There are certain types of wills, or aspects of wills, that are not suited for every purpose.  A “pour over” will is just such a document. These wills are only necessary for people who have a living trust already established. If you don’t have a living trust, or want more information about them and why they may be of benefit to you, talk to your estate planning attorney.

Function: The idea of a pour over will is to transfer all of your property  into a trust that was created while you were alive. The trust, known as a living trust or an inter vivos trust, already contained some, if not all, of your property. In the event that some of your property is not transferred to the trust before you die, the pour over will does this for you as a catch-all.

Use: Like all wills, a pour over will must meet the creation requirements under state law. Unlike other wills, however, pour over wills usually only name a single beneficiary: the testator’s living trust. Because the living trust already controls much of the testator’s former property, the pour over will  essentially takes the rest of it and transfers it to the trust as well. However, whatever is left after the testator dies must go through the probate process before the trust can own it. This differs from the property first placed in trust, as trusts do not need to be probated before they are effective.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Question 1: What is a codicil? A codicil is an amendment to a will. It’s a document you make after you’ve executed a will that changes, adds to, subtracts from, or otherwise modifies the terms of that will. You can, for example, use a codicil to modify the will you wrote before you got married or before you had a new child.

Question 2:  Do you have to register a codicil? No. Just like your will, no state requires that you “register” or otherwise file your codicil with a state government agency. After you die, your codicil will have to be filed with the court and will become part of the public record, but you do not have to file it before then. All you have to do is make sure the codicil meets the state requirements for it to be judged valid by a court. These requirements are the same those for creating a will, meaning you must put it in writing, sign it and have it signed by witnesses.

Question 3: Do you have to use a codicil to change your will? No. A codicil is, like a will itself, completely optional. There is no situation that ever requires you to make a codicil, though they may be useful in a number of circumstances. As an alternative to making a codicil, you may also draft a new will and revoke the previous one. Regardless of your choice, it’s best to talk to an experienced estate planning attorney for advice about what best suits your needs.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Type 1: Revocation by Act. A revocation by act is when you take a specific action to revoke a previous will you’ve written. The most common way to do this is to write a new will that contains a clause that specifically revokes the old will. You may also physically destroy a will to revoke it, such as by burning it or ripping it up.

Type 2: Partial Revocation. A partial revocation is usually carried out by creating either a new will or a codicil that states part of the old will is no longer valid. Many states do not allow for a partial revocation by physical act, so simply crossing out the portions of your will that you no longer wish to apply may not be enough to revoke that part.

Type 3: Revocation by Presumption. A person who makes a will and later dies, leaving no evidence of the will for anyone to find, may have his or her will revoked by presumption. The presumption is that a testator knows the will is important and if it is not easily found, the testator must have destroyed it before he or she died.

Type 4: Revocation by Operation of Law. Most states have laws that automatically revoke portions of your will in certain situations. For example, if you get divorced or have your marriage annulled, any portion of your will that refers to your spouse, or his or her relatives, is often automatically revoked.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Issue 1: Making a Will. If you have an estate plan that is largely based on one or more trusts, you still need to make a Will so you can select your choice for your child’s guardian. While you can still use trusts and name the child as beneficiary, the guardian nomination must be specifically stated in your Will. If you don’t yet have a Will, you need to get started right away.

Issue 2: A guardian has to be qualified. A legal guardian in New York must be at least 18 years old and must either be citizen or a legal resident of the United States. Beyond that, the person is under no obligation to accept the nomination, meaning he or she can refuse to serve as guardian. Because of this, you should make sure that you ask the potential guardian about his or her willingness to serve. You should also name a pair of alternates in your Will in case the other choices cannot or will not serve.

Issue 3: A court will make the final decision. After nominating the guardian in your Will, a judge will make the determination about who becomes your child’s guardian. Although the court will give your choice a lot of consideration, it will not appoint someone who it believes will not serve your child’s best interests. Once the court makes its decision, it gives the guardian “letters of guardianship” that establish his or her guardianship rights.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

A quick internet search will reveal any number of online will preparation aids that claim they can help you make your own will cheaper and faster than you could if you hired an attorney. They are correct. Making your own will using a software kit or do-it-yourself guide will be much cheaper and faster than it would be if you go through the process of hiring a lawyer to help you do it. But faster and cheaper doesn’t mean better. Here’s why.

Reason 1: The software is out of date. The law is not set in stone. It changes every year, and not just with new legislation but also because of new court decisions. A lawyer has to keep track of these changes and make sure he or she adjusts his advice to match. Software may be updated, but there is no guarantee it is up-to-date.

Reason 2: The software is wrong or incomplete. Creating a will to meet state legal minimums is fine, but there is more to a will that what the law requires. If you leave out key clauses and specific provisions that aren’t required under state statutes, and may not be present in will software, you can cause your estate numerous problems when the will is probated.

Reason 3: It isn’t legal advice. DIY guides cannot give you advice. Even assuming your will creation software is correct about everything, that doesn’t mean you should make the will you want to make. Your lawyer can tell you what you can and should do to get the most benefit under the law.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

When it comes to estate planning, the Internet is both a wonderful resource and a significant hazard. There is a lot on the Internet, and not all of it is useful, helpful or even correct. While you should take the time to use the Internet to your advantage, you shouldn’t solely rely on it, or use it as a substitute for the advice that only an experienced attorney can provide.

Benefit: Education. The Internet is home to more information than any law library in the world. Your state’s laws are all probably online, allowing you to review them with a few keystrokes and mouse clicks. You can also find some excellent guides that walk you though various estate planning topics and make often confusing legal terminology easy to understand.

Danger: False confidence. The corollary to all the information available is that it can provide you a sense that you know everything you need to know. Yes, you can learn a lot on the Internet, but that doesn’t make what you learn accurate. It also doesn’t make what you learn complete. It takes attorneys years of training and practical experience to learn all the ins and outs of estate planning, and they are constantly keeping track of all the changes that you probably aren’t aware of and would have a hard time finding out about.

In the end, while you can use Internet resources to be more comfortable with estate planning and even begin the planning process on your own, you should, at the very least, bring your work to an attorney for review. You’ll be glad you did.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

About half of the population has no kind of estate plan. This means they haven’t created anything from a last will and testament, to a trust for their children, or an advance directive that sets out their health care wishes. Why not? There are numerous reasons, but for many people, the reason they haven’t started any estate planning efforts comes down to very personal and often difficult to discuss reasons.

Reason 1: You find it boring, or worse, hard to understand. Estate planning, at it’s most basic level, involves confronting our own limitations. One of these limits is our ability to sit through tedious legal proceedings and read about or learn about rather dry legal concepts. This is a challenge even to the most experienced attorney, much less the average person with no legal background. Luckily, you don’t have to understand it. All you have to do is find someone who does, such as a good lawyer, so he or she can walk you through it and answer your questions.

Reason 2: It scares you. This is probably the biggest hurdle most people face when confronting estate planning. The thought of our own mortality can be so anathema to us that we won’t think about it or talk about it because it is too uncomfortable. This is a common feeling, but when it stops us from planning, it becomes a burden. Talk about your concerns with your family, religious leader, counselor or a close friend so you can become more comfortable with it and get over your hesitation.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Mistake 1: Never giving it any thought. A lot of people don’t have any kind of estate plan because they assume that they either don’t need one or that they don’t have enough property for an estate plan to be cost effective. Even if this is true, your property isn’t the only issue your estate plan covers. It also encompasses your medical care should you get sick or injured, something everyone may one day face.

Mistake 2: Doing it yourself. While some self-help aids and DIY materials are useful, they are not a substitute for the advice of a good lawyer.  A good self-help guide can get you started, but only a lawyer will be able to give you personal advice about not only what you can do, but also what a person in your situation should do.

Mistake 3: Letting your plan atrophy.  A good estate plan is like a machine, you have to keep it maintained and inspected regularly to keep it in top shape. Don’t fall into the trap of creating an estate plan and then think that all your work is finished. You’ll want to regularly review and modify your plan to get the most benefit from it.

Mistake 4: Not giving gifts now. One easy way to avoid estate taxes is to make gifts of your property while you are still alive. A properly structured estate plan can allow you to give gifts now and enjoy the feeling of knowing you’ve made other people happy.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Why doesn’t an executor receive any compensation for jointly owned property? The answer is simple. An executor’s duties are to administer your estate pursuant to your written will or pursuant to New York’s intestacy laws. Your jointly owned assets do not pass under your will, and by operation of state law, they pass to surviving joint tenants or owners and are not subject to probate. The total commission an executor can receive depends on the value of your estate, reasonable expenses incurred and the total bequests. New York law incorporates a statutory rate schedule whereby an executor receives a percentage commission for what he pays out.

In other words, your will cannot control who inherits your jointly owned property. Instead, for jointly owned real property, your written property deed controls who owns your property when you pass away.  According to New York property laws, by operation of law, jointly owned real property with rights of survivorship pass to surviving owners. If you owned your real property with one other owner, then upon your death, your property passes to the surviving joint owner. Similarly, with joint bank accounts, joint account holders inherit the remaining assets within a joint account at one joint owner’s death.

Your probate estate does not include other types of personal property, including certain types of investment property. If you owned a life insurance policy, your named beneficiaries would receive your life insurance payout or proceeds when you die, and by operation of law, your written policy controls who will receive your life insurance proceeds.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Typically, executors are entitled to receive reasonable monetary compensation reimbursing them for their time and efforts. In New York, executors customarily receive a commission-based compensation, and their total commissions depend on the value of the assets they are charged with administering. Often, decedents will name trusted friends or family members to serve as executors of their estates. Executors can waive their compensation, but this typically only occurs with family members. The person you select to oversee your will should be familiar with your financial situation and someone you trust. You can also select a business or institution to serve as your executor and this may be a good choice since the business may have extensive experience in this role. You can also name an alternate executor to serve as the responsible adult or institution in case your primary selection is unavailable or unwilling to serve.

An executor’s commission depends on the total value of your probate estate. Your probate estate includes your real and personal property, but it does not include jointly owned real or personal property. Your probate estate also excludes your specific bequests that you leave your heirs or descendants. As such, an executor’s commission usually includes only your non-jointly owned estate property and excludes bequests or legacies. In the next post, we’ll address why an executor’s commission for administering a decedent’s will does not include compensation for jointly owned property.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.