NEW YORK WILLS & TRUSTS ATTORNEY
Wills and trusts are ways of passing property from one generation to the next.
Why you need a will
There are a number of reasons why you need a will. First, to leave your property to your loved ones in the manner and proportions you choose. Second, to choose a person or persons you want to handle your estate. Third, to ensure that your estate will not have to pay for an administration bond (this may be necessary if the court chooses a person to administer your estate). Fourth, to have any estate taxes allocated among your beneficiaries according to your wishes. Last but not least, to appoint a guardian or guardians for your minor children.
If you die without a will, your property will be distributed according to the rules of intestate succession (“intestate” simply means “without a will”). Your spouse, if he or she survives you, takes the first $50,000 plus half the balance, and your descendants share the rest. If you leave no spouse, your descendants take all. If you leave no descendants, your spouse takes all. This scheme may or may not suit your intentions.
In your will, you can name one or more executors. The executor is the person who handles your estate. He or she carries out the instructions contained in your will. The executor gathers the assets of the estate, and distributes them according to your instructions.
If you die without a will, the court will appoint an administrator to handle your estate. This may or may not be the person you would want to have this responsibility. Also, the court may require the administrator to post a bond to guarantee the proper handling of the estate. The cost of this bond comes out of the estate itself.
In other words, not having a will could cost your heirs money. Depending on the choice of administrator, it may also cause family disputes. No one wants to leave family problems as their legacy.
Not every estate is large enough to incur federal or state taxes. If yours is, then you will want to provide for the payment of these taxes. If you die without a will, the taxes will be allocated among your heirs by statute. Having a will lets you direct how taxes are paid.
If any of your children is under eighteen at the time of your death, the court will appoint a guardian to manage his or her inheritance. If you die without a will, this may or may not be the person you would choose.
Also, without a will, the guardian is limited in the investments he or she may make on the child’s behalf. This may result in your child’s inheritance not growing at the proper rate. This can diminish your child’s share of your estate. The court may also require the guardian to post a bond. The cost of the bond also comes out of your child’s share of your estate.
Even more important, the court will appoint a guardian to take custody of your child until he or she turns eighteen. This may or may not be the person you would wish to raise your child in your absence. Naming a guardian or guardians in your will can avoid this consequence. While the court is not bound by the choice of guardian in the will, it usually defers to that choice.
Having a will ensures that your minor child – and his or her property – will be cared for as you would wish.