Wills, and What Happens If You Die Without One
A Last Will & Testament is a legal document that instructs who should inherit Estate assets when the Will’s creator (also called the “Testator”) Deceases. The person in charge of carrying out the Testator’s directions in a Will is called the Executor of the Will.
The standard of competency to sign a Will is fairly easy to meet. However, it is important to note that only assets solely in the name of the Decedent pass under the Decedent’s Will. Assets go directly to a survivor if the asset names a beneficiary (e.g., an IRA, pension, or insurance policy) or is owned in Joint Tenancy with Right of Survivorship (the same as “JTWROS”), or is a bank account held In Trust For (“ITF”) a beneficiary.
Wills remain confidential documents until the Decedent’s death and only become public once they have been filed with the Surrogate’s Court. Upon the death of the Testator, the Will is filed for Probate with the Surrogate’s Court in the county where the Deceased Testator lived. Assuming all the Probate requirements are satisfied, the Surrogate’s Court issues Letters Testamentary to the Executor, which, in turn, enables the Executor to begin the process of Administering the Estate by marshaling the assets, paying the liabilities, and distributing the assets according to the instructions in the Will.
What happens if a person dies “Intestate,” meaning they died without leaving a Will or if their Will is denied admission to Probate for any reason? The assets of a person who died without a Will or where their Will is not admitted to Probate will pass according to New York State’s laws of intestacy. In a typical intestate situation, your property goes to a surviving spouse and children (if any) or to other blood relatives (called “Distributees”). The individual who is considered a distributee and entailed to inherit from the Estate is determined by the intestacy statute.
Having a Will is crucial in certain circumstances, such as if you want to benefit a disabled or incapacitated beneficiary or if you have minor children and need to plan for their future. In such situations, a Will may be useful in order to secure the financial future of persons by appointing legal Guardians, Trustees, or other Fiduciaries to determine at what age, or in what method, beneficiaries should receive their part of the inheritance. Wills may also be useful in protecting your assets from your creditors or from the creditors of the persons you wish to benefit. In addition, a Will and other Estate Planning documents may be used to plan for or avoid certain adverse tax consequences.
The team of experienced attorneys at N. Khasidova & Associates are available to help guide you through the process and plan for everything you need.