Naming Beneficiary of Estate
Naming the beneficiary of an estate is an important part of any estate plan. When a person dies without a last will or intestate, the statutes provided by the person's domicile or home state generally determine who inherit his or her assets.
It is not always easy to determine the location of a person's domicile. Domicile is the primary place where a person lives and intends to be their home. A person can have many residences but only one domicile. New York Estates, Powers and Trusts Law Section 103(15) provides a definition for Domicile. When helping a client to develop an estate plan, a Brooklyn Estate lawyer, like those throughout New York, will seek to determine a person's domicile. Factors that show a person's domicile include income tax returns, a driver's license, and other documents like asset ownership records.
Problems arise when a person dies intestate and the laws of his domicile must be looked to for the rules which select the persons entitled to inherit the estate. Where the intestate estate beneficiaries cannot easily be figured out, a Kinship Hearing may be needed. Hearings on kinship are held in the New York Surrogate's Courts. In New York City, there is a Queens Surrogate's Court, a Brooklyn Surrogate's Court, a Manhattan Surrogate's Court and a Staten Island Surrogate's Court. These hearings involve the presentation of evidence such as marriage records, death certificates and birth records. It may be difficult to obtain copies of these papers especially where the records are many decades old and were on file in other states or countries throughout the world.
When a person creates a last will or trust, he or she has the opportunity to designate the persons who will be the beneficiaries and contingent beneficiaries of assets. Thus, designating beneficiary of estate allows a person to fulfill their wishes and desires regarding the disposition of their assets and estate.
Sometimes if domicile or kinship issues appear to complicate planning and the potential probate process, a person may want to consider establishing a Living Trust. These trusts are created during a person's lifetime. All of a person's assets are then transferred into the trust. The grantor or creator of the trust can retain complete control over the assets during life and can even revoke the trust or transfer assets into or out of the trust without any restriction. Upon the person's death, the trust assets are distributed to the named beneficiaries without the need to probate the document. Thus, issues regarding domicile and kinship can be avoided. Also, the trust agreement can specify which state's law is to control the interpretation of the trust terms. While the Grantor can be the primary trustee and act alone, the document can designate a successor trustee to take over if the Grantor dies or becomes disabled. This aspect allows Living Trusts to provide lifetime property management even where a person becomes incapacitated which may avoid the need for the appointment of an Article 81 Guardianship by a Court.
I have many years of experience working with clients to assist them with their estate plans that effectively express their personal desires regarding the disposition and protection of assets. At the same time, I work to provide crucial potential tax advantages and security for family and beneficiaries.
To contact me regarding any questions or concerns call (212) 355-2575 or e-mail