If You Haven't Written a Will, New York State Has
Where there's a will, there's a way
on November 1, 2017
Updated on June 17, 2022
Talking to lawyers about wills, you learn three things:
- You don’t know much about wills
- What you don’t know can’t hurt you after you die—but it can certainly hurt your loved ones
- 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.”
The Law in New York City and the State of New York
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 last will and testament.
“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.”
For more information on this area of law, see our overviews of estate planning, wills, trusts, and probate and estate administration, or reach out to an estate planning attorney or law firm for legal advice.