December 20

Emergency estate planning: I’m going on vacation, do I have time for a Will?

One of the most common telephone calls I receive is from a frantic parent who has just organized their first vacation away from their children, yet have failed to put in place any estate planning documents in case of their early demise. Every time they are going away in 2 weeks. Every. Time.

I admit that flying on a plane is safer than driving in your car, and that logic therefore dictates that when a parent hops on their motorcycle or enters their car I should actually receive the call then, but most people contemplating their eventual demise fail to use the left side of their brain. Thus, if it takes the distant potential of a tragic, explosive, fiery plane crash for someone to come in and finally do their Last Will and Testament, I’m not going to argue anymore. Come in quickly! The explosion is going to be a sight to see! Don’t forget to kiss your kids before you leave and tell them you love them.

What to do?

There are two options my office now provides and here they are:

1) Emergency Planning. I will expedite the initial consultation along with the drafting of all documents. We will name a guardian of the children in your Last Will and Testament, draft a Power of Attorney for each parent and create Health Care Proxies/Living Will as well. We will complete everything in 3-7 days and it will be twice the price of my regular basic estate planning package.

2) Standby Guardianship Drafting and Signing. This is not a perfect remedy, but it’s something. When a parent designates a standby guardian, they are recommending that person to be the child’s guardian in the future. If the parent becomes debilitated, incapacitated or dies, the standby guardian may petition the court within 60 days and apply for permanent appointment.

The takeaway is very simple here. First, you are not going to die in a plane crash and should just get your planning taken care of early on. Second, many people are not willing to pay double to expedite the completion of their Wills, so if you are going away and need something, we’ll draft the standby guardianship and complete your Wills when you come back.

Take a breath and enjoy your trip. You deserve it.

Also if someone you know has died in a plane crash and you’re reading this I apologize for making it part of this story. I know people die on planes. It’s terrible. It’s also terrible when people don’t plan correctly for their death and their children or estate have to pay the price. I’m passionate about people’s wishes actually coming to fruition when they die. It’s a weird passion.

March 19

Can a copy of a will be probated in NY?

Yes, in New York it is possible for a copy of an original, executed will to be admitted into probate. It is even possible for a draft of a will to be admitted or even a will that is non-existent where the two witnesses clearly remember the provisions. When an original will is not accessible SCPA §1407 designates that a lost or destroyed may be admitted for probate only if:

Probating a Copy of a Will in NY

  1. It is established that the will has not been revoked;
  2. Execution of the will is proved in the matter required for the probate of an existed will; and
  3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or be a copy or draft of the will proved to be true and complete.

The way this usually comes about is that after the deceased person passes, a family member may find or have been given a copy of the decedent’s will. The family member may take it to an attorney. The attorney may ask a few questions and then may find out there was a safe deposit box and that the decedent may have placed the original will in that box. If the family is lucky, sometimes a Petition to Open a Safe Deposit Box  is a simple resolution to this problem. Now they can begin probate in NY Surrogates Court. I’ve had cases where the safe deposit box was full of money with no will, plain empty, or even worse yet, closed out a year before the decedent’s death.

So now, usually the proposed executor is holding on to this copy of the decedent’s will, feeling stressed, begging the question: now what? Well, now it’s time to get to work. To even begin an action under SCPA 1407 one will need the two witnesses who originally witnessed the will (and who distinctly and clearly remember the provisions), a copy of the will or a draft of the will. Then the proponent of the will will have to rebut the presumption that when a will is lost, the decedent destroyed the will for the purpose of revoking it. (See In re Staiger, 243 N.Y. 468 and In re Kennedy’s Will, 167 NY 163 quoted in Matter of Massimo 2015 NY Slip Op 51927(U)). At this point each case becomes highly fact specific. I hate to end the exciting ride into lost wills, but to prevent going through the incredible gamut of possibilities – this is when it’s time to call an estate attorney with experience in this situation.

February 10

Opening a safe deposit box in NY after someone dies

Many times after a person has died, and before many probate or administration proceedings, a family or individual must inventory a decedent’s safe deposit box. It is a precursor to many proceedings in Surrogate’s Court in NY and can help expedite finding the decedent’s last will and testament and/or previously unknown assets. In New York Surrogate Courts the Application, and Certified Order will run the petitioner a filing fee of twenty six dollars ($26) total.

The Surrogate’s Court Procedure Act 2003, found here, allows for a interested party to open a safe deposit to look for an original will, burial plot deed and life insurance policies. All other items would be inventoried, but kept in the box. A court order will provide strict instructions for what to do with an original will, burial plot deed and any found life insurance policies. It will then the responsibility of the bank manager to make sure that the order is followed.

Some bank managers are unfamiliar with this process and will initially be reluctant to open the box, or will inevitably delay because of this lack of familiarity. I have found that a call from an attorney with a court order in hand helps to expedite this process tremendously. There have been noted cases where banks flat out refuse, but a court order is a court order. Remember that. Because a bank manager is nervous or ignorant to SCPA 2003, it does not restrict your right to inventory the safe deposit box.

September 9

Using a NY MOLST form for End of Life Decisions

End of life care is never easy to talk about, but it is one of the most important and overlooked parts of any true estate plan.

NY MOLST form

All of my clients who come in “for a will” always walk out with a health care proxy and a living will as well. A health care proxy designates an agent to make decisions on behalf of the principal, or usually at that time, the patient, after two physicians concur that the patient lacks medical decision-making capacity. A living will states the client’s wishes to the agent so that the agent will act in accordance with them.

New York has a little known form known as the MOLST form when it comes to a seriously ill person who may die in the next year. This is not a form an attorney can fill out for a client, only something we as attorneys can push a client to fill out with their doctor. In my opinion it is a mandatory form to help guarantee that a person’s wishes are fulfilled as some of the most trying times lay before them. As long as this person has the ability to make medical decisions regarding life sustaining treatment, a MOLST form will list exactly what they want and do not want done to them: resuscitation, intubation, mechanical ventilation, hospitalization. It has advanced to the point where the form has gone electronic, found at www.NYSeMOLSTregistry.com, so that it can be easily accessed.

There are no lawyer secrets here, in fact I wish this form was not such a secret at all. When someone is entering a time where palliative care is being considered or is in the near future start reading about the MOLST document here and you can even bring the document into your doctor’s office, if she hasn’t heard of it, found here.

The two best aspects about the MOLST form that jump out at me are one,  it cannot be over-riden by a health care agent’s sole wishes. This helps guarantee a patient’s wishes – this is paramount when it comes to end of life decisions. Secondly, and equally as important, it eases the burden of the family around the patient. In those two weeks when life is incredibly hard for everyone a simple piece of paper shoulders the burden of the hardest decisions.

I’m happy to answer any questions that I can about this topic because I truly believe in the importance of it.