In a previous column we explained the many things you can do with a Will that you cannot accomplish without one. Nevertheless, by most estimates, fewer than half of all adult Americans have a Will. The reasons for not creating a Will are varied and often complicated. Is it because that although everyone has got to die, we harbor a secret belief that an exception will be made in our case? Is it because we think we don’t have enough assets to bother? Or is it because we think our property will be distributed the way we want it to be even without a Will? The answer to the last question may surprise you.
If you die without a Will, your estate will be distributed in accordance with New York State’s Law of Intestate Distribution. In other words, if you die without a Will, the New York State Legislature has determined how your property will be distributed. Does their plan for your property match your wishes? Let’s look at a few common scenarios.
If you die leaving a spouse and no children, your spouse will take all. Generally, most people want this outcome. But let’s say you die leaving a spouse and two children, ages 5 and 7. The law requires that the spouse receive $50,000 plus one-half of the rest. The other 50 % goes to the two minor children. The surviving spouse would need a court order to access any of the children’s money, even to spend on necessities. In effect, your surviving spouse is forced to raise the children on only half of your estate.
If a person were to die with no spouse and no children but with surviving parents, New York’s law says the parents inherit. This is usually a poor plan because the parents many soon be going into a nursing home. The money from the estate will pass to the parents and disappear into nursing home expenses. If the parents were already in a nursing home and receiving Medicaid benefits, their inheritance would most likely disqualify them from Medicaid. Is this consistent with your wishes? The law mandates a similar outcome if you were to die leaving only grandparents surviving you: one half of your estate would pass to your maternal grandparents, and one half to your paternal grandparents.
We could present a number of similar scenarios where the result is not what you presumed would happen or intended to happen. To ensure that your wishes with respect to your property are fulfilled, you should consult with an attorney experienced in trusts and estates law to consider the preparation of a Will and/or a Trust.