Jodi B. Zimmerman, Esq.
Sichenzia Ross Ference Kesner LLP
What You Should Know About Creating A Last Will & Testament
First: Why You Need A Will and What happens If You Die Without A Will?
⇒ It’s important to have a Will so that your family/friends/business associates don’t spend the next decade fighting, in court and possibly in person…with fists.
- This can get even uglier if you have young kids, or lots of money and property, or both.
⇒ If you die without a Will, in most instances, your property will be distributed among your closest surviving relatives, including assets and custody over minor children. (“succession laws.”)
⇒ Your estate will still have to go through the probate process (but called Administration), and “intestacy laws” kick in to determine who gets what.
⇒ A few examples of New York intestacy laws:
- If you are survived by
o your spouse only = everything you own will go to your spouse.
o your spouse and one or more children = your spouse will receive $50,000 and ½ the rest of your estate, your remaining estate will be given to your children by representation. No consideration is given to special circumstances (i.e. infirm child).
Second: Decisions You Have To Make
- Who Gets Your Possessions?
⇒ You can leave your “stuff” to anyone you want.
⇒ A beneficiary can be a family member or members, friends, pets (via a human guardian), strangers, organizations, or institutions.
⇒ By identifying who gets what, you’ll relieve some of the stress your family will have to face when settling your estate. If not, your heirs will have to make these decisions.
- Who Gets Nothing?
⇒ The people who serve as witnesses to the signing of the Will.
⇒ Legally, anyone who witnesses the signing of a Will can’t be named as a beneficiary.
- Who Handles Everything When You’re Gone?
⇒ The person responsible for making sure everything you want gets done is an “Executor” .
⇒ The person you name as your executor is responsible for paying any debts or taxes on behalf of your estate and making sure the people who are supposed to inherit your assets actually do.
- Who’s Taking Care of Your Kids and Dependents if You Die?
⇒ Choosing a guardian is usually the toughest decision to make when creating a Will.
⇒ If you’re divorced, it’s probably your ex-spouse.
⇒ If you don’t have a spouse or your ex-spouse isn’t an option, then you’ve got to ponder.
⇒ Odds are you already know who you want to serve as guardian but you have to make it legal.
- Who Handles the Money and Assets You Leave For Your Kids?
⇒ The guardian of the estate is tasked with managing your child’s financial well-being.
⇒ There may be a significant amount of money involved, especially if you have life insurance, and it’s the guardian’s duty to always keep your child’s best interest in mind when making financial decisions.
⇒ A court will name a guardian if you don’t.
Third: Remember, Your Will, Your Say
- What Property Can You Include in a Will?
⇒ Actual property, such as real estate, land, and buildings can be passed through your Will.
⇒ Cash, including money in checking accounts, savings accounts, and money market accounts, etc.
⇒ “Intangible personal property” such as stocks, bonds, and other forms of business ownership, as well as intellectual property, royalties, patents, and copyrights, etc…
⇒ “Unproductive property” such as cars, artwork, jewelry, and furniture, etc…
- What Happens to All the Leftovers?
⇒ The residuary estate is all the extra stuff you don’t think is worth listing out separately.
- Example: Stereo, power tools, photo albums, etc…
- For these miscellaneous items you designate a “residuary beneficiary” who takes charge over all the remaining assets you don’t leave to named specific beneficiaries.
- What Property Can’t You Include in a Will?
⇒ If you don’t own something outright you can’t give it to someone when you die.
- Example: Any property you own equally with someone else (“joint tenancy”), any trusts, retirement plans, stocks, bonds or insurance policies that clearly state a beneficiary.
Fourth: Keep Your Eyes on the Prize
- You Created Your Will, Are You Done?
⇒ It’s a good idea to periodically review executor, beneficiaries, etc. to make sure the person/people named are still the ones you want to handle things or get money or property.
⇒ Things change over the course of your life–marriage, kids, divorce, etc…–so try to keep everything current.
- You Created Your Will, Where Should You Keep It?
⇒ In your home in a personal safe, a locked filing cabinet, or any place you feel comfortable.
⇒ Don’t Store Your Will in a Safe Deposit Box
o Even if your survivors are authorized to access the safe deposit box–the bank will likely require a Letters Testamentary or court order to access the box, and that could take a long time.
⇒ Wherever you store your Will, make sure that important people you trust—your spouse, your adult children, your attorney, etc.—know where your Will is located so that they can easily locate and access it if/when they need it.