Everyone Needs a Will

Everyone Needs a Will

Last Will and Testament

Considering this is my first post, not about myself, I figured I would start at the beginning…A WILL.  This is the introduction post into a multi-part series of different types of Wills and Testamentary (death) documents.

What is a Last Will and Testament?

Black’s Law Dictionary defines a will as,

“An instrument, executed with the formalities of states statutes, by which a person makes a disposition of his real and personal property, to take effect after his death, and which by its own nature is ambulatory and revocable during his lifetime.”

Black’s Law Dictionary 1102 (6th Ed. 1991).

In very simple terms it tells the Court (or any meddling family members), that you have thought about this long and hard and you have decided that whatever the documents says is the outcome you want for all that stuff you accumulated during your life. It also tells those same interested parties, what you want to happen to all those things that you have control over.

What Doesn’t A Last Will and Testament Do?

IT DOES NOT TELL ANYONE HOW YOU WANT THOSE ITEMS WHICH PASS BY DEED (YOUR HOME), BY PAYABLE UPON DEATH CONTRACTS (LIFE INSURANCE), OR BY BENEFICIARY STATUS (IRA/401(K)s.

I am not sure if it’s me, but I learn better when I understand the repercussions of failing to do something.  So to follow that learning technique here is what happens, in New York, if you fail to prepare a properly drafted and executed Last Will and Testament – your estate is said to enter Intestacy. Intestacy is just a fancy term for, since you failed to provide testamentary distribution directions, we as the State of New York will do it!

New York Intestacy Law

In New York it is as follows:

  • You die with a surviving spouse and no children – he/she gets your entire estate.
    • The amount is inherited outright, so, if your wife then marries the pool boy guess where the money is going!
  • You die with a surviving spouse and children – the surviving spouse gets the first $50,000 and then 1/2 of the remaining estate…your children get the other half (they receive it equally).
    • The pool boy problem;
    • Children share is inherited outright by them at the age of 21…bye bye control!
  • You die with no surviving spouse and just children – they get it all.
    • Children buying Lambo problem

The intestacy rules go even deeper to cover further and more remote situations; if there is an interest I will post them in the comments.  One thing you must remember is that intestacy only covers those assets not covered by a beneficiary status, dead or payable upon death contract.

What if I like the Intestacy breakdown? You still need a will!

  1. Intestacy leads to longer probate periods because the court makes you find ALL possible distributees;
  2. Intestacy does not provide for trusts for young adults (who wants their 22 year old with access to $250,000?);
  3. Intestacy does not provide for guardianship for young children (do you want your spouse’s weird 1st cousin to fight for custody?);
  4. Intestacy does not provide for special need trusts.

I hope this inspires just one person to go get a Will – after of course you read my later posts on the different types of Wills!

One Response to Everyone Needs a Will

  1. Well, not doing a carefully thought out will to clearly define the destination of one’s own assets really is a mistake. I see that the consequences can be more complicated than I had thought before, since a third party ends up getting involved when there is no will to set the rules. I believe that everyone should consider doing a will as soon as possible – we never know when our family will need it.

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