Trust and Estate FAQs with Rebecca Heller, Esq.

Rebecca Heller is Managing Partner of Heller and Associates, a boutique NYC law firm. She is the chairman of the Legally Links Trusts and Estates Division.

Legally Links is available to help surviving spouses and children. Please do not hesitate to reach out to legallylinks@linksfamily.org

What happens if a person passes away without a will?

If a person dies without a will, that is referred to as “intestate.” When this happens, the intestacy laws of the state where your loved one resided determine how their assets will be distributed. This includes any bank accounts, securities, real estate, and other assets they owned at the time of death, unless there are beneficiary designations or joint owners with a right of survivorship on the accounts/assets.

The laws of intestate succession vary greatly, depending on whether the deceased was single or married or had children. In most cases, the property is distributed in split shares to the heirs, which could include the surviving spouse, parents, siblings, aunts and uncles, nieces, nephews, and distant relatives. Generally, when no relatives can be found, the entire estate goes to the state.

Do I need a will?

The answer is almost always yes. A will allows you to choose who will inherit your assets. You will also be able to name key fiduciary roles, such as the executor (who will be responsible for distributing your assets), the guardian (who will be legally responsible for any minor children), and a trustee (who will be responsible for the minor children’s finances).

What is the reason for having a power of attorney and/or health care proxy?

A power of attorney allows you to pick an agent (or agents) to make financial decisions and act on your behalf in the event you’re unable to act on your own. You can choose co-agents to act together or a successor agent to assist if the first agent is unable to act for you.

The health care proxy allows you to name a person who has the power to make medical decisions on your behalf. You should name one person at a time, but can choose more than one person.

What is probate and why do I want to avoid it?

Probate is the process by which a will is proven valid. The Surrogate’s Court in the state where the deceased lived will look at the will and supporting documents and make the determination that the will is or is not valid. Until the court grants letters of testamentary or letters of administration (when there is no will), the assets cannot be distributed. It can take a few months for the assets to be available. A trust would assist you in avoiding probate.

Do I need a trust if I have a will?

It depends. While trusts and wills have similar functions for distributing assets after a person’s death, there are many different types of trust and reasons to have one. Many individuals set up trusts for Medicaid planning, asset protection, or to reduce the amount they’ll pay in estate taxes. A proper analysis of your finances and personal goals is necessary in order to determine if a trust is right for you.

Will Legally Links create a will or trust for me?

Unfortunately, due to resource constraints, Legally Links is unable to form a will or trust for Links families. But we remain available to assist with questions and referrals to outside trust and estates lawyers.