If You Haven't Written a Will, New York State Has

Where there's a will, there's a way

Talking to lawyers about wills, you learn three things: 
  1. You don’t know much about wills
  2. What you don’t know can’t hurt you after you die—but it can certainly hurt your loved ones
  3. So make a will—now
“Do it,” urges Anita Rosenbloom of Stroock & Stroock & Lavan. “We’re all mortal, including young people.”
She tells of a man with no history of heart disease who died of a heart attack, leaving a 6-year-old son and a widow who was not a U.S. citizen. “While the woman and the son were both grieving the loss of him, she had to hire all sorts of lawyers, and there were various unintended accounting costs and tax consequences. If he had had a very, very simple will, all of this would have been avoided.” She sighs. 
You never know which details will cause problems.
“If your sister is your only relative,” says Laurie Ruckel of Loeb & Loeb, “you may not think you need a will. But you need to think: ‘What if my sister doesn’t survive me? Am I OK with it going to her kids?’ That’s where the law says it would go.” 
“What people generally don’t realize,” says Carole Bass of Moses & Singer, “is that if they die intestate—meaning without a will—their state legislature has written an estate plan for them.” 
She explains the New York model: “If you die leaving a spouse and children, your spouse will not have access to your entire estate. The first $50,000 plus half of the balance will pass to the spouse and the other half will pass to the children. If the children are minors, this will require a court guardianship. If you die without a surviving spouse or descendants, your entire estate will pass to your parents, if one or both are living. Also, keep in mind that if you are cohabitating or otherwise in a non-marital relationship, your partner does not have rights under intestacy.”
Says Ruckel, “Usually there’s something you want to do that the law wouldn’t otherwise provide. You may have young children. You may want to control who the guardian is who will live with them. You may want to control what ages they get their property. You may want to choose a trustee who invests the property for your children and pays them the income or principal. If you have people who shouldn’t have the money in their own hands, you want trusts.”
That may sound like a lot to consider, but one set of kids is child’s play compared to some situations.
Notes Bass, “Wills are especially important in the case of a blended family. There may be complications in leaving property outright to the surviving spouse, because when one spouse dies, the survivor can change the estate plan.” 
Families can be complicated—and combative. When people aren’t happy about a will, they often go to court. So, Ilene Cooper of Farrell Fritz advises, “In order to plan properly, the pitfalls—those issues that may generate litigation—should always be considered. 
"Those may include the impact of treating one child differently from another, the second-marriage situation, the selection of an executor or trustee, the division of tangible property—including works of art—the disposition of realty, or planning for a family business.”
All these situations can get ugly. And so, says Cooper, you may want to consider a no-contest clause, directing that beneficiaries will forfeit their inheritance if they object to the will.
“I don’t think I can emphasize this enough,” says Rosenbloom. “If you don’t have a will, you’re potentially leaving a mess, and foisting this responsibility on your loved ones at the worst time.”
Don’t Forget
  1. Specific and/or heirloom bequests Rosenbloom: “One of the things that happens a lot, even with people who have sophisticated counsel, is they don’t think about leaving a bequest to someone who’s been there for them. It doesn’t even have to be a lot of money or a very valuable object.” 
  2. Pets New York law allows the creation of a trust for pets. 
  3. Financial assets Keep up to date with the balances. Rosenbloom: “You may leave an IRA to one child and a CD to another. But what if someone used one of them to pay your expenses while you were ill for a year? One child will get substantially less.” 
  4. Digital financial and property records Ruckel: “Put specific authorization in wills to access digital information.”
  5. Store the original copy of the will safely If it’s not found, the state will presume it was revoked.

Other Featured Articles

Estate Planning & Probate Icon Estate Planning & Probate

Who Should Be Your Special Needs Child's Trustee?

New York legal experts often recommend professionals over family members

Estate Planning & Probate Icon Estate Planning & Probate

What Are the Benefits of a Charitable Remainder Trust?

How and why to have an estate planning attorney set one up in Utah

Estate Planning & Probate Icon Estate Planning & Probate

What to Know About Estate Plans in California

Even with Alzheimer’s, you can still have the capacity to complete one

View More Estate Planning & Probate Articles »

Page Generated: 0.067090034484863 sec