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Are You In Good Legal Health?

By Mary L. Rhodes, Esq.

Most people would admit that getting regular checkups with a doctor is probably a good idea. Even those of us who are most resistant to "wellness" visits still find ourselves at the doctor's office on occasion to deal with a cold or ailment. If our physician is conscientious, he or she would take such opportunities to update our health status and make recommendations for our well-being going forward.

While many people avoid the going to the doctor, perhaps even more fail to check up on their "Legal Health" as often as they should. Like our physical health, our financial and personal situations change over time.

For many people, the "wake up call" comes when a loved one dies. Such events often give us a renewed awareness of how important legal documents can be. It prompts us to think about who would be the best executor for our wills; who would best serve as an agent for our health care proxy, power of attorney, or guardian of minor children in case of a catastrophic event.

But death is not the only major event that impacts our legal health. Other life-changing experiences include marriage; the birth or adoption of a child; the purchase of a home; the establishment of a new business; a divorce; progressive illness; and retirement.

Every one of these events may have legal consequences, and more often than not, these events are inter-related and have rippling effects. For example, our office recently received a request from a caller to speak with an "elder law" attorney. The caller's desire was to make an appointment for assistance in preparing basic planning documents. Upon further inquiry, it was discovered that the caller was about to receive an inheritance and now believed it was a good time to prepare his estate plan. Further discussion revealed that the administration of the underlying estate was not going smoothly and it was determined that the caller could benefit from legal guidance to protect his interest. The inheritance would also be addressed in the caller's anticipated estate planning.

In these days of extended family trees complicated by remarriage, adoption, divorce, or, more importantly, long-term arrangements where unmarried couples have no statutes that default to the benefit of the unmarried partner, it is imperative to have your choices expressed in writing – in a legal document, be it in a will, a health care proxy, a power of attorney, etc. After all, carefully prepared legal documents are the only ways to ensure that your intentions are met and your assets properly protected.

Reasons to Revisit
If feeling a sense of "legal wellness" is not a strong enough impetus to get you to go for your legal checkup, please consider the following scenarios.

Inheritance. If you are an heir of an estate, there are notices and information that you should receive, and an attorney can help you understand these. More than that, the value of your inheritance may be cause to reevaluate your planning documents. You may not realize that you are now in a position of having a taxable estate in New York, which may be mitigated by certain planning strategies.

Starting a Business. If you have recently established a business, ownership interests and succession planning are aspects that should be inter-related with your estate plan for maximum asset protection.

Family Members with Special Needs. If you have a member of the family who is disabled, you may wish to make provisions for them that will not cause them to lose any public benefits they may be receiving. Establishing a Supplemental Needs Trust for the benefit of a disabled family member may be an important part of your estate plan to be considered. Aging and health concerns may provoke thoughts about the ability to provide future care and there may be possible estate planning strategies that can be employed to ease these worries.

Time. Sometimes passage of time alone is sufficient to justify a review of your planning documents. Even if you have not experienced any recent life-changing events, and you believe that your existing documents express your wishes, they should still be reviewed, especially if they are long-standing. If your Will was prepared without a self-proving witness affidavit, the witnesses will have to be located in order to sign an affidavit of attesting witness, which is necessary to complete probate. Many times, the Will was executed so long ago that the witnesses have moved or died, which creates problems to be solved that are usually time-consuming and can be expensive. Also, there were changes in the New York law governing powers-of-attorney in both 2009 and 2010 and you may wish to have your present power-of-attorney document reviewed to be sure it provides all the rights and privileges accorded with the change in the law.

The Choice is Yours
In terms of both your legal health and your physical health, preventative measures always produce better outcomes. Regarding your legal well being, if you don't deliberately put your choice in writing as to whom you would like to pass your estate, you are essentially choosing to have the New York Estates, Powers and Trusts Law name the heirs by default. If there is no Last Will and Testament, the statute sets forth who of your relatives is to inherit, and in what percentages. We encourage you to visit your legal advisor to plan wisely and choose your fate purposefully.

Mary L. Rhodes, Esq. is an Associate who specializes in Trusts & Estates Administration and Planning. She can be reached at 516-437-4385, ext. 141 or at MRhodes@vmmlegal.com.