Frequently Asked Questions about Estate Planning Law

Wills and trusts are estate planning tools that dictate what happens to your assets.  One key difference between the two is that a will must be probated, or approved by the county surrogate's court, in order for the directions to be executed.  A trust is active upon creation and functions as soon as it is funded.  Funding a trust means transferring assets to the trust.  Trusts typically avoid the probate process.

Probate is the process of proving that a will is valid, and is the last will and testament of the decedent (the person who died).  One the Court is convinced that a will is acceptable, the Executor named in the will is appointed to "execute" the wishes of the person who died.  That includes distributing known assets, paying creditors, and filing any final tax returns required.

There are several important healthcare-related documents every person age 18 and over should have in place.  The first is a Living Will, which sets forth specific healthcare instructions in the event you are unable to express or make decisions for yourself.  A Healthcare Proxy designates another person to stand in for you and make healthcare decisions.  A HIPAA release allows healthcare information to be shared with medical providers in the event of an emergency.

Anyone over the age of 18 should consider an estate plan.  For those with no heirs or assets, basic healthcare forms and powers of attorney should be put in place to ensure their instructions are followed in the event of incapacity.  For those with assets, estate planning ensures that property is distributed to specified people/entities.  And for those with loved ones, planning serves the additional purposes of caring for those loved ones and limiting conflict after death, as final wishes are committed to a signed writing.