The following discusses issues relating to wills and estates in New York. It does not constitute legal advice and addresses issues only generally. Each situation is different and requires a specific legal analysis.
Any adult who owns assets can benefit from creating a Will. A Will lets you decide what happens with your property after you die. Without a Will, the law decides how your property is distributed and who gets what. This may not reflect your wishes. Here are some key considerations for anyone considering setting up a Will:
Why is a Will Important?
A Will can determine what happens to all of the assets you own when you pass away, including savings, investments, real property and personal property, such as jewelry, furniture and heirlooms. A properly drafted and executed Will is the best way to ensure that your wishes are carried out and can eliminate family disputes after you die.
Within a few legal limitations, you can distribute your property however you want in your Will. You can give all of your children equal shares or you can give everything to your favorite niece. You can donate to your favorite charity or set up a trust for the care of your beloved pet.
Your Will can say what to do with specific things you own. For instance, you can give your record collection to your daughter or your artwork to a grandson.
What happens if I Don't Leave a Will?
If you die without leaving a valid Will, you are called “intestate.” Without a Will, a court will apply the laws of intestacy to decide who gets what.
How Does a Will Help if I Have a Minor or Disabled Child?
A Will can determine who will care for your minor or disabled child after your death. This is especially important if you are a single parent or are estranged from the child’s other parent.
A Will can determine at what age your child will have access to property they inherit from you. You can ensure that your child will be financially supported in the future, while limiting direct access to funds when they are still young. You can also ensure that your disabled child will not lose critical benefits, such as health care through Medicaid.
What About People I Don't Want to Inherit Anything?
For many people, it’s important to say who they do not want to inherit their property. While there are some legal limitations on disinheriting your spouse, a Will lets you say both who should get your assets and who should not. We have worked with gay couples who do not want certain family members who were opposed to their relationship to inherit any of their property.
Can I Change my Will?
If you change your mind about what’s in your Will, or if your life circumstances change, you can change what’s in your Will. Depending on what you want to change, you may need a new Will or you may be able to write a simpler codicil. It’s important that any change be properly drafted and executed to ensure that your wishes will be carried out.
Does Everything Have to be Distributed through a Will?
With proper planning, many of your assets can be distributed automatically, without your heirs having to go through the probate process. For example, if you have an investment account, you can tell the bank who should get your assets upon your death. However, a Will is still useful for assets that cannot be or are not subject to automatic distribution.
Should I Draft my Own Will?
There are specific laws that govern how a Will has to be drafted and executed in order for it to be valid. These laws vary from state to state and it’s risky to rely on forms you may find on the internet.
Already Have a Power of Attorney - Why do I Need a Will?
Many people mistakenly believe that if they have a Power of Attorney, they don’t need a Will. This is not true. A Power of Attorney is only effective when you are alive. Once you pass away, your Power of Attorney is no longer valid and your agent can no longer act on your behalf.
Wills are important legal documents that allow you to make decisions now about what will happen to your property after you die. Contact CLA if you would like a consultation about a Will, a Power of Attorney or other advance planning issues.