Your Last Will, The First Step

Published in The Post Standard, March 2002

For most Americans, their Last Will and Testament is the start of their estate plan. Your Will would direct how your assets are disposed after your death. However, the Will can only direct the distribution of assets titled in your name only. Examples of such assets are bank accounts, houses, cars, family camps, stocks and bonds.

If there are bank accounts held jointly with your brother as joint tenants, then your brother receives the bank accounts after you die since your brother is the joint tenant. If the life insurance designates your sister as beneficiary, then your sister receives the life insurance after your death. Assets with beneficiary designations include an ira, a life insurance policy or an annuity. If the family home is held in a trust, the trust tells us who receives the family home after you die.

Your Will accomplishes several goals: distributing your assets to the people you choose; choosing who will care for your minor children; and naming an Executor to see that the wishes contained in your Will are carried out.

The Will allows you to decide who should receive your assets. The law does not require you to leave assets to family members. You can leave your assets to friends, family members or a charity. However, if you choose to leave nothing to your spouse, New York law allows your surviving spouse to take a certain amount of your assets despite the fact that the Will left nothing to the surviving spouse.

While many parents choose to divide their estate equally among all their children, that is not required by New York law. Parents can choose to divide their estate among their children in any way that they choose. For example, parents may choose to give more to one child who is struggling financially.

Parents can even choose to leave nothing to one child while dividing the estate among the other children. However, if parents choose to disinherit one child, the parents should put a specific disinheritance clause in their Will stating this.

If you have minor children, you should consider naming a guardian to care for your minor children if you and your spouse were both deceased. The guardian is the person who will care for your children. The children will live with the guardian. You should choose a person or married couple you believe will care for and love your children. For many people, the guardian is often your brother or sister, but it does not have to be a relative. You can choose a friend to be the guardian of your children.

The Will names the guardian and often distributes all of the deceased parents' assets into a trust for the minor children. This trust for the minor children will help the guardians pay for the food and shelter for the children and often will pay the college tuition for the minor children.

Finally, the Will allows you to choose an Executor. The Executor is a person you trust to carry out the wishes expressed in your Will. The Executor is often a family member, but does not have to be.

After your death, if you have a Will then your Executor will be involved in the court procedure called "probate". The word "probate" comes from the Latin "probatio," meaning proof. Probate is the process by which we prove to the probate court that this document is the valid last Will of the deceased person. In New York, the probate court is called the Surrogate's Court.

The Surrogate's Court will review the Will to see that you actually signed your Will in front of the required number of witnesses. The court will also grant legal authority to your Executor to carry out your wishes as stated in the Will.

However, what would happen if there were no Will? One common misconception that people have is that the government would take your assets if you died without a Will. This is not true. If you do not have a Will then your estate must go through a court procedure known as "administration". Since there is no Will to tell us who gets what assets, the law has certain rules which state which family members would receive the assets. However, if there is no Will and there are minor children, the Court would have to choose the guardian of the children.

As you can see, a Will drafted with your goals in mind can assure that you are the one to choose who receives your assets, who will care for your children and who will be your Executor. The law lets you make these choices, but only if you first create a Will.

For more information call or write to: Mr. Stephen McMahon, McMahon Law Firm, 3 Henry Beach Dr., Camillus, NY 13031-2300 800.391.9987. You may visit the law firm's website at stevemcmahonlaw.com or you can e-mail your questions to Mr. McMahon at Email me.