually implement it because my Dad regained consciousness, lived another two weeks, then passed peacefully (This was in 2010).  The reason I tell this story is to impart that not only did I feel I had honored my Dad’s wishes, but that in the short time he regained consciousness, I told him what had transpired.  In fact, his last words to me were “I’m proud of you”.

Health care proxies are VERY important!

When I am discussing the possible preparation of a Will, I ask a series of questions that follow a general framework.  This tends to bring all the issues to the surface in a logical way.  I respect that people often want to just “tell me what they want the Will to say”, and that very often they have put serious thought into it.  I usually then ask if they would be OK if I asked questions in my preferred order, as it tends to bring out EVERYTHING, including the things I am sure they want to tell me.  Most people are fine with this.

I call my approach the WHO, the WHAT, and the HOW.

WHO – I start with a pretty detailed family tree.  I don’t go back to the Mayflower…what I am looking for is establishing who are the “distributees”, that is to say “who would inherit if this person died without a Will?”.  As mentioned in earlier posts, this is very important because even if those people are not in the Will you have to get jurisdiction over them during probate.  All my will files start with a little family tree diagram.  I get the names, the relationships, the ages, and make note of anything pertinent the client tells me.  Of particular interest are people in the tree who are minors, or disabled, or missing, or elderly.  I make note of pertinent details about them.  During this part of the interview I usually have a sense of what is going on and who is “involved” and who isn’t.  Since the people on the tree are likely to be discussed as the interview proceeds, I can now refer to them all by name and with some clarity as to who they are.  When I have enough family information, I draw a line on my notepad and say….”This concludes the WHO portion of the program, let’s move on the the WHAT”.

WHAT – In this section I make clear that while I don’t need to know every account and asset down to the penny, I do need to know WHAT we are talking about.  I specifically want to be clear about what assets the Will will affect and what assets it won’t.  For example, Wills don’t generally change things like life insurance beneficiaries, or bank accounts with beneficiaries.  This must be looked at carefully because, and I actually say this to clients “I once did an Estate where the drafting attorney did not ask about these things, and there was a horrific result”.  In that case a man did a Will and left everything to his sister, who was his closest relative. However, his biggest asset was a retirement account where he had named a beneficiary, a girlfriend from 20 years ago where there was a bad break-up…Orders of Protection, death threats, etc.  Guess what? – the ex inherited $400K, and there is no doubt that if the drafting attorney had asked, the client would have been told to change the beneficiary. He surely thought a Will leaving “everything to my sister” would do the job.  It didn’t.  So now, I always ask

I also ask about things like title to real estate, and if it’s within NYC I check it on ACRIS (the City’s e-recording system).  Many times we find surprising things and address them.

I basically inquire about the title to any meaningful assets and make notes about it.

And then at some point I say “Now we are done with the WHAT, lets move on to the HOW, as in HOW DO YOU WANT THINGS TO TURN OUT”

HOW – At this point I ask the clients how they want things to go, what is their idea about who should get what?  It is a good idea for people to have thought about this before we speak, and most have.  An interesting question is often whether to do things in terms of dollars or in terms of percentages.  Generally the smaller bequests (if any) should be in dollars, and the broader ones (often called the “residuary bequests”) should be in percentages.  At this point I ask questions that many people have not thought of, which is a series of “what if” questions.  Things should not be left to chance, so we then get into the sometimes uncomfortable “what ifs”.  What would happen if “so and so” dies before you, which is something we ought to provide for.  I don’t take this to ridiculous extremes, but I do go pretty far into it.  Strange things happen, and as long as we are doing a Will, I do not leave these things to chance, especially if someone has a strong opinion, like “if x dies before me, I do not want y to get his share”.  I make sure this is covered.

Also very important in the HOW section is naming Executors and if applicable, Trustees.  The Executor is the person who takes care of the Estate after a person dies. They get the Will probated, marshal the assets, pay expenses and taxes, and make sure the Wills terms are carried out,  Naming an Executor is a VERY important decision.  Co-Executors are permitted and sometimes appropriate. Naming a successor Executor (another what-if) is also important.  Trustees come into play if the Will is establishing aTrust, which would usually apply for a minor or a disabled beneficiary.

Obviously, the above is just a framework.  If the discussion leads to more details about particular issues, of course we explore them.

Funny thing though, when I follow my outline and we reach the end and I ask “Is there anything else?” most of the time the answer is “Nah, we covered it, what happens next as far as preparing and signing the Will?

And so it goes.

Next post – “Living Wills & Health Care Proxies”