Before meeting with your estate planning attorney for your initial consultation, you should prepare some documents and information for your attorney. This will help her make the best use of your time during the meeting. Some ways to prepare are as follows:
Prepare a list of questions to ask your attorney. Consider the following topics:
Ask your attorney about her fees. Does she charge a flat fee or will she bill you at an hourly rate? What is her flat fee or hourly rate?
Ask your attorney which documents would best meet your needs. Discuss the state and federal estate tax and whether you would likely be liable for estate tax. If your estate falls above the state and/or federal estate tax exemption amount, discuss what planning techniques and vehicles would eliminate or greatly reduce your estate tax liability.
Ask your attorney if she will provide you with any other documents, such as a Power of Attorney or advance directives.
Complete the questionnaire provided to you by your attorney.
Do your best to answer all questions on the questionnaire, but do not stress if you do not know all of the answers.
If your attorney did not send you a questionnaire, make a list of the names and contact information of your spouse and children and of the individuals you would like to name as fiduciaries and beneficiaries of your will. Also provide a list of all property you own and the approximate value of each property. Make a list of all debts and their amounts, as well.
Take time to consider which individuals you trust to manage your assets or make important health care decisions on your behalf. These are the individuals you should name as fiduciaries and agents in your documents. You do not have to name the same individuals in all of your documents, but you may if you wish. For example, you may want to name your spouse as executor under your Will and as agent under your Power of Attorney, knowing that he or she can make sound financial decisions, but name your daughter as agent under your Health Care Proxy, believing that she would be more likely to make health care decisions in accordance with your wishes.
Collect copies of all your previously executed documents, if any.
If you have previously executed a Will and any advance directives or other directives, such as a Health Care Proxy or Power of Attorney, gather any originals and copies of such documents to provide to your attorney. You may also wish to prepare notes on how you would like to modify your old documents.
In addition, gather any documents that may show that you are obligated to support another individual or that you have waived your rights to benefit from another individual’s estate, including, for example, a prenuptial agreement or divorce agreement.
Collect any documents that show ownership of your assets.
Gather all documents that provide your attorney with a complete picture of your assets. Such documents may include any deeds to real property you own, current bank statements for your bank accounts, and current statements regarding any stock portfolios.
Create a detailed family tree.
You should provide a family tree with the names and relationships of all of your relatives, beginning with your spouse and children, if any, and extending as far as your first cousins, once removed. Make sure to provide the full name, home address, and telephone number of each relative. In addition, indicate whether each relative is still living. Provide the dates of death of any predeceased relatives.
If you are missing the names or contact information of any of your relatives, you may want to contact a someone who may have that information. If you have reached out to your contacts and are still missing some information, you should provide your attorney with the contact information of a few friends or relatives who may have such information.
This step is important because when your executor commences your probate proceeding, he must give notice to all persons who have an interest in the proceeding, usually by personal delivery or by mail. When an individual dies intestate, meaning without a will, the person commencing the administration proceeding must give notice to all of the decedent’s distributees. Distributees are those individuals who are entitled to share in the intestate decedent’s estate. Section 4-1.1 of the Estates, Powers and Trusts Law provides a hierarchy of those individuals who are entitled to share in an intestate decedent’s estate. For example, if the decedent died survived by a spouse and children, only the spouse and children are entitled to share in the decedent’s estate. This is true whether or not other relatives of the decedent were alive at the time of the decedent’s estate. If the decedent died survived by children and no spouse, only the children are entitled to share in the decedent’s estate. The hierarchy continues from there and finishes with first cousins, once removed.
When an individual dies testate, meaning with a will, the person commencing the probate proceeding is also required to give notice to all of the decedent’s distributees (those who would have been entitled to share in the decedent’s estate had he died without a will), even though those distributees may or may not be the same individuals as those named as beneficiaries under the decedent’s will. The distributees must be given notice of the probate proceeding so that they may contest the will if they wish to do so. If a distributee contests the will and the court decides not to probate the will, the decedent’s estate will be distributed in accordance with the laws of intestacy, meaning that the distributees of the decedent’s estate, not the beneficiaries of the will, will share in the decedent’s estate.
If the will is probated by the court, only the beneficiaries of the will (along with any creditors of the estate) will benefit from the decedent’s estate. Any distributees that were not named as beneficiaries of the decedent’s will are not entitled to any of the decedent’s assets.
If your fiduciary is missing the names or contact information of any of your distributees at the time of your death, he and his attorneys will have to spend time and the estate’s money looking for your distributees. This may include online research and phone calls, emails, and letters to your relatives and friends. This task alone can cost the estate thousands of dollars, especially where there are multiple unknown distributees or known distributees with unknown contact information. Attorneys with missing information are often forced to prepare Affirmations of Due Diligence, in which they explain their efforts to find the decedent’s missing or unknown distributees. If the court accepts the Affirmation, it will grant the fiduciary the authority to give the unknown distributees notice by publication, which is expensive and time-consuming and causes a delay in the administration of your estate.
Please feel free to contact me for all of your tax planning, estate planning, and estate administration needs.
Additional resources provided by the author
For more information, please contact probate and estate planning attorney Regina Kiperman:
Or visit her at her new location:
80 Maiden Lane
New York, NY 10038
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