Last Will & Testament

A Will allows you to decide who benefits from your estate upon your death. If you do not have a Will, or other means of transferring your property, the law of your state decides who receives your assets when you die. For instance, in New York, if you have a spouse and children, your spouse receives the first $50,000 of your probate estate and one-half of your remaining probate estate and your children receive the other half. If you are like most people, you would prefer that your spouse receive all of your assets upon your death.

If you have minor children, a Will provides them with a guardian to take care of their person and a trustee to take care of their property. If you do not have a Will, then a court decides these issues. The judge may not have the same philosophy of raising children as you do. He or she will not know the various candidates for guardianship as well as you know them. In short, if you do not have a Will, a stranger, however well intentioned, will make the most important decision of your child's life.

A Will also allows you to choose an executor. Without a Will, a court proceeding called an administration proceeding may be necessary. In an administration proceeding, the court appoints someone to manage your affairs; that individual would not necessarily be the person you would choose for yourself.

You should periodically review your Will. Many of life's common events may affect the provisions of your Will. For instance, you may move, become married or divorced. You may have children. A beneficiary, witness or executor could die. All of these events may have a great impact upon your estate plan and your Will.

A Will is only part of your estate plan. After analyzing your estate plan, you may find that many or even most of your assets do not pass through your Will. For instance, joint bank accounts and assets with beneficiary designations do not pass by Will. When your Will is drafted, you should review your entire estate plan with your attorney so that you can determine who would receive your assets upon your death. The results may surprise you.

Perhaps you have a Living Trust that distributes your assets upon your death. You should also have a Will. A Living Trust is asset specific. In other words, an asset must be in the Trust for it to be an effective probate avoidance vehicle for that asset. If the asset in not in your Trust and you do not have a Will, then an administration proceeding may be required. You can avoid an administration proceeding by having a "pour-over" Will that "pours" the asset(s) into your Trust. This protects you with respect to assets inadvertently left out of your Trust or which are not practical to put into a Trust.

When you are drafting your Will, it is a good opportunity to determine what tax planning you may need. You may believe that your estate is not large enough to warrant tax planning. However, many people are surprised when they add up their assets; they discover that they own more than they had thought they did. Add up your own assets; you may also be surprised.

You should consider that investments will grow over time and an estate that is not presently subject to estate taxes may be taxable in the future. In addition, the transfer of assets could generate income taxes. Tax issues are very complex and the law is constantly changing. Sitting down with a professional who keeps abreast of these issues can result in significant savings.

You cannot change your Will by writing in or crossing out items. A new Will must be written or a codicil made. Never remove the staples from your Will as this may lead the court to conclude that someone removed and/or added pages to the original document. Safeguarding your Will is as important as making it.

You must follow the strict requirements of law when your Will is written and signed. To give but one example in New York, you (the person making the Will) must declare to your witnesses that the document you are signing is your Last Will and Testament. If you do not follow this and other strict legal rules, a court may declare your Will partially or wholly invalid.

Your Will must be written well and clear in its intent. You will not be around when your beneficiaries probate your Will. You will not be able to correct mistakes that make your Will invalid. You will not be able to explain any contradictions or ambiguities.

You would be wise to have a professional assist you in drafting this important document. The "savings" you enjoy by drafting your own legal documents may result in documents that have unintended results. Worse, a court could declare your Will invalid and thus totally ineffective in passing your assets to your chosen beneficiaries.