Spotlight on Elderlaw; Basic Estate Planning: Avoiding “Intestacy” with a Last Will and Testament

by Nancy J. Brady, RN, Esq.

A Last Will and Testament, commonly known as a “Will” is documentation of one’s wishes as to how his/her possessions and assets should be distributed after death. While almost everyone is familiar with the term “Last Will and Testament”, surprisingly enough, not everyone has a Will in place, or know why it is important to their family for them to have one.

First of all, it is important to know what happens if you die without a Will in place. When a resident of New York State passes away without having completed a Will, this is known as “intestate”.  If that person has assets or property in his/her name with no joint owner or beneficiary designation, there is a statute in the law that governs how those assets should pass (EPTL, Estates Powers and Trust Law).

Part of that statute designates:

  • If the decedent leaves a spouse and no children, spouse takes all.
  • If the decedent left a spouse and children, the surviving spouse is entitled to the first $50,000 and one half of the balance of the value of the estate.
  • If there is no surviving spouse, and the decedent has left children, children take all.
  • If an unmarried person dies, with no children, the decedent’s parents inherit, if there are no parents surviving, the decedent’s siblings inherit.

The statute goes on to delineate beyond those relationships, to the furthest extent of relatives in line to inherit being first cousins once removed (that would be your parents’ first cousins). Should a person have no relatives surviving including a spouse, or descendants of their grandparents, after a search for those relatives, such an estate will pass to New York State.

Many people prefer a different allocation for the distribution of their estate. For example, commonly, spouses want to leave each other everything.  Perhaps an unmarried person who has no children, does not want elderly parents to inherit – especially if the elderly parent has a taxable estate, or is receiving government benefits to finance nursing home care.  Single, childless people may prefer to leave a greater proportion to and nephews, which is also varying from the plan set forth in the statute.

Another important reason to complete a Last Will and Testament is for parents of young children. Parents of minors should designate in a Will persons to be named as guardians for the minor children, and trustees to manage assets.  In the event minor children are left without parents, and there is no guardian named by the decedent, a court appointed guardian will be required.  In that case, court approval is required before any expenses can be paid on behalf of the minors.  Additionally, if both parents predecease the minor children, it is important to name someone the decedent prefers to have custody and raise the children.

Parents of disabled children, or adult children under a disability, can leave that person’s share in a trust within the Will document. The purpose of this type of trust is to shelter the assets left to a disabled person so that government benefits aren’t jeopardized.

Having a Will in place involves choosing someone to be the “Executor”, or responsible party who has the duty of making sure your wishes are carried out. The Executor can be a relative, friend, attorney, or bank or trust company.

Having a Will in place is important for every adult, and is the first step towards estate planning. Assets passing through the Will or through intestacy will be subject to probate, possible challenges, and the associated delays and fees.  For more thorough estate planning, there are various types of trusts that can be used to accomplish individual goals based on one’s particular circumstances.

While some people choose not to complete a Will, or to download a form from the internet, the best practice is to consult with and have an attorney complete the Will. A Last Will and Testament has certain requirements in order to be valid in New York State.  A Will that is not completed in conformation with the requirements, including witness designations and execution formalities can result in your estate being distributed according to the statute of intestacy, which may not be what you intended.  You should consult with an attorney to see just how your estate will pass, and how your Will should be drafted.  Wills should be reviewed every few years, to make sure the document will still have the results you have in mind.

This article is presented for information only, and is not intended to replace individual legal advice.  The attorneys at the office of Brady & Marshak, LLP can be reached at 1-718-738-8500.