By: Jeffrey Lee Drimer, Esq.
No one likes thinking about death, especially their own. It is for this reason that many people avoid the simple, inexpensive and necessary step of drawing a Will.
Unfortunately, many people believe because their bank accounts are “joint” and that they hold title to their house with their spouse and have designated beneficiaries on his or her life insurance that they don’t need a Will. They believe the law will transfer their property automatically to their surviving spouse, and probate can be avoided. While this may be true, it fails to address many matters you should be cognizant of.
First, you should consider what happens to your estate if you die without making a Will. In that event, the State of New York will distribute your assets in accordance with applicable State law. A simple search of the “Laws of Intestacy” in New York will provide you with a chart that will explain to you what happens to your estate should you die, breaking it down as single, married or unmarried with or without children. Reading that chart should be enough to make you call your Family Lawyer and start drawing a Will.
Once you begin this process, there are many issues for you to consider. Do you want to make any charitable gifts as part of your Will? Do you have any specific items of property that you want to go to a specific person? To whom do you want your assets to go? Your Will at its core is essentially for this purpose.
For many of us, a Will is written to protect your children. More importantly, if you have minor children, your “Will” will name a legal guardian to be appointed in the event of your death. If you don’t do this, the Court can and will choose who will care for your children. This is a serious and important matter and should not be left to strangers. It is helpful if you, and your spouse are in agreement on this and name the same persons as guardians in your respective Wills. This is such a personal and important designation and should be made with great care.
Your Will should also create a Trust for your children to hold your assets and ensure that they are used appropriately for the benefit of your children. It will as well determine the age at which your children will receive the proceeds of the Trust when they become adults. It will also provide for their care, security, well-being and education.
You should also consider the possibility that if you leave all of your assets to your spouse (assuming your spouse will use these assets for the children) or that your spouse may remarry and leave his or her estate to a new spouse. That spouse might then dispose of the Estate to the exclusion of your children. Clearly, this is an undesirable result and can be avoided by the creation of a Trust, as part of your Estate planning.
Designating a Trustee to manage the Trust is a crucial decision that should be discussed and considered with your family and your attorney, which is helping you create the Trust in your Will.
To ensure that the intent of your Will is carried out you will also have to designate an Executor or executrix. That person will offer your Will to the Surrogate’s Court and be appointed the legal representative of your Estate. This person would then be charged with the responsibility of paying your debts from your estate and to see that your estate is distributed as you intended. You will also determine whether or not the Executor will serve with or without Bond.
Depending upon the size of your estate you may want to discuss your Will with a specialist in Estate Planning because of tax consequences. If you have your own business or have an interest in an existing trust, an Estate Planning professional is advisable.
Proper planning should also include a Durable Power of Attorney, a Health Care Proxy and a Living Will (so that your treatment at the end of life is known to your Doctor and family).
Finally please remember that making a Will is not just filling out a form and transferring a bank account it is your last expression of your concern, love and respect to your family and friends and should be drafted with that in mind.