AREAS OF PRACTICE

Wills and Estate Law

Goldstein & Metzger, LLP is well versed in all aspects of estate planning and estate law. This area of the law deals with the distribution of an individual's assets upon his or her death, taking into account taxes, insurance, property, and trusts so as to gain the maximum benefit under the law for all beneficiaries, while at the same time, carrying out the deceased's wishes.

A typical estate consultation will result in the production of the following legal documents:

• Last Will and Testament, which disposes of a person's property and assets upon his or her death.
• Durable Power of Attorney, which allows an agent to sign legal papers for the client, so long as the client is alive, such as banking, real property, litigation, retirement benefits or military benefits, even if the client later becomes disabled or legally incompetent. This document avoids the necessity of costly guardianship proceeds, should the principal later become incompetent.
• Health Care Proxy, which allows the agent to make medical treatment decisions for the client, only if the client is unable to communicate with their physician.
• Trusts, which create an entity which holds money or property. The trust describes who will manage the property (the "trustee") and who will receive the property or its income (the "beneficiaries"). Depending on a person's circumstances, a trust may be used to save taxes, avoid probate, protect assets from Medicaid claims, or transfer assets to other generations.

Wills and Trusts

Wills
Wills are the most common way for people to state their preferences about how their estates should be handled after their deaths. Many people use their wills to express their deepest sentiments toward their loved ones. A well-written will eases the transition for survivors by transferring property quickly and avoiding many tax burdens. While it is difficult to contemplate mortality, many people find that great peace of mind results from putting their affairs in order.

Wills vary from extremely simple single-page documents to elaborate volumes, depending on the estate size and preferences of the person making the will (the "testator"). Wills describe the estate, the people who will receive specific property (the "devisees"), and even special instructions about care of minor children, gifts to charity, and formation of posthumous trusts. Many people choose to disinherit people who might usually be expected to receive property.

Will Requirements
Formal requirements for wills vary from state to state. Generally, the testator must be an adult of "sound mind," meaning that the testator must be able to understand the full meaning of the document. Wills must be written. A testator must sign his or her own will, unless he or she is unable to do so, in which case the testator must direct another person to sign the will in the presence of witnesses, and the signature must be witnessed and/or notarized. A valid will remains in force until revoked or superseded by a subsequent valid will. Some changes may be made by amendment (called a "codicil") without requiring a complete rewrite.

Types of Wills
The following is a brief glossary of terms used in the law for various kinds of wills:

• Simple will: A will that just provides for the outright distribution of assets for an uncomplicated estate.
• Testamentary trust will: A will that sets up one or more trusts for some of the estate assets to go to after a person dies.
• Pourover will: A will that leaves some of the estate assets in pre-established a trust upon a person's death.
• Holographic will: A will that is unwitnessed and in the testator's handwriting. About 20 states recognize the validity of such wills.
• Oral will (also called nuncupative will): A will that is spoken, not written down. Only a few states permit these.
• Joint will: One document that covers both a husband's and a wife's estates (or any two people).

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Trusts
Trusts are estate-planning tools that can replace or supplement wills, as well as help manage property during life. A trust manages the distribution of a person's assets by transferring its benefits and obligations to different people. There are several reasons to create a trust, making this property distribution technique a popular choice for many people when developing an estate plan.

Creation of a Trust
The basics of trust creation are fairly simple. To create a trust, the property owner (called the "trustor," "grantor," or "settlor") transfers legal ownership to a person or institution (called the "trustee") to manage that property for the benefit of another person (called the "beneficiary"). The trustee often receives compensation for his or her management role. Trusts create a "fiduciary" relationship running from the trustee to the beneficiary, meaning that the trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not uphold those duties, then the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property, but he or she still must act in a fiduciary capacity. A grantor may also name himself or herself as one of the beneficiaries of the trust. In any trust arrangement, however, the trust cannot become effective until the grantor transfers the property to the trustee.

Testamentary and Living Trusts
Trusts fall into two broad categories, "testamentary trusts" and "living trusts." A testamentary trust transfers property into the trust only after the death of the grantor. Because a trust allows the grantor to specify conditions for receipt of benefits, as well as to spread payment of benefits over a period of time, instead of making a single gift, many people prefer to include a trust in their wills to reinforce their preferences and goals after death. The testamentary trust is not automatically created at death, but is commonly specified in a will and so as a will provision, the trust property must go through probate prior to commencement of the trust.