Five Myths About Wills

April 30, 2024

Many people do not create wills because they have misconceptions about how much they cost to create or how complicated they are to probate. However, the fact of the matter is that in most cases, wills are not that complex to create and legalize. Taking the time to create one brings relief to your loved ones and peace of mind to you knowing that everything is in place.

If you die intestate – meaning without a will – it is hard on families who must try to recreate what they believe their loved one would have wanted in terms of asset distribution. Read on to learn the truth about creating a will, what happens when you don’t have one, and the tasks and responsibilities of the will’s executor. 

1. If someone dies without a will, the state gets everything.

If you die without a will, you are called “intestate,” and state laws govern “intestate succession.” In New York, if you are married with no descendants and you die without a will, your spouse gets everything. If you are married with descendants – children, grandchildren, or great-grandchildren – your spouse will inherit the first $50,000 of your intestate property plus one-half of the balance. The descendants get the other half. And if you have descendants but no spouse, the children inherit everything. 

In rare cases where no heir can be found, after a thorough search, your property will go to the state.  In this case, the money will “escheat” to the state. 

2. It takes years to probate an estate.

The probate process is when the executor collects assets, pays off debts, sells property and distributes assets in accordance with the instructions set forth in a will. Most states don’t take years to go through the probate process. Jointly-owned properties do not need to go through probate. Neither do assets such as IRAs and life insurance policies that have designated beneficiaries. 

The average time to probate a will in New York is 9 to 18 months. New York state law allows creditors seven months to file claims, and this takes up much of the time period. Notice to the creditors is deemed to start when a local paper runs a notice of the probate proceeding. When that period has terminated, the estate can be closed as soon as the personal representative has gathered all the assets, paid debts, and taxes. As a practical matter, it usually takes a few more months to get everything in order. But most estates are finished within a year.

What causes some probate cases to drag on for years, then? There are three main causes: will challenges, large-value estates, and ongoing income (such as from music or movie royalties). 

3. Probate is extremely expensive.

This is simply untrue. First of all, not all wills need to go through probate. Generally, only assets owned in the deceased person’s name alone must go through probate. And if the value of those assets is less than $50,000, the family can take advantage of probate shortcuts, which are less expensive than regular probate.

But even if the estate requires formal probate, costs are likely to be less than 5% of its value. Of course, if someone contests the will or accuses the executor of misconduct, costs can be significantly above this range. The estate will have to hire an attorney to defend it, and if the dispute goes all the way to trial, it will cost significantly more money.

4. Creating a will is too complicated and costly.

Creating a will does not have to be complicated or expensive. There are affordable options for all estates, large and small. Making decisions about the fate of your assets shouldn’t be taken lightly, and you should absolutely take the time necessary to figure out what you want. 

The steps in creating a will can essentially be distilled as follows:

  • Decide what property to include in your will.
  • Decide who will inherit your property.
  • Choose an executor to handle your estate.
  • Choose a guardian for your children.
  • Choose someone to manage the children’s property.
  • Make your will.
  • Sign your will in front of witnesses.

Long Island will attorney can help you understand the various options for creating a will that meets your personal needs.

5. I am entitled to be the executor of my parent’s estate.

The executor is named by the testator, the person writing the will. Being an executor can be a big obligation, and the testator should carefully consider an appropriate executor. 

An executor:

  • Files the will with the court
  • Notifies banks, credit card companies, and relevant government agencies about the death
  • Decides what kind of probate is necessary
  • Represents the estate in court
  • Sets up a bank account to deal with bill paying and receiving incoming checks 
  • Files an inventory of the estate
  • Pays the estate’s debts and taxes
  • Maintains the property until final disposition
  • Distributes assets, and
  • Disposes of the remaining property

If the deceased person named an executor in his or her will, the court will appoint that person unless there’s a very good reason not to. If there isn’t a will, or the person named as executor in the will cannot or does not want to serve, then the court will appoint someone. The court looks to state law, which sets out a priority list for who the court should appoint. 

Contact a Long Island Will Attorney

Believe it or not, the majority of New Yorkers pass away without a will in place. An estate plan that includes a will or other legal vehicle such as a trust allows you to decide ahead of time where your money and assets will go in the event of your death. A solid plan can help you avoid having your assets slashed by estate and other taxes, reducing the share that goes to your loved ones when you pass away. Making your wishes known reduces family disputes and will challenges. Let Davidow, Davidow, Siegel & Stern, LLP help you with all your estate planning needs. Contact us today.