Q: One of my employees has recently been diagnosed with cancer. What legal documents, advice, and plans do you recommend to help her prepare for the future?
A: Estate planning can provide peace of mind and help create the proper documents to protect your employee’s loved ones during this challenging time. An important first step is speaking with a qualified estate planning attorney who can assist them with creating a comprehensive plan, so they can focus on healing and taking care of themselves.
While it's important to consult with an estate planning attorney to tailor each of the following documents to an individual’s specific needs and circumstances, here are some key legal documents to consider:
1. Last Will and Testament
Purpose: A Last Will and Testament is a document that specifies how your assets will be distributed upon your death. You can name beneficiaries for your property, choose guardians for minor children, and designate an executor who will carry out your wishes.
The Will can be revised during your lifetime, provided you have the requisite capacity to do so.
If a person passes away without a Will and retains assets solely in his/her name alone at death with no designated beneficiary named for said assets, then the laws of intestacy will apply and your assets will be divided between certain family members, despite the fact that the decedent may not have wanted his/her assets to be distributed in that manner. If the decedent had no family, then it is a possibility that the state of New York could inherit the decedent’s estate.
2. Health Care Proxy with HIPAA Authorization
Purpose: A Health Care Proxy designates someone (your agent) to make medical decisions on your behalf if you are unable to make them yourself due to illness or incapacity. This document is critical if you are unable to communicate your wishes. It can also authorize individuals (like your family members or healthcare agents) to access your medical information. Without this, even your family may not be able to get information about your condition from your doctors.
Having an agent who can make decisions that reflect your wishes and interests, such as choosing or stopping treatments, can best ensure that you receive the type of care that you desire. Further, it can help prevent conflicts between family members or medical professionals.
If a person becomes incapacitated and can no longer make his/her medical decisions and he/she does not have a valid health care proxy, then it will be necessary to petition the court to assign a court appointed guardian to make such medical decisions. A guardianship hearing can be both costly and prolonged.
3. Living Will (Advance Directive)
Purpose: The Living Will outlines your preferences for end-of-life care, such as whether you want life-sustaining treatments (e.g., mechanical ventilation or resuscitation) if you are terminally ill or in a coma. This can be part of your health care proxy or a separate document. This document helps prevent any confusion among your loved ones and healthcare providers about your wishes.
4. Durable Power of Attorney for Financial Matters
Purpose: The Power of Attorney appoints someone (your agent) to handle your financial matters, such as paying bills or managing investments, if you become incapacitated.
This can be extremely beneficial since the agent of a POA will be given legal authority to act on behalf of the POA principal and can assist if the principal becomes incapacitated or is unavailable and ensure that the principal’s assets and finances are protected. Further, having a valid POA can aid in avoiding a costly and prolonged guardianship proceeding, as discussed above.
5. Beneficiary Designations
Purpose: Many assets like life insurance policies, retirement accounts and bank accounts allow you to designate beneficiaries directly. These designations supersede any instructions in your Will or trust. It is prudent to make sure your beneficiary designations are up to date and reflect your current intentions. Sometimes these documents are overlooked.
If a named beneficiary is designated to receive assets, then at a principal’s death, the assets will avoid probate and pass directly from the decedent to the named beneficiary in an expeditious and streamlined manner.
It is important to note, however, that if a person is named as a designated beneficiary, that will trump what is said in a decedent’s Will, so for example, if a decedent desires for proceeds of a life insurance policy to pass equally to her children – A, B, and C – but she desires for C’s share to pass into a trust established under her Will, then this will have to be imparted on the beneficiary designation form as well. If the beneficiary designate form simply names Child C as a beneficiary of a life insurance policy, then the proceeds will pass to Child C outright, despite the decedent’s intent for the proceeds to pass to the trust established under the Will.
6. Revocable Living Trust (Optional)
Purpose: A revocable living trust allows you to transfer your assets to a trust while you are still alive, enabling your successor trustee to manage and distribute your assets without going through probate. This can be particularly helpful if you want to avoid probate or ensure your assets are handled in a specific manner, but it requires more maintenance and can be more complex to set up than a Will.
Revocable trusts are generally private, as their contents stay between the donor, their trustee, and the beneficiaries of the trust. They do not require a court to accept their validity and family members (in the absence of litigation) have no access to what you left other beneficiaries. They generally avoid the probate process and can sometimes be an effective way of preventing family conflict.
7. Letter of Instruction (Optional)
Purpose: This informal document can provide additional guidance to your loved ones about how you want your affairs handled. It can include information about funeral arrangements, where important documents are kept, and other personal matters not covered by formal legal documents. This document is not legally binding but can be very helpful to your loved ones.
8. Funeral or Memorial Instructions (Optional)
Purpose: These instructions specify your preferences for your funeral or memorial service. While this is typically not legally binding, it can relieve your family from having to make these decisions at an emotional time. You might include details like burial or cremation preferences, whether you'd like an obituary, or what type of service you want.
Reprinted with permission from the 2025 February/March issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here.
Joshua B. Beisker is a Partner in Underberg & Kessler LLP’s Estates & Trusts, Corporate & Business, and Tax Law practice groups. He focuses his practice on complex estate planning and estate administration matters. He also provides counsel to businesses on tax and succession planning, general corporate governance, and achieving tax efficiencies. Joshua can be reached at jbeisker@underbergkessler.com or 585.258.2879.
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