A Will is the basic estate planning document. Anyone who wants to control how their property is distributed when they die, regardless of the amount of money they have, should have a Will; anyone with minor children NEEDS a will, regardless of their wealth. Yet it is estimated that less than 40% of all Americans has a Will. Why is this? Many regard the prospect of drafting of a Will as unpleasant. Others feel they don’t have enough money or property to justify a Will. Many people presume their property will be disposed of the way they want even without a Will. This information is designed to show that making a Will is an opportunity to ensure that you have provided for your family in a thoughtful way and that your property will be disposed of in accordance with your wishes.
A Will allows you to dispose of any property you own after your death; thus, property owned jointly, such as a house, would not pass under your Will because immediately upon your death ownership would vest solely in the surviving joint tenant. Also, property with a beneficiary designation, such as a life insurance policy, would not pass under your Will as it would automatically pass to the designated beneficiary upon your death.
To make a Will, you must have what the law recognizes as testamentary capacity. Testamentary capacity means that a person must be of the age of majority (18 years of age or older), must know the nature and extent of their property, be able to articulate a basic plan for disposing of those assets, and be able to identify family members, whether they wish to include them in the Will or not. If a person loses testamentary capacity after executing a Will, the Will is still good.
A Will is a revocable document that does not go into effect until you die. Therefore, it can be revoked, amended, or completely rewritten at any time up until you die or lose testamentary capacity.
A Will allows you to distribute your property in equal or unequal shares to persons or organizations of your choice. You can disinherit people under your Will, even children, although the full disinheritance of a spouse is prohibited in New York State. A Will allows you to establish a trust at your death (Testamentary Trust). Most often such a Trust is created in the Will to provide for the health, education and general welfare of a child. In the Will you choose the Trustee who will preside over the Trust and carry out your wishes. With a Will you can also name Guardians for your minor children, rather than letting a court decide who should be appointed. A Will also allows you to provide for stepchildren, who do not inherit any of your estate unless you specifically direct that they do so, and to provide for a presumption of survival in the event of the simultaneous death of you and your spouse so as to minimize estate tax liability. A Will also allows for the coordination of the use of the unified credit and marital deduction between spouses.
The execution of a Will is a rather formal event. The law has certain requirements that must be strictly observed at the signing. Who can be a witness to your Will is prescribed by state law, as is the number of witnesses required. How and when a testator signs is also dictated by law. Wills prepared and executed without an attorney frequently fail to comply with these requirements and fail to be admitted to probate.
If you die without a Will, you are said to die Intestate. How your property will be distributed will be decided by state law. Many people presume that the law will dispose of their property the same way they would have if they had made a Will. Sometimes that is the case, other times it is not. For example, if you are survived by only your spouse, your spouse will inherit your entire estate. However, if you are survived by your spouse and one child, your spouse will take $50,000, then split what is left over with the child. Let’s look at this scenario again, but this time assume the child is 3 years old. Further assume that you owned the family home in your name only. In this case your spouse would take $50,000, then end up owning the house with your 3 year old child. Imagine the legal complications if your spouse needs to sell the house. In a final example, let’s say you are survived by only your parents, but you are estranged from one of them. Under the laws of intestate succession both of your parents, regardless of your personal relationship with them, would take your property equally.
Although a Will is drafted in contemplation of what most of us don’t want to think about, it is also an opportunity to carefully and thoughtfully provide for your family. An unbiased, experienced estate planning attorney can confidentially answer all of your questions and assist in devising a Will that distributes your property in accordance with your wishes, provides for your family and minimizes estate taxes.