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Last Will and Testament
The most important and ubiquitous
document that is a necessary part of
any estate plan is the last will and
testament. This document will serve
many important purposes, including
providing for how your assets should
be disposed of at your death, choosing
fiduciaries to administer your estate
(and any trusts created thereby), and
selecting guardians for any minor
children. In the absence of a last will
and testament, the laws of intestacy of
the State of New York will apply. This can
lead to numerous problems. Perhaps the
most frequent issue that arises in such a
case is the conflict of a parent and child.
Many couples
expect or desire that their surviving
spouse will inherit their entire estate.
Without a will, however, the property
of a decedent will be split 50% to
the surviving spouse, and 50% to
the children who have survived the
deceased spouse. In the event those
children are minors, the Surrogate’s
Court will appoint a guardian for the
children, and the property will be held
in trust for the children until they reach
the age of majority, and the property
will then be distributed to the children.
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The problems here are two fold - first, the
surviving parent will not have access to
the funds in a time of uncertain financial
circumstances (unless the children give
the funds up upon reaching the age
of majority); and second, the children
will receive the entirety of such funds
immediately upon reaching the age of
majority. Even if the children are adults,
in the event there are any issues between
the surviving parent and the children,
the children may refuse to waive their
rights to inherit, and thereby deprive
the surviving parent of financial support
in their hours of greatest need.
Another important purpose of a will
is the ability to create trusts for the
benefit of your loved ones. These
trusts can protect your prospective
heirs from fraud, misappropriation
and waste. Additionally, in the event
any prospective heirs of your estate
are disabled, recipients of government
benefits of subsidies, trusts can provide
additional support and improve the lives
of your loved ones without jeopardizing
your beneficiary’s’ entitlement to those
benefits