What you need to know about Wills:
The primary reason for making a will is to leave your possessions and property to those you care about in the manner and proportions you choose.
If you die without a will, the assets in your name in most instances will be distributed by a court-appointed administrator among your family members pursuant to a statutorily fixed priority. These rules, known as the "Distribution Rules of Intestacy" reflect what the New York State Legislature decided would likely be preferable in most situations.
If you die without a will and leave young children here's something else to consider: If any of your children are under 18 years of age at your death, a court-appointed guardian will be required to manage your minor child's share of your assets. Although the court probably would appoint your spouse as guardian of the property for your minor children, this is not guaranteed. Also, the guardian may have to post a bond. Payment of the bond premiums will cost money. Moreover, if any portion of your assets is needed to pay for your child's education, clothing or living costs, prior approval of the court is necessary. The court also requires guardians to file annual accountings of income and expenses. In addition, the range of investments available for the funds held by the guardian may be limited. Thus, if the guardianship lasts for any length of time, the child's funds may not grow at an acceptable pace.
These problems can be avoided with a properly drafted Will. If you and your spouse die at or about the same time, it is important that you make a provision not only for a guardian of the property of any child under age 18, but assets to your chosen beneficiaries.
Moreover, you may not end up with a valid Will, as Wills have formalities of execution that are fixed by state law.
An invalid Will can result in your assets being administered under the Distribution Rules of Intestacy. Securing the professional guidance of an attorney can resolve these issues. Making the best plan and the best Will takes knowledge and expert advice.
For example, do you know that property held jointly with another may not be distributed by a Will? Or that life insurance may or may not be distributed by a Will depending on who is named as a beneficiary? Or that the same can be said of individual retirement accounts, pension plans and other assets?
Or that a spouse has a right to a car and certain other items, as well as to a large share of your property no matter what your Will may direct? The best estate plan recognizes that your Will is only part of your total plan for the distribution of your property. In some instances it may be all you need. To create the best Will and estate plan for you, make an appointment to review and discuss drawing your Will that reflects your wishes as well as your over all estate planning needs.
If your prior Will was drafted in another state, and you now live in New York, give us a call. You do not need to contact and out-of-state attorney to revise or draft a new Will.
If you plan properly and review your plan periodically, you may lessen the tax burden on your estate and leave more to your beneficiaries.
Before you make a Will, you should also know how estate and income taxes affect you and your assets. The federal and New York tax laws change often as a result of various tax reform acts. So you may not be up-to- date with these complex and frequently changing laws. Also, you may be unaware that you can choose which of your beneficiaries pay the estate taxes. If you do not choose how your estate taxes will be allocated, the tax burden will be allocated among your beneficiaries according to statutory rules that may not be in accordance with your wishes.
An attorney can help you draft a Will and create an estate plan that addresses these issues. If you plan properly and have your plan reviewed periodically by an experienced and qualified attorney, you may be able to reduce or eliminate the tax burden on your estate and leave more to your beneficiaries. Discuss the question of a fee with your lawyer in advance. Make sure he has your best interest in mind when he answers your questions.
The cost of drawing a Will depends on the amount of time your attorney spends on the matter, the complexity of your assets, and your dispositive wishes. In small estates, when a Will contains no complicated provisions and need not address any unusual problems, the fees may be very modest. Remember, the advice of an expert may prove invaluable and give you the peace of mind you need.
"Making a Will is one of the wisest and potentially most important legal decisions you'll make as an adult."
For answers to questions or help preparing your Will, call us at 212-268-8200. Or email me at
Click here to read "The Differences Between a Will & a Trust."
Our documents are drafted using effective, but simple "non-legalease" language, so that you can understand what you are signing. Call or email today to schedule an appointment.
The Law Offices of
Brian A. Raphan, P.C.