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Sunday, May 13, 2018

Writing a Will: Why it is Necessary

 

The most important reason to have a will prepared is so that the laws of intestacy do not control the disposition of your assets. Put simply, if one dies without a will, the laws of the state one resides in determines who inherits. For example, in New York, if one dies leaving only a spouse, the spouse inherits all.  If one leaves a spouse and children, then the spouse inherits half and the children inherit the other half.  Clearly, one problem with this scheme is that you may not want to leave your assets in the manner set forth by state law.  Many complications can arise, even if one dies leaving a spouse and children.  If the children are under the age of eighteen, they are not able to inherit unless the court appoints a guardian.  Additionally, it may be more important that the spouse inherit the bulk of the money so that he/she can provide for the children in his or her discretion, when the time is right, and also have control of enough money to support the children properly. If the children are over eighteen, and there is no will, these children will inherit regardless of whether or not they are old and mature enough to manage their inheritance.

If one dies without a will, it is also up to family members to petition the court to be appointed Administrator of one's estate, controlling the assets and distributing them.  Of course, it is preferable for one to choose someone who he/she trusts to take on this role, which is one of the many purposes of a will. You can designate who the Executor is, who will be in charge of your estate. 

It is indeed a very common misunderstanding that probate is to be avoided at all costs.  In New York, in most instances, probate is quite a simple and inexpensive process, and certainly less expensive than going through the court process of administration, which is the proceeding one must go through if a person dies without a will.  Putting beneficiaries on one's accounts does in fact avoid probate and, in many instances, may be a good way of providing for one's heirs.  However, if the heir passes away unexpectedly, that can cause problems.  Having a will can at least serve as a back-up plan, in case a beneficiary passes, so that the asset instead can pass according to one's own wishes.

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