Why do I need a will?

  |  August 27, 2015

Often times I am asked, “Why do I need a will? Won’t my stuff pass to my family anyway?”  While the answer is yes, your assets will pass to your family, without a will issues might arise that would be avoided with the creation of a will.  For example, there might be a disagreement as to the appointment of an Administrator, the person responsible for managing your estate.  Or you might have a minor child or a child who is unreliable with managing his/her money, and because of these issues you might not want your child to receive your money outright and would like someone else to manage the money on your child’s behalf.  If you wish to avoid some of these issues, then we recommend a will.

New York law provides that any individual that dies without a will, dies intestate.  Briefly, intestate distribution is as follows:  For married couples: the first $50,000 is distributed to your spouse, and then the balance of your estate is distributed 50% to your spouse (or all to your spouse if you have no children) and 50% to your children, to be shared equally.  For single individuals: Your estate will pass to your children, if applicable, or to any living grandchildren, if applicable.  If not, then your assets will be distributed to your parents, if living, and if not, to your living siblings, and if none, any living nieces or nephews.  (For more information on the laws of intestacy, please see our Resources for Families page.)

The above breakdown of assets may not be how you want your assets to be distributed.  Maybe you want to donate to a charity or make sure that your child(ren) from your first marriage are provided for–then you need a will.  Further, you may want to leave specific items to certain individuals, such as your jewelry, artwork, antiques, furniture, cars, etc., a will ensures that these distributions are made.

For those individuals with minor children, a will plays a vital role in the nomination of a guardian for any minor children.  If both parents of a minor child die without a will, then the court is responsible for appointing the Guardian for the children, based on the best interests of the child.  A court proceeding can be complicated, long and expensive—using the estate’s resources.  In addition, who you might consider to be the best guardian for your children, might not end up being the same person that the court appoints.  Therefore, it is better to plan ahead and create a will in order to avoid court fees and a period of uncertainty for your child.

In addition, any assets left to your minor child will be distributed to that child at age 18.  Perhaps you think this is too early of an age for your child to receive his/her inheritance.  If this is the case, then your will can provide that your child’s share be held in trust and used for that child’s benefit until that child reaches an age that you feel it is more appropriate for him/her to receive his/her inheritance.

Last, a will determines who will be responsible for administering your estate.  This is a personal choice and should be someone that you trust to carry out your wishes.  If you are married and do not think your spouse is capable of managing your affairs upon death, then a will is necessary.  If you no will and no spouse, but you have children, each child has an equal right to administer your estate.  Depending on how well your children get along, this equal right can either be a non-issue or create familial strife.  Or, if you have no family, then you might request that a trusted friend be responsible for carrying out your last wishes.

In the end, a will ensures that your last wishes are tailored specifically to your goals and concerns.  It provides assurances that the right people are appointed to carry out those wishes.  So think about those goals and make a will.


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