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  • Steven Maffei

Do You Need a Will?

Most people ask the question – Do I need a Will? The answer is yes. A Will is the document that states how your assets will be distributed when you die. Unless your assets already have designated beneficiaries, you will need a Will to ensure that your assets are distributed according to your wishes even if everyone already knows what those wishes are!

What happens if you die and do not have a Will and your assets do not have beneficiaries? The State of New York has already determined under Estates, Powers and Trust Law §4-1.1 how your assets will be distributed. It sets out a strict formula of distribution that must be followed. Your assets can only go to your blood relatives or your spouse. If you are married, all of your assets may not automatically go to your spouse.

In addition, all of your assets must be divided equally among members of a class of distributes. You do not get to proportion your assets the way you would like. For example, if you have 2 brothers and 1 sister and they are entitled to your entire Estate, then they each receive 33 1/3%. Also, estranged family members or members you may have never even met may be entitled to a share of your property.

With a Will:

1. You can leave money and property to friends.

2. You can leave money and property to charities.

3. If you have minor children, you can name who you want to be their guardians.

4. You can control how the money that is left to minor children is used. (For example, for their health, education and maintenance.) You can state at what age they receive any money or property. If nothing is done, they would receive it when they turn 18. Many people do not want an 18-year-old to come into a substantial amount of money because they are not mature enough to manage it and they could fall victim to someone looking to take advantage of them.

5. You can put money in a trust and control how it is used after you are gone such as a trust which is used solely for the college tuition of your loved ones.

6. You can choose who will be the Executor of your Estate (The person in charge of distributing your assets).

7. You can waive the requirement that your Executor must post a bond.

8. You can disinherit someone who would have the right to receive property or change the percentages of what a person would receive.

9. You can state your intentions so everyone will know what they are and there will be no confusion among your Executor and beneficiaries.

The procedure to settle your Estate is generally easier when you have a Will. Your Executor will petition the Court to grant him or her the power to be the Executor of your Estate. This is called a Probate Proceeding. Certain people whose rights are affected by your Will have a right to object to the validity of the Will. The burden is on them to prove to the Court that your Will is not valid.

If you do not have a Will, the person who wishes to be in charge of your Estate, known as the Administrator, will have to commence an Administration proceeding. The Proposed Administrator has the burden of proof to show why he or she should be appointed. The Proposed Administrator may also have to post a bond. An Administration proceeding is generally more time consuming and more costly than a Probate proceeding.

We recommend that you have a Will even if your assets have beneficiaries attached to them. You may acquire new assets and forget to name beneficiaries. You may change banks or liquidate a stock account hold the money in cash with a different institution. The beneficiary you have listed may predecease you. For example, let us say you took out a life insurance policy when you first left school and began working. You named your parents as beneficiaries. Years go by, you get married, and your parents pre-decease you. If you die and nothing was done, there is now no beneficiary listed on the policy. A Will ensures your assets go to your intended beneficiaries.

There are many do it yourself ways to draft your Will. We do not recommend that you attempt to develop your Estate plan on your own. An incorrectly drafted document could result in not having your assets transferred as you desired. You may have other issues that need to be addressed that only an experienced estate planning attorney will recognize and discuss with you. A Will prepared with the assistance of an experienced attorney saves your Estate and loved ones’ unnecessary time and expense.

The preceding is for factual information only and is not intended to be legal advice. You should never attempt to address any of the issues raised here without the assistance of an attorney.

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