It is important for you to periodically review existing estate planning documents to ensure such documents reflect your current wishes. However, executing estate planning documents is only the start of the planning process. Developing an estate planning “toolbox” that includes legal documents and practical information will ensure that your family and friends have the necessary information to carry out your wishes upon disability or death.
The information below provides a summary of basic estate planning documents you should execute during life. Additional estate planning documents, such as revocable or irrevocable trusts, may be appropriate in specific planning situations, but are not discussed below. The final section includes suggestions to ensure that your estate planning toolbox is complete.
LAST WILL AND TESTAMENT
The Last Will and Testament is a document that directs the distribution of probate assets upon the testator’s (the person who has made the Will) death. Probate assets are assets owned by the testator (alone, not jointly), such as bank or investment accounts, real estate, and closely held stock that do not pass by beneficiary designation. The individual nominated as the executor collects the testator’s assets and distributes them pursuant to the terms of the Will.
Beneficiary Designations: Many assets, such as annuities, retirement accounts, and life insurance policies, are distributed after the account owner’s death pursuant to a beneficiary designation, which is in a form required by, and filed with, the applicable institution. It is important to review beneficiary designations to ensure that they are consistent with the account owner’s wishes. This is especially important in light of recent changes to federal law related to qualified retirement accounts (such as 401(k)s and IRAs).
Transfer on Death (TOD) and In Trust For (ITF) Designations: Investment accounts can be transferred on death via a TOD designation, and bank accounts can be transferred on death via an ITF designation. Assets with TOD or ITF designations will pass automatically upon the owner’s death to the named beneficiaries and not pursuant to the terms of the Will.
Joint Assets: Bank and investment accounts and real estate are frequently co-owned with another individual. In some cases, these assets are owned as joint tenants with right of survivorship. Assets titled in this manner pass automatically to the surviving owner. In other cases, these assets are owned as tenants in common. The ownership share of each tenant in common is treated as a probate asset in his or her estate.
DISABILITY PLANNING DOCUMENTS
Health Care Proxy: An individual (“principal”) may execute a Health Care Proxy appointing another individual (“agent”) to make health care decisions for the principal in the event that he or she is unable to make health care decisions for himself or herself. If the principal wants the agent to have authority regarding life-sustaining treatment, the authority must be expressly stated in the Health Care Proxy. The principal may also express his or her wishes as to organ and tissue donation within the Health Care Proxy.
Living Will: The Living Will provides the agent under the Health Care Proxy with guidance about the principal’s preferences for health care treatment. The preferences may include certain treatments or therapies and may provide under what specified circumstances the principal wishes to refuse life-sustaining treatment.
Power of Attorney: A principal may execute a Power of Attorney appointing an agent to attend to financial transactions on the principal’s behalf. The principal can grant limited powers or may provide the agent with the fullest extent of powers under the law. Unless expressly stated in the instrument, the agent may act even while the principal has capacity.
Statutory Gifts Rider: A Statutory Gifts Rider is a rider to the Power of Attorney that authorizes the agent to make gifts of assets in excess of $500. The individuals or entities that can receive gifts, and the circumstances under which the gifts may be given, can be specified in the Rider. Most frequently, gifts are made for estate tax and Medicaid planning purposes.
DISPOSITION OF REMAINS/PREPAID FUNERAL ARRANGEMENTS/DONATION OF THE BODY
New York State law allows the appointment of an agent who will have the right to control the disposition of the principal’s remains upon death. This document is especially important if there are no pre-arrangements and the principal would like to be cremated because, under New York State law, family members will otherwise need to agree to cremation in writing. This may have practical implications if such individuals are not readily available to sign a consent or are not able to be located.
Also, the principal can arrange the donation of his or her body for medical or scientific research through various entities. The donee institution should be contacted during life, as most institutions require lifetime agreements for proper donation.
Funeral arrangements can be prepaid and burial plots can be purchased prior to death. While the estate is responsible for payment of funeral expenses, prepaid arrangements can lessen the pressure on family members to pay funeral expenses if there is a delay in collecting the decedent’s estate assets.
New York State law was updated in 2016 to address the collection and distribution of digital assets, and the administration of digital accounts during life and upon death. Digital assets such as digital photos, computer files, and digital currency must be collected after the decedent’s death like any other tangible asset. Most entities are unwilling to give an individual, other than the owner, access to such digital assets, access to digital devices (that are password-protected), and access via the owner’s usernames and passwords to digital accounts (such as social media, e-mail, online blogs, and photo storage), unless the owner’s Power of Attorney (during life) or Will (after death) gives the owner’s agent or executor specific powers. In addition, it may be a violation of federal law for an individual other than the owner to access digital accounts unless expressly authorized by a legal document such as a Power of Attorney or Will.
If a Will or Power of Attorney was updated prior to 2016, and the testator or principal has significant digital assets such as photos, digital currency or an online business, or digital accounts, it is prudent to update such documents to give his or her agent and executor powers over digital assets. The testator or principal may also consider naming “legacy” beneficiaries, which many social media websites now allow. This permits the beneficiaries access to the individual’s digital accounts upon proof of the owner’s death.
BUILDING THE TOOLBOX
To ensure that an individual’s executor, family and friends are able to execute his or her plans as smoothly as possible, the following should be considered:
Asset List: Develop a spreadsheet or list of assets and information that includes, to name a few:
Digital Account List: Some individuals have started using password programs that collect usernames and passwords for all of his or her digital accounts. Other individuals prefer to use paper lists or spreadsheets to hold this information. Gathering this information and storing it in a secure fashion will assist an agent or executor in marshalling and administering important online accounts and digital assets.
List of Contacts: Develop a list of the professionals, with contact information, who have assisted in financial planning and estate planning, including accountants, financial advisers, attorneys and insurance agents.
Putting Together the Toolbox/Location: Once an individual has prepared the asset, digital account and contact lists, these lists, together with copies of his or her estate planning documents, should be stored in a safe place that can be accessed when needed. The individual should consider telling a trusted professional, his or her spouse or other family member, or his or her nominated executor, where the information and documents are located.
Signing Rules in Light of COVID-19
Execution of estate planning documents and proper social distancing may seem mutually exclusive. However, New York State Executive Orders were signed, which authorize remote execution ceremonies in which witnesses, a notary public and the signing party can be in separate locations, virtually meeting to execute estate planning documents. The Executive Orders are currently set to expire on May 7, 2020.