Before making an estate plan in New York, it’s helpful to go through a New York-centric estate planning checklist to ensure that you don’t miss any important topic, including selecting a health care proxy, choosing a will or trust, and naming a power of attorney. You can use the checklist below to help you gather all the information you’ll need to make informed decisions about what happens to your assets and family members when you die.
Preparation
Step 1: Identify Assets
Before you sit down to create legal documents, make a list of all of your assets. This may include personal property and assets (such as vehicles, boats, retirement accounts, stocks and bonds, life insurance, cryptocurrencies, trademarks/copyrights/patents, and household items). You should also list real estate, including houses and land. If you have a share in business entities, like a family business, also include that on the list.
Don’t forget to include cryptocurrencies, NFTs, and social media accounts if you want those assets included in your estate.
Step 2: Identify Debts and Liabilities
If you have debts and liabilities, they may outlive you. It’s helpful to identify them so that your heirs and executor know how to settle the debts. Be sure to include not just personal debts, but also any business debts, which in some cases will be paid out of your personal assets. Outstanding tax debts will also need to be paid out of your estate.
Step 3: Name Beneficiaries
A “beneficiary” is the person or entity you want to inherit your property when you die. Since each person will be named in your estate planning documents (wills and trusts), it can be helpful to make a list of your beneficiaries and state which property or share of property you want that person to inherit.
Drafting Legal Documents
Step 1: Wills
You should begin by deciding whether you need a will, trust, or both. Wills and trusts provide different benefits and are often used in conjunction with each other. A will, also known as a “Last Will and Testament” is a legal document that you use when you intend to give instructions about distributing your estate after you pass away.
A will goes through probate court, but the probate process is more efficient when you have a will. If you die without a will, then your family still has to go through probate court, but the process will be long and the court will not be required to follow any wishes you had.
The signing requirements in New York include the testator (the person making the will) and two witnesses. You can find the signing instructions in Chapter 17B of the laws of New York, Section 3-2.1
There are two very important decisions you have to make when drafting your will:
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Naming an Executor: A Will appoints an Executor as the person who will handle the state on your behalf. When you die, the Executor then takes control of your assets in probate court. The person you name as Executor will distribute your assets to your beneficiaries and settle your taxes and debts. Many people make their spouse their Executor, but you should also name an alternate Executor in the event that your spouse doesn’t outlive you or isn’t willing or able to assume that role.
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Naming a Legal Guardian for Minor Children: The other main issue you must plan for is to name legal guardianship for minor children. The courts will usually give full custody to your child’s other parent if that person is still living. However, you will need to name alternate guardians just in case the person isn’t living or able to take care of the children.
Step 2: Trusts
You may also choose to create a living trust. A living trust is a document that creates a legal entity that you can transfer your assets into. If you create a “revocable” living trust, this means you can amend, alter, or even revoke the trust while you are living. When making a living trust, you must appoint a Trustee to manage the trust’s assets. With a revocable trust, the person making the trust normally names themselves as the Trustee. However, you’ll still need to name a Trustee to take over after your death. This person is known as the “successor trustee.”
Beneficiaries named in the Trust document will receive the trust assets or property when you die, as provided by the terms of the Trust. Unlike a will, a trust doesn't go through probate when you die. It also does not become public record, whereas a will does become public.
It’s important to follow the signing instructions for making a trust. According to Chapter 17B, Estates, Powers & Trusts Section 7-1.17, you’ll need to sign the trustee along with two witnesses. Alternatively, you can follow the requirements that apply to a conveyance of real property. This includes getting the trust signed by a justice of the supreme court, an official examiner of title, an official referee, or a notary public.
Step 3: Health Care Proxy
You should strongly consider executing a document creating a Health Care Proxy. A “proxy” in this context is a person who you appoint to be your health care agent - the person who can make medical care decisions for you while you are still alive. This doesn’t mean you give up control over your day to day health. Instead, the Health Care Proxy only gains power if you ever become incapacitated. You’re only incapacitated if you become incapable of making important medical decisions for yourself, or if you are incapable of communicating decisions for yourself.
When selecting a Health Care Proxy, you should choose someone who knows your wishes and values. The legal document, which may also be referred to as a “medical power of attorney”, spells out your instructions for what kind of medical care you want in certain situations. The agent you appoint will have to follow your guidance. If you want to place limits on your proxy’s ability to make certain decisions, you can do so in the document.
Before appointing someone as your proxy, you should talk with them about whether they are willing and able to serve as your agent. You can find the signing requirements for Health Care Proxies in Chapter 45, Article 29 of the laws of New York, Section 2981.
Step 4: Durable (Financial) Power of Attorney
You may also choose to sign a Power of Attorney to make financial decisions on their behalf. A financial agent will immediately take control of your financial affairs as soon as the document is legally signed. This makes it very different from the Health Care Proxy, which only kicks in when you are incapacitated. A Power of Attorney is valid as soon as you sign it. A Durable Power of Attorney is used to make sure a person’s finances are taken care of when they become mentally or physically incapacitated. You should only use a Durable Power of Attorney when it is absolutely necessary because the financial agent will have all the power over your estate.
To validly execute a Durable Power of Attorney in New York, you must sign the document and it must be acknowledged in the same way as a conveyance of real property. This means you’ll need a justice of the supreme court, an official examiner of title, an official referee, or a notary public to sign the POA. The requirements for establishing a Durable Power of Attorney are found in Chapter 24A of the laws of New York, General Obligations, Section 501501B.
Step 6: Store the Documents Securely
To complete the process, you need to make sure you’ve kept copies of all documents and provided them to people who should have them, such as your attorney, agent, executor, or spouse. It’s best to store physical copies in a fire and waterproof safe. You can also opt to store them in the cloud with FastWill.
