last will and testament - Trust and Estate Planning Law Office

The Difference Between a Living Will And Last Will And Testament

Estate planning is an essential process in which individuals make decisions regarding their asset distribution and future health care arrangements. Within the area of estate planning, there are two crucial legal documents to understand: the living will and the last will and testament. By understanding these documents, you will be better equipped to create an estate plan which accurately represents your financial desires after passing away. Below, the trust and estate planning office will explore the intricacies of a living will and a last will and testament and elaborate on the key points of each document as well as their differences.

Understanding a Living Will

A living will refers to a legal document which establishes an individual’s medical preferences in the event that they are incapable of communication or incapacitated. A living will is effective during an individual's lifetime, and is only effective in the event that you are unable to make medical decisions for yourself. This document also includes a healthcare proxy, or someone who will make medical decisions on your behalf aside from those included in your living will if you are unable to do so. A living will specifically focuses on predetermined medical directives in order to guide loved ones and medical personnel during treatment.

Key Points of a Living Will

One of the key aspects of your living will be your preference for certain medical treatments. These medical treatments may include life sustaining treatment, organ donation, resuscitation, pain management or mechanical ventilation. Your living will outlines your desires for how medical professionals will go about your treatment plan. Another essential aspect of a living will is the designation of your healthcare proxy. As stated above, your healthcare proxy will step in to make medical decisions on your behalf that you do not previously specify. Unlike a last will and testament, a living will takes effect when you are incapacitated or you are not in the state to make medical decisions. This includes neurological conditions in which an individual has a functioning brain stem but lacks cognitive function, otherwise known as a vegetative state. It also takes effect in the event of a coma and, in some states, terminal illness.

Understanding Last Will and Testament

A last will and testament is a legal document in which a testator, or the individual writing the will, outlines how they would like their assets to be distributed after their passing. Unlike a living will, a last will is only effective after death. There are multiple important decisions outlined in a last will, including the appointment of an executor, who will ensure your will is carried out and your assets are distributed accordingly. A last will is also how you can designate guardians for any minor children as well as the assets you would like to distribute and the beneficiaries who will inherit them. Asset distribution is one of the key components of a last will and testament. By writing one, you ensure that after your death, your assets are given to people of your choosing.

The Difference Between The Two

Although similar in name, these documents are drastically different, and it is important to understand the unique functions of each before planning your estate. While a living will outlines the healthcare directives and medical preferences in the event that you are incapacitated and unable to make medical decisions for yourself, a last will and testament outlines what you would like to do with your assets after your death. Another key difference between these two documents is when they take effect. A living will takes effect while you are alive and is only effective in the event that you are incapable of making your own medical decisions. A last will and testament is only effective after your death.

Understanding the distinction between a living will and last will and testament is essential to make informed decisions regarding the protection of your assets and loved ones. While a living will addresses your healthcare preferences and ensures that your choices are respected regardless of your condition, a last will and testament protects your assets and allows you to designate beneficiaries for your estate. Learning about the unique functions of these documents will provide you with the opportunity to plan your estate with clarity. Consulting with a knowledgeable estate planning attorney will provide you with peace of mind during this decision-making process. For all your estate planning needs, contact the Trust and Estate Planning Office at (718) 333–2395.

How to include children from prior marriages in a will?

When remarrying, it is a time to celebrate and be joyous of a new chapter in your life with a new family. However, most people do not think about estate planning during times of celebration. Having a blended family may make room for some unexpected challenges as you may want both families to take part in your estate plan. In the case that you have children from a previous marriage that you want in your estate plan, it may seem confusing and overwhelming to tackle.

If possible, you can leave your assets to your newly married spouse and hope that they will divide your assets among all your children. However, it is also possible that your spouse will not respect your wish. Before getting remarried, it is important to review or redo your estate plan. By doing so, it can clear up any possible future confusions.

Take Inventory of your Assets

- With your new spouse, you can take an inventory of your assets and debts. This can include your retirement plans and insurance policies. By being fully honest and open, you will allow your family to have better conversation and no possible hard feelings.

Decide Where You Want your Assets To Go To

- You can decide with your new spouse if you want to combine your assets or not before you get married again. By doing so, it can be clear to everyone on where the assets are going to and who it is going to.

Decide on what option you would like to secure your children’s inheritance

- There are multiple options to ensure that your children will get their designated share of inheritance:
  - Creating a trust specifically for your children
    - This allows you children to have exclusive and specific rights to hold and manage whatever benefits they will get from you.
  - Making your children beneficiaries of life insurance policies
    - Life insurance payouts will go to those who are listed as your beneficiaries when you pass away so that gives them a portion of the money.
  - Giving your children joint ownership of property
    - By doing this, your children will be able to have full ownership after you pass away- which also secures their portion of their share of your assets.

In a perfect world, you can simply leave your assets to your newlywed spouse but as always, the options for assuring your children allows for certainty. A mutual understanding between you and your new spouse will make it easier for the future and your marriage. It is important to talk about estate planning with your family. If you or a loved one wants more information about estate planning, contact the Law Office of Inna Fershteyn at (718) 333-2395.

How to Change a Living Trust?

With life’s ups and downs, it is natural for people to go through many changes throughout their lives. Some of these major changes in your life may make you want to change your living trust. To start, a living trust should not be mistaken for a will. The major difference between the two is that wills go into effect after death while living trusts are effective once they are signed and funded. Most people have revocable living trusts which allows for flexibility and change. However, if you have an irrevocable trust, it would be extremely difficult to make changes as they were made to be permanent and unmalleable.

As mentioned previously, there are many reasons that may lead you to make amends to your living trust. Some reasons may be:

Adding or changing beneficiaries
Getting married
Change in distribution of assets
Major beneficiary dies
Moving to another state

In addition, if the living trust is a shared trust, both parties are required to consent in writing for changes. Only one party is needed if it is decided to revoke the living will. Furthermore, if one spouse dies, the surviving spouse can only make amends to their own property and not the deceased spouse’s property.

The simplest way to make changes to your living trust is to fill out a trust amendment form. This form lets you keep the original trust active while making changes to it. In the situation that you have made changes in the past, you must indicate that these changes override any previous amendments or if you want to keep them in effect. When making these changes, be sure to refer back to your original trust and refer to the changes by which paragraph you are intending to change. This way, it will not cause any confusion and ensure the clarity of your new changes.

If you plan on making major revisions to your living will but you do not want to revoke your trust, a trust restatement is also possible. This redos your entire trust and allows it to be in effect with the new trust restatement document.

In severe cases, it can be more plausible for you to revoke your trust instead of making amendments to it. The reason for this is because if the changes are severe, adding amendments to an already established living trust may cause confusion. Oftentimes, people do not revoke their trusts since it means that all their assets from the trust will have to be transferred back into a new trust. Although it is not recommended and can be more expensive and troublesome to revoke a living trust, it is worth it considering that you would want your assets to fall into the right hands.

Changes in life are bound to happen and it is common that living trusts change with those life turning points. It is important that your assets go where you want them to. If you or a loved one needs assistance on creating trusts or any estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

When is the Best Time to Write a Will?

The thought of writing a will may seem daunting for people as it brings up a topic that no one wants to talk about: death. However, a will is necessary as it will help prevent conflict and trouble for loved ones in the future. It also allows you to decide where you want your assets, property, and more to go to after you have passed. Without it, your assets may go somewhere you don’t want them to.

As the COVID-19 pandemic gradually comes to an end, it was surveyed that 66% of Americans who had serious COVID cases were more likely to have a will. It was also found that 50% of young adults were now more likely to have a will now when compared to pre-pandemic times. After the pandemic, more people now than ever are thinking about their wills- but a life-threatening situation shouldn’t be the only time to think about writing a will. Any time is a good time, especially these five occasions below:

Occasions to write a will:

1. Turning 18

In the U.S, most states will allow those who are 18 and over to legally write a will for the first time. Why not get started and think ahead? It’s never too early to start writing a will. Even if you are just 18, a will is always available for alterations as life changes and progresses.

2. Change in marital status

Whether you get married, divorced, or separated, it comes with significant changes in financial and personal matters. These changes will influence the decisions you will have to write in your will. It is important to ask yourself if you want your spouse (or ex-spouse) to be part of your beneficiaries or not.

3. Change in financial circumstances

Factors such as starting your own business, getting a promotion, or even buying a house can drastically change your estate plan’s situation. Especially when starting a business or buying a house, it is crucial to consider who the succession of the business or inheritance of the house will go to.

4. Having children

As mentioned previously, it is common that those who have children will leave their property and assets to their children. However, people tend to forget that a will can also dictate guardianship for children who are minors if both parents are deceased.

5. Prolonged amount of time

As time goes on, family dynamics and relationships may change which will alter your estate plan as well. It is also possible that the planned executor of your will dies before you do. Even if you do already have a will, it is essential to update it after major life changes. Regardless, if you have been putting off writing up a will, there’s no better time than today.

For a will to be correctly done and valid after death, it is important to go to an attorney. By executing a valid will, the court will not have to probate the will- saving your loved ones time and trouble. If you or a loved one need assistance or more information on estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

3 Legal Documents That are Needed for Caregivers to Manage a Senior’s Healthcare

Planning for your elderly loved ones is a crucial task that guarantees their safety in preparation for the future. It is imperative that all of the documents are completed in a timely fashion so that they can be utilized when the time comes. Additionally, seniors must select trusted individuals to make decisions on their behalf once they are no longer able to do so. Due to the legality behind healthcare and medical practices the laws regarding the individuals who can receive updates on the senior are very specific. In order to partake in medical decisions and conversations with your loved one’s doctor you must have the eligible qualification that entrust you with such information. If you would like to be the one responsible for making medical decisions on the senior’s behalf, you should complete the proper documents that would grant you this authority. These documents will be supplied to you by an Elder Care attorney and you will be assisted in the task of filling them out completely. If you do not complete these documents prior to needing to make medical decisions on behalf of your loved one, then you must go to court to petition for guardianship. This is an absolute last effort that should be avoided at all costs, as it takes time away from your ability to make medical decisions for your loved one.

Document #1: Power of Attorney

A power of attorney gives an individual the right to act on your behalf. There are four types of power of attorney documents that are mostly commonly utilized. These include General Power of Attorney, which means the document comes to a close when the principal becomes incapacitated, revokes the agent for the power of attorney, or passes away.The power of attorney has the power to make medical decisions on behalf of the senior in need of care. A Durable Power of Attorney enables the agent to maintain power even once the person becomes incapacitated. This implies that they can make decisions for the senior even once the senior is not in a clear and present state of mind. A Special Power of Attorney gives the agent specific limited powers within a specific area. Lastly, a Springing Durable Power of Attorney comes into place when a specific event causes the principal to become incapacitated. This document must be prepared while the individual is still competent to ensure that the agent has the power to make all of these imperative decisions when the time comes .A Power of Attorney allows the principal to appoint a specific agent who will act on their behalf in the case that they become incapacitated. Therefore, this individual must prioritize the needs and preferences of the principal by making imperative decisions. These decisions pertain to finances, healthcare, recommending a guardian, etc. This ensures that your loved one’s wishes are met through the guarantee of financial security and effective healthcare choices when the principal becomes unable to make the decisions on their own.

Document #2: HIPAA Authorization Form

The acronym HIPAA stands for the Health Information Portability and Accountability Act. This form guarantees that an individual’s health information and records will remain private under the legal jurisdiction of the act. With the presence of this form medical professionals are unable to share any information regarding your health or status to others without legal consent in written form. However, if your name is stated in the form then the doctor has the right to inform you of the patient’s care. If your name is written in the form it implies that you are an approved family member and therefore eligible to ask any questions and receive all medical information regarding the care and status of your loved one. The individual receiving the care must sign the HIPPA form in order to give consent for family members to be involved in the medical decision process. Only the minimum information necessary will be communicated, so do not worry about all of your information being communicated. Therefore, you are greatly encouraged to complete this form to ensure that you are authorized and eligible to receive updates on your loved one’s medical status.

Document #3: Advance Healthcare Directive

This document is a perfect preparation for the foreseeable future, as it serves a similar purpose to a will document. The individual communicates their healthcare preferences in the case that they become incapacitated and cannot make decisions for themselves. This document dictates directions for the medical power of attorney to follow to ensure that the senior’s best interest is prioritized. In the case that the patient is in need of resuscitation, this document should state whether resuscitation should occur or if the patient wishes not to be resuscitated. All of the serious medical decisions concerning life support and the decision to donate organs are stated within the document to guarantee that the patient is treated in the exact manner he would have preferred if he were able to make his own decisions in the moment.Be sure to discuss all of the potential medical necessities and healthcare issues with your loves one, so that you are fully aware of their wishes and best interests. An attorney can assist you with drafting a valid Advance Healthcare Directive that will abide by your state’s laws. Take the time now to best prepare for your loved one’s future by planning for their healthcare in advance.

Although it may be difficult to come up with a way to discuss the topic with your loved ones, the conversation is definitely worth having. The best way to begin this conversation would be to state that you are interested in creating a healthcare plan for your future and would like some advice. During this process, your elderly loved ones will realize that they too are in need of Elder Care Planning. This will be the perfect moment to take note of their preferences and desires regarding the manner in which they wish to be cared for. Schedule an appointment with your local Elder Care Attorney to begin the journey of planning for a better future. The attorney will provide a detailed outline of all the steps and documents you must follow and complete. You will be guided throughout the entire process and will have all of the support necessary because growing older should not be an end to your journey, rather just a stepping stone.

For further Elder Care Planning information please contact the Law Office of Inna Fershteyn at 718-333-2395 to effectively plan for your elderly loved one’s future.