WHY A WILL?
There is an old saying that the two most inevitable events in life are death and taxes. Neither of these subjects is pleasant or avoidable, but despite that fact, very few people spend a lot of time thinking about their own mortality. Though each of us could die at anytime, it is easier to not think about it, and even if you do think about it, to believe that it will not happen for a very long time. Though people will spend hours and possibly days preparing for a vacation, a wedding, a holiday meal or some other significant event, most people do little to prepare for one of life’s inevitable events, death. Even though it is my hope that your death is going to be a long time coming, it does not mean that you should not take some very simple steps, to insure that you are the one to decide what happens to the property and wealth that you worked so hard to acquire.
In its most basic terms, preparing and executing a will is the opportunity the law provides to everyone to tell their loved ones and the courts, how they want their estate to be handled. Each county in New York has a Surrogate’s Court. This is the court where estates are administered, whether a will has been executed or not. If you do not prepare a will and your estate has to be administered by the Surrogate’s Court without that benefit, the distribution of your estate is controlled by a state statute. This statute, commonly known as New York’s law of descent and distribution, dictates who gets what, depending on who your survivors are. As a simple example, if someone dies who is married and has children, the statute provides that the spouse gets the first $50,000.00 and one half of the residue, while the children split the other one half of the residue, by representation. I have never known any married person that prepared a will to have set it up in this manner. But the problem is if you do not write a will, descent and distribution is left to the State, through the Courts, and the legislature has provided a statutory method of covering the possibilities that exist when someone dies, based on who survives the deceased and their relationship to the deceased. Otherwise, every estate without a will has the potential for chaos and the courts are busy enough as it is.
The easiest way to avoid any potential problems and to be assured that you decide what happens, is to prepare a will. Depending on your life situation, your will may be very simple or may be quite complex, but in either event, it is better to have your thoughts down on paper. If your life situation changes and you want to change your will, you simply create another will, (which by its terms will revoke your prior will), or add a codicil, which is basically a change or addition to the will you have. The monetary cost of doing so is insubstantial compared to the piece of mind you acquire by having your desires memorialized for all to see.
Additionally there are other documents that you can have prepared, in conjunction with preparing a will, that are simple, statutory documents of use while you are still alive. Along those lines for example, would be forms such as a power of attorney, a living will and a health care proxy. Whether you wish to prepare any one or all of these documents is your decision, but at least you will have the opportunity to get advice about these documents and their purposes. Bottom line: be prepared so the decisions are yours.