WILLS, PROBATE and PERSONAL PLANNING DOCUMENTS

A will is effective only after death, not before. During one’s lifetime, a person may still do what she or he wants independently of the will. 

Wills help state and clarify your intent, what you want to happen with your property after death.  They help prevent or minimize misunderstandings and conflicts. 

Why use a lawyer? 

Lawyers know steps to take to help make sure a testamentary will is properly created, signed, and will be readily accepted by the court. Many self-created wills are not approved by the court.  A lawyer knows questions to ask, and helps with the language to say what you want to happen. Lawyers help also with the background information and documents so the court will approve the document and the executor can carry out your plan. 

The law requires that estate property, your property after death, be paid out in a specific order of priority:  

• • Administration expenses.  These include funeral and burial costs, court costs and fees (which are usually based on the value of your estate property), legal fees, and expenses to preserve and protect property.
• • Expenses for medical treatment of last illness
• • Taxes
• • Creditors, unpaid general bills; for example, utility, telephone, credit cards
• • Gifts by bequest and devise
• • Family, friends, charities, etc. receive their gifts only when all the others are paid.

Paying bills out of order may make the person paying them responsible for the amount paid if there is not enough in the estate.

There are a number of ways to give your property :

Devise: This is a gift of real property when the ownership interest is not otherwise arranged in the deed itself, the title document.  Many deeds already have arrangements for succession on death:  joint tenancy, tenancy by the entirety (married couples), or life estate. A devise of specific, named real estate vests title, ownership in the devisee immediately on the owner’s death. 

Specific bequest: This is a gift of specific personal property, often something of monetary or sentimental value, given to specific individual or group or institution. Often these may involve a family heirloom or an object of value or significance; for example, jewelry, tools, a vehicle, art work, security or stock shares, etc.  If the property is given away, transferred (by you or by your agent with a power of attorney) to that person or anyone else during your lifetime, the gift lapses. There is nothing to give after your death. 

General bequest:  This is a gift of a specific dollar amount from the general holdings of your estate. It may come from cash on hand or from the sale of unspecified property. Such a gift may be stated in a dollar amount or a percentage of the total estate value.

Contingent bequest: This gifts property to a person or institution when another beneficiary does not survive to receive it. The contingent beneficiary is a back up if the first beneficiary does not survive to receive it. 

Residuary bequest or devise: This is all the remaining personal and real property left that does not go to previously specified persons or institutions.  This “residual” property goes to a named person or a group, or one or more institutions/charities. 

Probate. This is the process when the will is presented to the court for approval.  Many wills prepared without a lawyer are not approved the court. In such a case when there is no will, your property passes by a process called intestacy.  In that case, the state decides who gets what and how much, not you.

Beneficiaries named in life insurance, an annuity, retirement accounts, and on specific bank or investment accounts get the proceeds separate from probate.  There are, however, some situations, when joint account funds can be withheld from the designated co-owner and applied to the estate expenses.

Executor: This is the person legally responsible for managing and distributing your estate. She or he almost always works with a lawyer who helps guide and advise the person through the process, such as with what forms to create, file, when, and who gets them. The executor is accountable to the court, creditors, and the beneficiaries.  This person needs to be trustworthy and reliable.

Administrator: The person appointed by the court to manage the estate when there is no will or no executor.

Guardian:   This is a person you designate in a will to manage the property of a minor, or also to have custody of the minor when there is no surviving parent.

Life Insurance:  Do you have life insurance, either term or whole life?  

Have you thought about the facts that:  

• • You can have more than one beneficiary, even multiple beneficiaries?
• • You can name charitable organizations as beneficiaries?
• • If you make a gift to a charitable organization, will it be to its general fund, operating expenses, or for a specific purpose? 
• • How are you going to pay for your funeral, burial, or cremation arrangements? Do you have a prepaid plan? 

Divorce: If you have a will that named the spouse you were married to as a beneficiary, New York law says that a divorce “(including a judicial separation ... or annulment ...) ... revokes [that] disposition,” and effectively voids or cancels that provision.  The former spouse gets nothing as if he or she had predeceased you. EPTL § 5-1.4. 

While this revocation applies to wills, insurance policies, and some bank accounts, it is much better, clearer, to get a new will in place, and to change all insurance policies and bank accounts which may have had your former spouse as a beneficiary.

OTHER IMPORTANT PLANNING DOCUMENTS:

• • Power of Attorney
• • Living Will
• • Health Care Proxy

A health care proxy and a living will are separate documents with separate purposes.

A health care proxy is used when you are unconscious or otherwise unable to communicate your health care needs or wishes, and a recovery is usually expected or contemplated.

A living will is used when end of life is near or anticipated, recovery is not contemplated. You may be conscious or not. It expresses your thoughts about the use of extraordinary life-savings measures and the prolongation of life.  It helps your family and doctors know what decisions and steps to take, or how to support you. You may also be involved in those decisions if you are conscious. 

The person making the decision in either document should know you well. She or he should know your lifestyle, your values, and your thoughts about extraordinary life-savings measures and the prolongation of life. This person must also be trustworthy, reliable, and emotionally strong. 

Jere Fletcher has had personal experience using a living will more than once. He has drafted and probated testamentary wills in New York State and Connecticut since the 1980s. 

REAL ESTATE, RESIDENTIAL 

The history of each piece of property and each home structure is very individual. Sometimes complications arise. When that may happen, you will want the peace of mind that comes from having a dedicated, experienced attorney on your side. Some real estate mills have paralegals, non-lawyers do this! But your home is the largest expense and investment you will probably make,  not the time for taking a short cuts.  

Legal items associated with real estate law include title transfers, closings, mortgage financing and re-financing. A survey is usually required from the seller, and the buyer is strongly recommended to get an inspection report.

Jere Fletcher has litigated real estate contracts through trial and appeal; he knows this part of the process as opposed to other real estate lawyers who mostly just handle paperwork.

LANDLORD-TENANT LEASES and EVICTIONS 

We know the law and have experience representing both landlords and tenants.

SOCIAL SECURITY DISABILITY – BOTH SSD/SSDIB and SSI 

Need to get your case in court or need help winning your case?

Talk with a lawyer.

Get experience on your side.

Jere Fletcher has represented clients at many Social Security SSD and SSI hearings throughout upstate New York, from Buffalo to Binghamton and Albany to Watertown, and in Connecticut. He has also worked with out-of-state claimants, such as in California, Florida, and Ohio.

His many federal court successes include the one that led to a ruling of national precedent in Fontana v. Callahan (disabled widow benefits), 999 F. Supp. 304 (EDNY 1998), NYLJ 4/9/98, p. 1, The Daily Record, 4/21/98, p. 1.

Fletcher wrote over 40 federal U.S. District Court briefs before the year 2000. For a back-disabled client, he used F.D.A. materials to get a favorable federal court decision concerning the diagnostic machinery and opinion of a local physiatrist. He is available for referrals for SSA cases in federal court. When successful, he is known for sending the client back to the referring office to continue the case.

Fees for time in SSA disability cases are on contingency, subject to success and/or approval by SSA or a federal court. Expenses and disbursements, if any, are always separate, additional to services for time.

Fletcher has achieved favorable Social Security decisions when others have turned the case away or said there is no case.

We do not take every case to court, but we take many tough ones.

We do hard work on the ones we do take.

If yours is a hard case, or even an easier one, then talk to us.

Let us help lead your fight alongside you.

© 2021 Jere Fletcher. All Rights Reserved