Attorney and Counselor at Law
Legal Matters is a regular column intended to address general legal concerns. Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.
Many clients ask whether they need a will. Often a client comes to thinking that without a will her property will “go to the state”… also known as escheatment. This is a scare tactic and rarely happens, but there are plenty of good reasons to have a will prepared.
By statute, New York provides for the distribution of a person’s estate upon death if he dies “intestate” — without a will. Thus, it is helpful to know what will happen by default in case your wishes are different.
For example, a man has a wife and two adult children. The children are doing well for themselves, but his wife doesn’t work and will need to rely on her husband’s estate if he should die first. Under New York law, if he dies without a will, his wife will take the first $50,000 plus one half of the estate’s residue; his children will take equal shares of the remaining half. If the only asset is their residence, however, then it’s possible that the home would need to be sold to make distributions to the children. Under ideal circumstances, the children wouldn’t let this happen, but it might not be a chance worth taking. In this case, a will is the best way to ensure that his wife is taken care of in the event that he dies first.
Further, many people wish to leave small (or large) gifts to churches, schools or other people or organizations that have touched their lives. New York laws don’t presume to guess these intentions, so the only way to ensure these gifts are carried out is through a will.
Having a will prepared is typically very painless. In fact, my clients are often surprised and relieved at the simplicity of the process. When I meet with clients initially, I take down some basic information and answer any questions they might have so that I can prepare a draft for review. Once the draft is approved, we’ll set up a date for signing. Cost should also not be a concern; most attorneys charge a very reasonable, flat rate fee to prepare a will.
So, is a will necessary? No, it is not necessary, but it is a simply prepared document that brings peace of mind.