Do You Really Need A Will?
DO YOU REALLY NEED A WILL?
The power of a well-drafted will and well-planned estate never ceases to amaze me. Even minor preparations save time, money, and energy. People often do not want to think about what would happen to their families if today was their last day on this planet. We would prefer to think we can always deal with these issues some time in the future. However, as an attorney who drafts an average of 60 wills a year and has had to probate estates for families who did not come to me for a will, I cannot stress enough how important it is to have a will and what a comfort a will can be to the people you leave behind.
WHAT IF YOU DIE WITHOUT A WILL?
In New York, if you die without a will your estate passes by intestate succession. This means if you are married and have no children, your surviving spouse inherits everything. If you are married and have children, your spouse takes $50,000 plus one half of the remaining estate and the other half passes to your children. If you die without a spouse or children, your surviving parents inherit your estate but if your parents have predeceased you then your brothers and sisters inherit your estate. Does this sound complicated? The statute that discusses intestate succession goes on until the great-grandchildren of your maternal or paternal grandparents and then if you have no family New York State takes your money. If you do not like the statutory result I just rattled off, you need a will.
SOME BASICS
I recommend that people who are married and plan on having children write and publish a will. Even though you may not be a parent yet, you can draft a will that provides for children born in the future. For example, you have only been married a few months and have no children, you can draft a will that includes a gift or trust for them anyway because the will does not take effect until you die. A will is also a great way for you and your spouse to name a legal guardian in the event that you both die simultaneously.
For people who are not married, remember the result when you die without a will. Is that how you want your hard earned assets distributed? What if you are not married and both your parents have died, do you want your brothers and sisters to share in your estate equally? People who are closer to one sibling may want the person with whom they share a stronger bond to inherit the entire estate. People who never plan on getting married may have a friend that they want to remember in a will.
EXECUTORS
An executor of a will is the person who is responsible for carrying out the directions and requests in the will. The executor collects and disposes of the property according to the will’s provisions. This is an important job and you want to think of an alternate executor in case the person you appoint is unable to perform the duties. In New York, someone who lives in another state can serve as an executor if she is related to decedent (for example: a spouse, grandparent, or descendant of grandparent) AND a New York resident serves as co-executor. Executors have powers granted by law, but, a will can give the executor even greater power.
AVOIDING PROBATE
For people who really like to plan ahead, you can avoid probate and have your loved ones inherit money automatically. Life insurance policies pay on death and do not require any help from the court system if you meet certain criteria. The same is true of many deposits you have with your bank. Often when you open an account (checking, savings, certificate of deposit, or an IRA) the bank representative will ask you for a beneficiary. Therefore, if you have a savings account you can have the title of the account read “John Doe in trust for Helen Martin, my daughter” or many husbands and wives use joint accounts so if one dies the account remains active and passes automatically without any paperwork to the surviving spouse. Assets that have no beneficiary listed require legal papers from the court before the company holding the asset will release the funds.
“FORM WILLS” (OR WHEN A BARGAIN IS NOT A BARGAIN)
Now that you’ve read this article you may want to run out and buy any number of computer programs or forms that claim to provide a will. Not so fast. Wills need to be validly executed in this state. What does that mean? You need to have a will ceremony to ensure that all the statutory requirements are met. Also, get proper affidavits from the witnesses so that the will is valid in the eyes of a court. A computer program cannot ask you questions such as where are you planning to keep the will. If you think a safe deposit box is a good place for a will, you’re wrong. When you die, a safe deposit box is sealed and cannot be opened without court papers even if the box is held jointly. I like to discuss the options with clients to ensure the documents are easy to find and in good condition when the time comes.
FREE SEMINAR
Calvert & Calvert invites you to a free seminar on July 15 at 10:00 a.m. at our Syracuse office located at 4309 East Genesee Street. Please telephone 446-4600 to reserve a space. We will discuss wills, trusts, powers of attorney, and living wills.
If you enjoyed this post, please consider to leave a comment or subscribe to the feed and get future articles delivered to your feed reader.
Comments
No comments yet.
Leave a comment