Estate Planning Answers

Last month in this column we reviewed the process by which a New Yorker's estate passes when there is no Will in place. In this article we will discuss the benefits of having a Last Will and Testament in place.

A Last Will and Testament, when properly completed and supervised by an attorney, can meet many estate planning goals that cannot be met if there is no Will in place. Some advantages to having a Will include the ability to change the estate plan since the rules of intestacy will not apply; creating a Will with an attorney is relatively easy, customizable, and can be changed; and a Last Will and Testament can be drafted to make provisions for minor children or disabled loved ones who either could not, or should not inherit outright.

As you may recall from the last column, in NY, the intestacy statute provides who will inherit a decedent's property (if no beneficiary or joint owner is named on said property). Often people wish their estate to pass differently than the intestacy statute delineates. For example, a married person often wants a surviving spouse to inherit the full value of an asset titled in the decedent spouse's name alone. Without a Will in place, the intestacy statute provides for the surviving spouse to inherit the first $50,000.00 and half of the remaining value of an asset, and children to divide the other half. A Will can be drafted to change this unwanted outcome, leaving the full value of the asset to a surviving spouse.

Additionally, by completing and executing a Will a testator can partially or fully disinherit persons as well. People often have reasons to leave a child of theirs out of the Will, for example if that child is estranged or has a substance abuse issue. Alternatively, one's child may not wish to inherit for the child's own estate planning reasons, particularly if they have large estates and their own estate plan in place.

If a decedent leaves a disabled child behind any government benefits received by the disabled child could be jeopardized if there were no Will, and the disabled child inherits via the intestacy statute. A properly drafted Will could include provisions for disabled individuals by including certain testamentary trust clauses, leaving government benefits intact for the disabled child.

A valid Last Will and Testament can include persons who are not blood relatives, and/or charities if that is an important part of one's estate plan. Often clients have a beloved niece, nephew or friend they would like included. Sometimes a person may wish to include a bequest to a charity, which can be accommodated in a Last Will and Testament.

Keep in mind, however, when a person dies with an asset titled in her name alone, with or without a Will, surrogate's court involvement will be necessary. For those estates in which the person died without a Will, a process called "estate administration" will be needed before the assets can be distributed. For estates in which there is a valid Will, the process is called "probate". Both processes involve the filing of certain documents with the surrogate's court in the county in which the decedent resided. Estate administration can involve proving the validity of the decendent's family tree, perhaps searching for lost relatives, with associated costs for court filings, genealogists and attorney's fees. Probate can involve proving that a Will is valid, can be open to Will contests if any party is left less than they would have inherited had there been no Will (as per the intestacy statute). So, this discussion has focused on why it is preferable to have a Will in place, rather than having no will in place when an individual dies with assets titled in her name alone. Our next column will focus on estate planning with "testamentary substitutes" to avoid estate administration proceedings or probate.

Nancy Brady is a partner in the firm of Brady & Bader LLP. The attorneys can be reached at 1-718-945-7777. The information in this article is general information and is not intended to be legal advice. You should consult with an attorney for specific legal advice.