Planning for the future of a business is as important as planning for the future of an individual or a family. Organizational stability and leadership, tax planning and its impact on a business and personal estate are items that need careful consideration and planning and will lay the groundwork for a formal succession plan.
What is Estate Planning?
Estate planning is important in controlling how your assets are given to the people or organizations you care about after your death. To ensure that your wishes are carried out, you need to provide instructions stating whom you want to receive something of yours, what you want them to receive, and when they are to receive it.
There are several basic estate planning documents that should be included in most estate plans:
Last Will & Testament
A last will and testament is a legal document that details how and when your beneficiaries will inherit your property and assets. It should also name your executor, the individual you choose who will be in charge of settling your final affairs and guiding your estate through the probate process. Additionally, you may include a trust(s) in your last will and testament, providing additional protection to chosen beneficiaries.
Power of Attorney
A power of attorney is a document you use to appoint someone to make decisions on your behalf. The person you designate is called an "attorney-in-fact." The appointment can be effective immediately or can become effective only if you are unable to make decisions on your own.
Health Care Proxy
A health care proxy is a legal document that allows you to appoint another person as your proxy or agent to make medical and healthcare decisions for you, should you become unable to make them for yourself.
Living wills and other advance directives are written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. These advance directives help doctors and caregivers make health-related decisions for you if you're terminally ill, seriously injured, in a coma, under anesthesia, in the late stages of dementia or near the end of life.
Other Estate Planning Legal Considerations
In addition to the basic documents, there are myriad of planning choices and documents available to address the most complex situations. We work closely with our clients to develop estate plans that minimize income, estate and generation-skipping taxation.
Why should you have an estate plan?
A failure to plan is a plan to fail.
At least in New York, if you fail to have an estate plan, your assets will pass by operation of law, depending on the asset. Having an estate plan allows you to direct exactly how you wish your assets to be distributed upon your death. Further, a properly prepared estate can help minimize the probate process, its expenses, delays, and loss of privacy.
A poorly prepared estate plan can lead to the following issues:
Loss of Privacy
Personal information come can be accessed from the probate court.
Probate fees can become quite substantial, even for the most basic case. Attorney's fees and court costs may possibly take up to 5% of an estate's value.
Uncontested probate may possibly take longer than a year.
With proper planning, these delays and costs, and the loss of privacy, can often be avoided.
The estate planning attorneys at Colligan Law have the experience and expertise to guide you through the entire Estate Planning process.
What is Succession Planning?
Planning for the future of a business is as important as planning for the future of an individual or a family. Succession planning is a crucial part of ensuring your company’s longevity and security. If you set a comprehensive succession plan in place early on, your organization can navigate leadership transitions and other unexpected events with ease.
At its core, a sound succession plan involves several important steps, including identifying key positions, choosing qualified candidates and training promising employees. Often, management works with Human Resources or other personnel experts as they work through the succession planning process.
In addition to the people/organizational aspects, tax planning and its impact on a business and personal estate are other considerations to include when laying out a formal succession plan.
When drafting a plan, many organizations allow for two categories of events: death/accident and retirement. Death/accident plans are reserved for worst-case scenarios and should be finalized long before they’re needed. Retirement succession plans are usually executed gradually over a long period of time and focus on a predetermined date, most likely several years in the future.
Your organization’s succession plan should be enforceable and binding, and it should protect you from any potential lawsuits. A strong succession plan will prevent others from attempting to disenfranchise your intended successors.
There are several complications that can potentially alter the integrity of your business upon transfer including:
Navigating the legal implications of defining your business’s legal future can be complicated, but Colligan attorneys specialized in the area of succession planning can provide sound advice and legal solutions to facilitate a successful transition.
- • The unintentional revealing of confidential information
- • Liabilities involving the communication of your departure, or lack thereof
- • Restructuring of the entity’s organization
- • Sudden death that enacts state inheritance laws (may not match your wishes)
What is Estate Administration?
The probate process and estate administration that follows must be carefully navigated—and sometimes even litigated.
Probate is the legal process a will must go through to establish its validity before anything can be distributed to the beneficiaries. The testator, meaning the person writing the will, names an executor in the will whose job it is to move the will through the probate process. The people who inherit from the will are the beneficiaries.
The probate process consists of the executor gathering the deceased person’s assets, paying debts and taxes, and distributing what’s left to inheritors.
While the probate process can be a difficult one, Colligan Law attorneys are focused on making probate and estate administration as smooth as possible for the executor and other beneficiaries.
- • Proving in court that a deceased person's will is valid
- • Identifying and inventorying the deceased person's property
- • Having the property appraised
- • Paying debts and taxes
- • Distributing the remaining property as the will directs
What is Estate Litigation?
The probate process and estate administration that follows must be carefully navigated—and sometimes even litigated. Ideally, the instructions are clear and the process proceeds smoothly. However, in some cases, probate disputes arise that lead to litigation.
Estate litigation is no small undertaking. It's subject to specific rules, deadlines, etc.
A probate litigation attorney helps individuals, heirs, beneficiaries, executors, and trustees navigate the litigation process to secure the best result.
A probate dispute takes place when an interested party makes a claim or raises a dispute during the probate process.
Probate Litigation may occur over:
An interested person wishes to challenge the validity of the will probate.
Disputes over who serves as Administrator result in a contested hearing. The decision maker only allows a short time for evidence and testimony. Improper procedures and evidentiary failures may result in the wrong person gaining control over the estate.
Executor Fee Disputes
When an interested person believes the executor of the estate has overcharged the estate.
When an interested person believes the Executor is not providing adequate information.
Spousal Elective Share
When a surviving spouse exercises the right to claim a portion of the estate.
Though not technically a probate dispute Guardianships are often thought of as probate matters as the same court hears them as many other probate Litigation matters.
If a will forms a trust, a dispute over the trustee’s appointment is probate litigation. Probate litigation can take a very long time in court. As the case proceeds, your attorney will walk you through the legal steps and present all evidence before the court.
An experienced Colligan estate litigation attorney can help move your case along as efficiently as possible