No Will? State may decide

September 27, 2006

The problem: My father is 86, my mother, 84. My father doesn’t think he needs a will because my mother will inherit everything when he dies. We’re concerned that he does need a will to ensure that everything goes smoothly upon his passing. Is there a way to spell out what will happen when he dies?
The rules: Everyone should have a will – regardless of age, health or wealth – as a part of a comprehensive estate plan. Without an appropriate plan, a person’s estate could pass through “intestacy,” which means New York state law would determine how the estate is distributed.
Strategy: Your parents should create a comprehensive estate plan, which may include joint ownership, beneficiary designations and wills.
How it works: It may be true that your father’s assets will pass to your mother immediately upon his death. But that depends on how he owns his assets. For instance, if your parents own their assets together as “joint tenants with right of survivorship,” those assets will go directly to the surviving spouse automatically when one of them dies. This also is true if your parents have named each other as beneficiaries on their “in trust for” accounts, retirement accounts, annuities and life insurance policies.
However, if your father owns any assets in his name alone, without a designated beneficiary, those accounts and assets will need to pass through probate via the instructions in his will. A will controls the disposition of probate assets upon death.
In their wills, your parents can name their beneficiaries, appoint an executor to administer their estate and provide for the payment of funeral expenses and/or taxes. If any of their children have disabilities, their wills also could create a special needs trust for that child’s benefit.
Result: With proper planning, your father can dictate how his assets will be distributed after he dies, and his family can have certainty in knowing how his estate will be distributed.
Written by Karen E. Klein, Newsday, 9/23/06.