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Wills & Trusts

Can I change my Will?

What is a Living Trust?

Why would I have a Living Trust?

Does my trust go through probate?

Does a trust have the same witness formalities as a will?

What is a durable power of attorney?

Why would I want to give someone authority over my assets?

Why would I want to give someone authority over my assets?

What if I die without a Will?

If my family is going to inherit my assets then why should I still use a Will?

Does a Will control where all of my assets go?

What happens to my other assets?

Does a Will avoid probate?

Do I need a lawyer to prepare a Will?

What are the signature requirements for a valid Will?





Q: Can I change my Will?

A Will can be changed; however, to do so requires that you sign an amendment to your Will (known as a codicil) with the same witness requirements as signing your original Will.


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Q: What is a Living Trust?

A Trust is a contract between a person who is creating the arrangement and the person who has been named as the trustee. Typically, this type of arrangement is written and stipulates the rules and regulations the creator feels is important for the particular circumstances.


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Q: Why would I have a Living Trust?

Living trusts can be used for a variety of reasons such as for the protection of assets for minor children, minimization of estate taxes and controlling assets after the death of the creator.


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Q: Does my trust go through probate?

A Living Trust is specifically designed so that it does not pass under the control of the probate court. If properly drafted, the trust and all assets the trust controls at the time of the creator's death, does not pass through the probate court.


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Q: Does a trust have the same witness formalities as a will?

Under New York law, a trust is valid if signed by the creator and by the trustee and either witnessed by two disinterested adults or acknowledged before a notary public.


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Q: What is a durable power of attorney?

A durable power of attorney is a legal document designed to provide another person with legal authority over your financial affairs; typically when one becomes disabled.


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Q: Why would I want to give someone authority over my assets?

Both single and married people very often will have assets in their name alone or have assets which mandate they be the signatories. If the owner of the account became disabled, no other person would have access to those assets. The durable power of attorney provides a cost-effective means for a family member or friend to take charge of financial affairs in the event of disability.


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Q: Why would I want to give someone authority over my assets?

Both single and married people very often will have assets in their name alone or have assets which mandate they be the signatories. If the owner of the account became disabled, no other person would have access to those assets. The durable power of attorney provides a cost-effective means for a family member or friend to take charge of financial affairs in the event of disability.


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Q: What if I die without a Will?

If a person passes away without a Will, it is necessary that we look to the law in your state to determine which people are to inherit the decedent's assets. Put simply, the Sstate determines how your estate will be divided among your spouse, parents, children, brothers, sisters, etc.


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Q: If my family is going to inherit my assets then why should I still use a Will?

The effect of not having a Will is that there will be substantially greater probate court involvement in the administration of the estate as we are relying on the state law to determine who will inherit. In the most extreme of circumstances, should you pass away without a Will and have no living heirs surviving you, then the assets will pass to the state.


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Q: Does a Will control where all of my assets go?

Your Will only controls assets which are in your name alone at the time of death.


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Q: What happens to my other assets?

Jointly-owned assets (such as a residence owned jointly by husband and wife or a bank account owned jointly by a mother and child) do not pass through your Will. In addition, assets which have a contract beneficiary (such as life insurance, individual retirement accounts and retirement plans) do not pass through your Will.


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Q: Does a Will avoid probate?

Probate court involvement in your affairs is required any time a person passes away with assets in their name alone. In such cases, it is necessary that the probate court become involved to unfreeze the assets which became frozen at the time of death. Through proper planning, the involvement of the probate court can be minimized or avoided completely at the time of death.


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Q: Do I need a lawyer to prepare a Will?

It is not a legal requirement that you obtain legal counsel to prepare a Will. Volumes of case law have been written about wills which have been prepared but improperly signed or witnessed.


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Q: What are the signature requirements for a valid Will?

Under New York law, it is necessary that two individuals witnessed the signing of your Will. Failure to adhere to these requirements can invalidate the Will.


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The Law Office of Martin Hersh, Esq. assists clients with Elder Law & Estate Planning needs in Liberty, Middletown, Newburgh, Goshen, Kingston, and Wurtsboro, and just about every town or village within Sullivan County, Orange County and Ulster Counties in New York State.

The material presented on this site is included with the understanding and agreement that the Law Office of Martin Hersh is not engaged in rendering legal or other professional services by posting said material. The services of a competent professional should be sought if legal or other specific expert assistance is required.



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