A will is needed to pass your property upon your death to the people you choose, rather than as state law chooses for you. A will is customized to your needs. If you die without a will, your property is distributed to those designated in the New York Estates Powers & Trusts Law. For example, if you die leaving a spouse and children, your spouse takes the first $50,000.00 of your estate and one-half of the balance of the estate with the other half being divided among your children. In our experience writing wills, hardly anyone would want this sort of result, but the failure to have a will gives you and your heirs this in New York.
A will allows you to make decisions, rather than forcing state law or a judge to make the decisions for you after your death. You can direct certain items of value or accounts to go to designated persons, including your church or favorite mission society or charity. The government cannot do this without your specific instructions in a properly executed will. You can designate your executor rather than leaving that choice to your heirs and the surrogate court judge. You can minimize fees and taxes with proper estate planning. You can designate a guardian for your children who will raise them in accordance with your beliefs, rather than having the judge make the decision. And you can set up a trust and name your choice of a trustee in your will to distribute your money to your children over many years and under your choice of conditions, rather than giving your kids all of their inheritance at age 18 as New York law would provide absent a will.
Wills can be changed easily, but it is not something you can do yourself. We draft our wills in a forward-thinking manner so they will not become obsolete in a couple of years. For example our wills usually accommodate younger children that arrive as a young family grows without the need to revise your will. But as circumstances change as federal and state laws are changed, estate tax laws are amended, your selections of guardians or executors move away or become unsuitable, children become adults, and your net worth increases, it ultimately becomes necessary to make changes in your will with a codicil or perhaps with a new estate plan. We keep up on the ever changing laws so as to adequately advise you when it is necessary to change your estate plans.
Any estate in excess of $5 million requires detailed and complex estate and tax planning, or the federal and state governments will pocket large taxes upon your death. We can avoid this, but if you die without a will or with an improperly planned will, the chances are that the government will get their tax rather than your heirs getting all that they should get.
Sometimes a will is not the best way to go. Some clients need trusts either standing alone or in addition to a will. Trusts can be included in a will, or can be drafted for all sorts of specialized purposes, such as avoiding probate, privacy, eliminating will contests, tax planning, Medicaid planning, educational gifts, and for many other purposes. After we review your estate needs, we can advise you what sort of trust you need, or whether you should forego the separate trust.
Sometimes proper estate plans involve transferring real estate while reserving life estates, gifting, Totten Trusts, powers of attorney, various types of guardianships, and other devices.
If there has been a death close to you, it is likely that you will need to contact an attorney to handle the estate. If there was a will, the process is called “probate.” If there was no will, the court procedure is for “administration.” The first question to ask the lawyer should be: “Do I need to probate the will of the person who died?” or in the case of a death without a will, “Do I need an administration proceeding?” The answer is sometimes, but not always. We will discuss the estate situation with you to determine whether a probate or administration is necessary. If they are not necessary, we will advise you how to avoid them, and how to handle the assets of the deceased without extensive legal proceedings. Even if some estate proceedings are necessary, we may be able to use the “small estates” provisions of the law to make things very simple.
If you want more information, call our office and we will be happy to discuss your estate needs over the telephone with no charge or obligation to you. Then you rather than the government can decide who gets your estate!