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Make an investment for the future with a will
From New York State Bar Association
Here is something to think about – if you die without a will, a stranger will be appointed by a judge to distribute your assets. Not only that – if both parents were to die without a will, the court would appoint someone in your family as a guardian to care for your children. Instead of letting the state make decisions for you, a properly drafted will ensures that your intentions for your family and property will be carried out exactly the way you would want them to.
Many people think that a will is only for those who want to set up trusts or save on estate taxes. That is not the case. Not only is it essential to ensure that your familial and property wishes are accounted for, it’s important to choose the person you want to handle your estate so as to avoid certain fees imposed when a judge chooses the administrator. If you die without a will, the court will appoint an administrator, who typically is a relative, but could be a non-family member, to distribute your assets in a manner set by law.
For example, by law a living spouse would get the first $50,000 and one-half of the balance of the property and your descendants share what’s left. If there are no descendants, the spouse gets everything or vice versa if there is no living spouse. If you are unmarried and have no children, then your parents would inherit your estate. If you are unmarried and have no children or living parent, then your siblings or closest relatives would. Allocating your property and assets in this manner may not be as you intend. A properly drafted will enables you to direct the distribution of these assets as you wish.
Consider your children
Another thing to consider is your children. If you don’t have a will, a judge would appoint a guardian to manage your minor child’s share of your assets. While the court would likely appoint your spouse, it is not guaranteed. The will should name a guardian for each minor child. While the selection is subject to review by the court, the court typically grants your stated wish. Further, if your assets are needed to pay for your child’s education, clothing or other living costs, then prior approval from the court is necessary. A judge would also require the guardian to file an annual accounting of income and expenditures.
These types of problems can be avoided with a properly drafted will. When drafting a will, you select an executor whom you want to manage your property. This executor can be a relative, friend, lawyer or even a bank or trust company that specializes in the handling of estates. This choice is only yours if you draft a will. While you can pick up some printed forms from a book or the internet and fill them out in your own handwriting, you may run the risk of missing something.
This could result in having an invalid will as wills have formalities in their execution that are fixed by state law. An invalid will would have the same result as not having a will, meaning that your assets could end up being distributed under state law. Hiring an attorney can help avoid these kinds of problems. Making the best plan and best will requires knowledge and expert advice. For instance, are you aware that a spouse has a right to a car and certain other items, in addition to a large share of your property no matter what your will may direct?
Did you know?
There are plenty of other examples of the nuances in creating a will that a lawyer can help with. Did you know that property held jointly with someone else may not be distributed by a will? Or that life insurance may or may not be distributed by will, depending on who is named as the beneficiary? The same can be said of individual retirement accounts, pension plans and other assets.
Before making a will, you should know how estate and income taxes impact you and your assets. Federal and New York tax laws frequently change so you may not be as up-to-date with them. You also may be unaware that you can choose which of your beneficiaries pay the estate taxes. If you do not, the tax burden will be distributed among your beneficiaries. With the help of an attorney, you may be able to reduce or eliminate the tax burden on your estate and leave more to your beneficiaries.
Making a will is one of the most important investments you can make. The best estate plan recognizes that your will is only part of the equation. Check with an attorney to learn what’s appropriate for your circumstances.
*For more than 135 years, the New York State Bar Association has shaped the development of the law, educated and informed the profession and the public, and responded to the demands of a changing society. Headquartered in Albany and with a membership of more than 74,000 lawyers, representing every town, city and county in the state, the New York State Bar Association is the oldest and largest voluntary state bar organization in the nation. Public information resources are available at www.nysba.org.