The Importance of Creating a Will in New York State
A will is the cornerstone of any estate plan in New York state or elsewhere in the United States. But people often put off creating a will or contacting an attorney to help them with one. In fact, according to Caring.com’s 2023 Wills and Estates Planning Survey, nearly 40% of Americans have no will or estate planning documents.
Some people feel they don’t have enough assets to require them to create a will. Others do not understand that estate planning documents allow you to put together directives that deal with healthcare, guardianship, and other legal matters. Still, others are extremely reluctant to face their own mortality by creating a will and the attendant legal documents. So why is creating a will important?
Why Creating a Will Is Important
A will is a legal document in which a person specifies how his or her assets will be distributed at death. A will should identify an executor whose responsibilities will include ensuring that creditors are paid and that beneficiaries receive what they are provided for under the will. In New York State, the substantive law of Wills is governed by Article 3 of the New York Estates, Powers and Trusts Law (“EPTL”). The law provides that “any person 18 years of age or older, of sound mind and memory, may dispose of his or her assets by Will and exercise a power to appoint such property.” EPTL §3-1.1. To be valid, a will must be in writing and signed by the testator in the presence of at least two witnesses who do not receive anything under the will.
The major reason to create a will is to have control over how your assets will be distributed and/or divided upon your death. Do you want most of your money to go to a special needs child? Or do you want it to go to a charity that means a lot to you? Do you want to recognize a neighbor who cared for your pets, or a friend who was always there for you? Without a will, the state will decide how to divide your assets. This situation is called being “intestate.” Each state has a statutory scheme to deal with people who are “intestate” or have no will.
In the simplest terms, this is how property distribution will happen in New York in the absence of a will:
- If the decedent has a spouse but no children, the spouse inherits everything;
- If the decedent has children but no spouse, the children inherit everything;
- If the decedent has a spouse and children, the spouse inherits the first $50,000 plus half the balance, and the children get the rest;
- If the decedent has no spouse or children but has siblings, the siblings inherit everything;
Some people agree with this statutory scheme. But others do not, and they want to take more control of directing where their assets will go upon their death. Here are several examples of areas where you can direct your assets to go.
Perhaps you have a child who has mental or physical challenges, and you worry about how they will manage when you are gone. A will is a basic estate planning document that can help you provide for your loved one with special needs after you pass, and within your will, a trust can be established to protect the assets you leave to them. Making a special needs trust includes appointing someone you rely on to act as the trustee. The trust can pay for things that public benefits such as Medicaid do not cover, such as education and daycare. At the same time, a trust preserves your loved one’s ability to qualify for public benefits.
A charitable trust is another arrangement that you can create in your will that is designed to benefit a charitable organization. These types of charitable trusts can provide income to the charity or allow it to retain assets for a specific period before donating them.
Make A Will As Soon As Possible
Many people say they plan to delay making a will until they experience a health diagnosis or concern. However, you may be putting your loved ones at great risk if you delay making a will. Avoid waiting until your health begins to deteriorate. Having a will and estate plan in place ahead of time can make navigating health challenges easier. If you prepare for the future, you won’t have to make hasty last-minute arrangements or risk passing away without a will.
Executor, Power of Attorney, and Guardianship
Your will should name an executor who will ensure that the will’s directions are properly carried out. You may also name a backup executor.
A power of attorney (POA) is also an important part of your will and estate documents. It serves as the designation of the person who will make decisions on your behalf if you cannot do so. Someone who has a power of attorney for you can manage financial and other matters for you. If you develop a disability, having a power of attorney in place can help you preserve your autonomy and forestall having the court appoint a guardian to make decisions on your behalf.
Your will can also name a guardian for your minor children.
Contact a Long Island Will Attorney
It’s important to work with an attorney to create a will that protects your loved ones. In addition to helping you create a will, a qualified Long Island will attorney can assist you with making a comprehensive estate plan. This could include executing power of attorney documents and other directives, as well as setting up trusts.
Davidow, Davidow, Siegel & Stern LLP has been providing legal services for over one hundred years. Contact us today for all of your elder law, estate planning, probate and administration, and trust planning.