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Estate Planning FAQs

How do I know if I have an Estate?

If you have possessions, you have an estate. Your estate is comprised of everything you own – your assets – which include your car(s), home and other real estate, bank accounts, life insurance, investments, furniture, personal possessions and more.

Should I have an Estate Plan?

No matter how large or how modest of an estate you have, one thing is certain – you can’t take it with you when you pass away. When that happens, as inevitably it will, you want to make sure the assets you’ve worked so hard to accumulate during your lifetime go to the people you care about. This can be a complex process, but you can make it easier by developing your plan with experienced professionals. Joseph C. Petriello and Matthew J. Petriello at the Law Offices of Joseph C. Petriello are experienced attorneys who have assisted hundreds of clients with their estate plans.

What should be included in my Estate Plan?

Joseph and Matthew will review your situation particulars including whom you want to receive your assets, what specifically you want them to receive, and when they are to receive it. That is basic estate planning. However, good estate planning is much more than that. It should also:

  • Include instructions for your care if you become disabled before you die.
  • Name a guardian for minor children.
  • Provide for family members with special needs without interfering with government benefits.
  • Provide for loved ones who might be irresponsible with money or who may need future protection from creditors or divorce.
  • Include life insurance to provide for your family at your death, disability income insurance to replace your income if you cannot work due to illness or injury, and long-term care insurance to help pay for your care in case of an extended illness or injury.
  • Provide for the transfer of your business at your retirement, disability, or death.
  • Minimize taxes, court costs, and unnecessary legal fees.
  • Be an ongoing process, not a one-time event. Your plan should be reviewed and updated as your family and financial situations (and laws) change over your lifetime.
What exactly is a “Will”?

The will is a written document that provides instruction on disposing of your assets after death. An executor/executrix is named in the will to carry out all instructions. This person may also be called a personal representative and there can be more than one individual designated as executor.

Beneficiaries or heirs are the persons who are entitled to receive a part of the estate. A will provides your instructions, but it does not avoid probate. Any assets in your name or directed by your will must go through your state’s probate process before they can be distributed to your heirs.

My mother had a Will, so why do we need to go through Probate?

Probate refers to the legal process for validating a deceased person’s will. More commonly it is known as the process of settling an estate including paying debts and distributing assets. The intent is to protect and direct the distribution of property according to your will.

Not everything you own will go through probate. Jointly-owned property and assets that let you name a beneficiary (for example, life insurance, IRAs, 401(k)s, annuities, etc.) are not controlled by your will and usually will transfer to the new owner or beneficiary without probate.

Should I have a Will or a Trust?

A Living Trust is another option for passing on assets. A trust contains instructions for managing your assets during your lifetime and can continue after your incapacity or death. A trustee is appointed and is responsible for providing the managerial services required by the trust agreement. This type of trust is used when it needs to last for an extended period of time after your death, in order to provide for beneficiaries to reach a certain age or to provide for a loved one with special needs. Trust assets avoid the costs and delays of probate.

There are many other trust options available, but they all share a common definition: “An entity that holds assets for the benefit of other persons for a set term”. Joseph C. Petriello can advise on the pros and cons of various types of trusts and advise as to your specific needs.

What types of POAs should I consider?

A Durable Power of Attorney for Finances is another important document to include in your estate planning. It ensures that the individual you trust and select has legal authority to take care of financial matters including paying bills and filing taxes, if you cannot. “Durable” means the document remains effective if you are incapacitated.

An Advance Medical Directive is a legal document detailing your health care wishes. This document lets you give someone the authority to make health care decisions for you in the event you are unable to make them for yourself.

What happens if I don’t have an Estate Plan?

Some people put off estate planning because they think they don’t own enough, they’re not old enough, they’re too busy, they think they have plenty of time, or they just want to avoid thinking about the inevitable. In those situations, there are state probate laws that take care of how assets are distributed. An Administrator will be named by the court to represent a probate estate (when there is no will or no Executor named). If there are minor children and both parents died, the state will appoint a Guardian who will be legally responsible for the care and well-being of minors.

In order to control who receives what and when and, if you have young children, to have a say in who will raise them if you cannot, you need an estate plan.

What is the best time to make an Estate Plan?

None of us really likes to think about our own mortality or the possibility of being unable to make decisions for ourselves. This is exactly why so many families are caught off-guard and unprepared when incapacity or death does strike. Don’t wait. You can put something in place now and change it later…which is exactly the way estate planning should be done. Give our office a call now – 973-890-7262. Joseph C. Petriello or Matthew J. Petriello can discuss your particular situation and we can get the process started for YOUR estate plan.

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