Experienced New York Estate Lawyer Helps You Avoid Potential Pitfalls of Will Planning
Personal attention is the key to meeting your legacy goals
Many people find it difficult to talk about legacy planning. But this resistance can create problems later on. An individual may have a terse discussion with an attorney who does not regularly focus on estate planning — or even download a will form online — and think that the issue is settled. The result is usually an incomplete or invalid will that does not truly address the testator’s goals or the beneficiaries’ needs. At the Cormac McEnery Law Firm, we’re here to listen. We provide a comfortable and relaxed atmosphere with the proper mix of seriousness and levity. We engage with you and learn as much as we can about your unique circumstances. Then we craft an appropriate will which, in combination with other trust instruments, fully resolves your estate planning issues.
Flawed execution or malfeasance opens a will to legal challenges
The basics of will execution are easy to accomplish, and most courts grant a presumption of validity when the will complies substantially, rather than perfectly, with those requirements. However, a challenger can persuade the court to invalidate a will in whole or in part for any of these factors:
- Lack of capacity — The testator suffered from dementia or was otherwise incapable of understanding the significance of the will or the act of signing.
- Fraud — Someone tricked the testator into signing something other than a true will.
- Compulsion or undue influence — Someone forced the testator to sign or used emotional manipulation to override the testator’s decision-making. Proof requires three elements:
- Motive —A party gained something by compelling or persuading the testator.
- Opportunity — Often a caregiver or close relative has sufficient access to the testator.
- Actual acts of compulsion or undue influence — Because a testator could freely amend a will in favor of a caregiver or close relative, a challenger must prove some act that overrode the testator’s free will and precipitated the change.
- Void for vagueness — A poorly drafted provision that is unclear about the testator’s intentions is unenforceable.
- Impossibility or illegality — A will provision that cannot be accomplished or which would be illegal to accomplish is unenforceable.
Although these issues are not unheard of, the more common problems for testators come from having a valid will that simply does not address their circumstances and those of their beneficiaries.
Understanding the limitations of the traditional last will and testament
A clearly drafted will helps your estate pass through probate quickly so your beneficiaries receive their bequests without unreasonable delays. However, a will is not necessarily the best way to transfer assets. Cash inheritances are subject to income tax even if they are not large enough to trigger estate tax. But, life insurance benefits are not taxable, so a life insurance trust is often a better way to leave a legacy. Similarly, assets that pass directly to an elderly recipient can disqualify that individual for Medicaid assistance for long-term nursing home care. Your legacy planning must anticipate the impact of your giving on the recipients and convey your assets in the most cost-effective manner. At the Cormac McEnery Law Firm, we create a custom estate plan that addresses your current need for healthcare and asset protection, your goals for succession, and the impact of your legacy on your heirs.
To avoid will pitfalls, contact an experienced estate planning attorney
A will is only good if it advances your goals for succession. At the Cormac McEnery Law Firm, we listen to your concerns and craft an estate plan that fits your circumstances. To schedule a free consultation at our offices in the City Island, Manhattan or Brooklyn Heights, call 888.368.4329 or contact us online.