Do you need a will? Here are some common questions about wills for guidance on whether or not you need a will. If you have questions about wills, trusts, or estate planning, please contact us to schedule a consultation with an experienced Buffalo estate planning attorney. Let our experience work for you.
Why Do You Need a Will?
- Some people actually do not need a will. If they’ve set up their estate so that their children are named as beneficiaries, established joint accounts with their children, or put them on the title of specific assets, a will may not be needed. If, for example, you just have three children and no spouse, the law says it goes to the three children, and you might be okay with not having a will.
- Many people need wills regardless of their assets, such as young family members who may need a will to state that if they die, they want their assets to go to each other. They also want to make sure their assets go to their children. If the children are young, they want to establish a trust for their benefit, rather than having assets go directly to the children. If the children are under 18, assets go into a guardianship account monitored in surrogate court. A trust is established for the children with terms that set the length of the trust and name the individuals who will be in charge.
- Three groups of people will be in charge of various aspects of your late life. Your executor deals with the estate as a short-term job by picking up your assets, paying your bills, and distributing things as you said to distribute them. For most couples, this is the surviving spouse, with an alternate named to serve if both were gone. When there are children, the executor turns the remaining assets over to the trustee, whose job lasts longer because, the trust will be in place until the children reach 21, potentially through funding their education.
- A guardian is the actual caretaker who will take responsibility for your children until they reach majority. Many people can only think of a very few people they would trust with their kids and their money, and the guardian, the trustee, and the successor executor or trustee are all the same people. Think carefully before naming your parents as guardians.
- If you have a spouse and children and die without a will, the spouse gets the first 50%, and the other 50% of your assets are divided between the spouse and the children. It’s smart to have a basic will that says, “I give everything to my spouse.”
- One sad issue arises when people leave people out of their wills. Spouses, children, and families have different relationships and, someone may choose to give assets to some of their children, but not to others. If you decide to do that, it must be clearly indicated in a will.
What Information is Needed to Create a Will?
- Some attorneys have people prepare questionnaires, and asset lists, but I don’t. Instead, I have the person (or people) talk about what they want, their family and their assets, and then we put a plan together.
- Blended families can be challenging. There’s the husband with his kids, the wife with her kids – and now, what happens if one of them dies? Does everything go to the surviving spouse? We talk about varied scenarios, such as what happens if the spouse remarries and changes her will, leaving everything to her kids and omitting the spouse’s.
- Certain techniques, such as trusts and entities, can ensure that some of your assets go from your spouse to your children because one should never rely entirely on one’s spouse to take care of your kids. The reason isn’t devious or anything. People change, so maybe you should put your children on an insurance policy or add them to an IRA account where they get assets directly. That way, they get some assets from you and, if there are other assets and your spouse doesn’t change their will, the kids will get more.
- One’s spouse is entitled to a certain percentage of your wealth. If your will says, “I leave everything to my children,” with no prior conditions, the spouse could exercise a right of election against your estate. In prenuptial agreements, it is common for people to waive this right of election and allow each spouse to direct where their assets go. Otherwise, your spouse can make a claim against your estate.
What Happens When You Die Without a Will?
- If a deceased person with no valid will owned assets in their name, those assets are distributed under the laws of intestacy in which the estate’s called an administration. The person in charge, an administrator, has the same powers as an executor. The rules, at least up through distribution, are the same. The administrator collects the assets and pays the bills, and then looks to the law for distribution.
- If a young person who has only parents dies, their assets go to the parents. If the person has a spouse but no children, it goes to the spouse. If the person has a spouse and children, everything is divided between spouse and children. After that, it goes to other relatives – all the way to first cousins. If you have an extended family, but no children, nieces or nephews, your estate can be given to more distant relatives, including people you have never met.
- Even worse, a significant amount of your estate may be used up in the process of figuring out who these people are and having a court determine that this remaining family is entitled to your money.
Contact Our Buffalo Lawyers Today
If you have more common questions about wills or your estate plan, contact one of our experienced attorneys for guidance. We welcome the opportunity to assist you.
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