“I have a simple estate, I don’t need a will, it will all go to my wife anyway.” Famous last words.
Not in New York State, and many other states of the union. You worked hard to build your estate and leave it to your heirs, planning your estate is the efficient and peaceful transfer of your estate to your heirs.
In New York, if a man dies with a wife and children, the wife and children split the estate. That means if the major asset of the estate is the home, the surviving wife, now has to share title of the home with her children. They can force her to sell the home.
If the estate includes a business, there can be a conflict between surviving wife and children as to how to run the business and who gets to run the business.
If there are minor children, then a court will generally appoint a guardian to oversee the administration of the estate. The guardian will be an attorney who does not know you or your children, the guardian will be paid by the estate’s funds, and the guardian can hold up the estate until he/she completes a guardian report.
The children’s share will have to be placed in trust for their benefit, if they are minors, because minors cannot hold funds in their own names.
If there is a child with special needs, and that child receives funds directly, she risks losing whatever government funding she has to assist with his/her disabilities.
If a person dies without a wife or children, then his/her money goes to his/her parents. If the parents are wealthy, this may burden their estate with the possibility of additional gift and estate taxes. If they are receiving Medicaid or other government assistance, the inheritance may cause the parents to lose their government benefits.
Most importantly, if both parents die and leave minor children, then the courts have to decide who should have custody of the children, which is an almost inevitable path to custody battles and unhappiness for minor children.
If money is not specifically set aside for children, and all the money goes to the surviving spouse, if the spouse remarries, there is a chance that the children may not see any inheritance, but the surviving spouse might take that inheritance with him into a new marriage.
It is difficult making decisions with regards to the details of an estate, but it is easier to do so when you are healthy and in control of the decision making process, than leaving heirs in a state of emergency trying to figure out where the kids should go, who should run the business and whether the house has to be sold. It costs less money and energy to plan ahead.
These are some of the more common issues which arise when one doesn’t have a will, call an attorney for an estate consultation.
Lenore has been practicing Trust and estate/elder law for 25 years. She has her LLM masters in Taxation, and has offices in New York and New Jersey. You can contact her via telephone at (516)569-4671 or by email at Ldavis@lenoredavis.com.