Ronald Fatoullah & Associates - Elder Law

The Value of Making a Will

Even if you lead a relatively simple life, if you die without a will it could take a team of professionals to settle your financial affairs. Celebrities, past presidents and everyday New Yorkers die without wills every day, but your loved ones do not have to be among them.

Intestacy is the legal name for the situation where someone dies without a will. If this happens, your estate could pass into a complex legal process, as happened recently in the case of the millionaire hermit. This can be an expensive process. But before that happens, who becomes involved?

Leaving no Will can complicate the administration of a decedent's estate, because no person has been designated to manage their affairs. Furthermore, without a Will, the benefactors of the estate may not be the persons the decedent would've chosen. A Will simplifies the administration of a decedent's estate while offering many other advantages.

At its simplest, a Will is a written set of instructions expressing someone's wishes for the appointment of a person to manage their estate (the executor), and for the distribution of the individual's property upon death. In New York, when there's no Will, certain family members of the decedent have priority over others when petitioning the court to be appointed administrator. The administrator appointed by the court might not be the person the decedent would've chosen. Also, it is state law that determines who will inherit the decedent's property, not the decedent's wishes.

Aside from naming an executor and beneficiaries, there are many other reasons to prepare a Will. Parents of minor children can use a Will to nominate a guardian to take care of the children until they reach the age of majority (if there's no surviving parent). Without a Will, that decision will be made by a judge, and the individual chosen as guardian may not be the individual that the parents would want.

Additionally, a Will can be used to create Testamentary Trusts. The two most common of these are Minor's Trusts and Supplemental Needs Trusts. A Minor's Trust is a set of instructions to a trustee directing the distribution of property to a minor child upon the death of the creator of the Will. A Supplemental Needs Trust is a trust created for a disabled individual-minor or adult-which supplements governmental entitlements, such as Medicaid. A Supplemental Needs Trust doesn't impact the beneficiary's Medicaid eligibility because it is not the beneficiary's property in the trust. Also, upon the beneficiary's death, the funds in the trust do not have to be used to repay Medicaid, and the beneficiary can direct the distribution of this property in their own Will. If a disabled beneficiary receives an inheritance outright rather than through a Supplemental Needs Trust, that inheritance will disqualify the beneficiary from receiving Medicaid.

Who is involved in cases of intestacy?

After someone dies without a will or without immediate family, a team of people must step in to help. These individuals can come from private and public agencies. The following professionals may need to be involved and are usually compensated through the deceased person's estate:

  • Public administrators
  • Locksmiths
  • Biohazard/trauma cleanup professionals
  • Trash haulers
  • Real estate agents
  • Auctioneers
  • Attorneys
  • Financial brokers, banks
  • Probate court professionals
  • Heir-finders

In New York, cases of intestacy usually go through probate court. This can diminish the value of the estate by a third, a half or even more. All that you've saved could end up going towards court costs instead of in your heirs' hands.

A Will is a valuable tool serving a number of functions, including the distribution of property; the nomination of an executor, guardian and trustee; and the creation of testamentary trusts. However, a Will is only as valuable as the skill of its drafter; therefore, it is imperative to have a Will prepared by an experienced elder law attorney.

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