Major milestones in your life happen either by plan, or when you least expect it, and your attorney is one person you can turn to when those moments occur for support. We’ve discussed it in the past, but recent client situations made me revisit this topic again. It is so important to make sure that your estate plan is put into place – and updated – before something happens. A will that was drawn up many years ago may not be relevant to how you want things distributed now. Update your deeds, will, beneficiaries on your life insurance, annuities, etc., anytime there is a change to a relationship.
Consider this situation – A parent passes away and leaves his or her estate to his or her three children. One of those adult children lives in the house and has taken care of the parent and paid for the household bills for years. Their parent’s will say the children share the estate equally – that’s what most parents want to do – not play favorites. Now, the other siblings want the house sold, but the sibling who resides there cannot afford to buy a house with the amount he or she would get from the sale and has no place else to go. So, we have to find a solution which could be buying the other siblings out of their share so the person living in the house can remain in the house. Otherwise, the house will have to be sold.
If the parent understood the implications of his or her will, would he or she have planned it this way? Death and money make people weird. I first saw that when I was a clerk at the Surrogate’s Court while in law school.
By law, without a will, your spouse and children are your legal heirs. The law provides for other beneficiaries if you are unmarried or have no children. This is called “intestacy.” Your long-time partner/significant other has no right to any of your assets unless you own them jointly. To make sure that your assets are distributed the way you want after you pass, you must have a properly executed and witnessed will.
When thinking about how to distribute your assets, think again of “What ifs?” Estate assets can be described in two ways. Specific bequests/devises – meaning you want your granddaughter to have a certain piece of jewelry from your collection or your brother to receive a cottage you own in the country. The other part of your estate is known as your “residuary estate,” which is made up of the assets remaining. Think of contingencies in the event that one of your beneficiaries passes on before you. Where does that person’s share go? And it’s OK to leave one child more or less than the other. It doesn’t always have to be equal shares, especially if one child has done more to help you through the years. (We won’t even address family drama!)
Why should you use an attorney? I am often asked why a person needs an attorney to prepare a will. There are many online services to create wills and other legal documents, but if you decide to do that, please make sure that you have a minimum of two witnesses in New York (other states may be different.) And those witnesses cannot be a beneficiary or a fiduciary under the will. And PLEASE make sure that you get the right witness statement and witness attestation affidavit signed at the same time. You do not want to have a document disqualified by the court if someone objects to its contents. Even a handwritten document can act as a will, as long as it’s witnessed and signed properly. AND NEVER TAKE THE STAPLES OUT!!!! (well, it’s really not the end of the world, but it does create issues if you do!)
One of the advantages of working with an attorney is that we are objective in the matter. We look to see if the person signing has the mental capacity to sign the will, knows what is going on, who their natural heirs are, if they are under duress or undue influence by someone.
In addition to your will, make sure your advanced directives, power of attorney and health care proxy are updated and correct. There are many moving pieces in the estate planning process and we are here to help if you have any questions.