Handbook
• WILLS
Your Will allows you to determine and direct how your property will be distributed
and to whom upon your passing. You can name the individual that will administer
the final affairs of your Will. You can also name a Personal Guardian to care for
your minor children, if any.
Your Will has many uses and is a very flexible legal document. For example, you
can decide who will get your items of sentimental value, even if they don’t have a
lot of monetary value. Or, you can decide who will get your pet and how much
money that individual should get to take care of your pet.
To summarize, your Will allows you to make your final wishes in all these matters
known. And, in making your wishes known, you will also help your surviving family
members to avoid any conflict and misunderstanding.
Neither John nor Mary had a Will. They both understood the importance of a will
but never set a definite date to get it done. Because they didn't have a Will, they
never named a Personal Guardian for their children, Sally and Michael. Each
always assumed that if something happened to one of them the other would take
care of the children. It never occurred to them that both of them could be taken
away at the same time.
John and Mary had always expressed admiration for their long time friends Tom
and Pat. Tom and Pat were a patient, loving and responsible couple. In fact, Tom
and Pat already had a close relationship with Sally and Michael. It is very likely
that John and Mary would have chosen Tom and Pat to be the Personal
Guardians for their children.
Because John and Mary did not have a Will and did not name a Personal
Guardian, the Court made the decision for them and without their input. The
Court decided upon Mary’s parents. Mary’s parents asked for and undertook the
obligation because they felt they had no choice. Although they loved Sally and
Michael, they knew now that they would never have the leisurely retirement they
had always hoped and planned for. And, since Mary’s parents were getting older,
they wondered how much longer they would really be able to care for Sally and
Michael, and what would happen then.
In addition, because John and Mary did not have a Will, the Court and the laws of
New York decided for them who would administer the final affairs of their estate
and how all their property would be distributed. John’s baseball card collection did
not go to his childhood friend as he would have wanted. And, Mary’s jewelry did
not go to her favorite cousin as she would have wanted.
The bottom line is that, if you do not make your wishes known, the Court and the
laws of New York will make those decisions for you. And, most of the time, the
decisions that are made for you will be quite different from what you would have
decided on your own. In fact, you would be quite surprised at some of the results.
Let’s take the example of a married couple with 1 minor child. Most spouses with
Wills would want to leave all their property to the surviving spouse if something
happened to one of them. It often makes sense as the surviving spouse would
need the money to take care of herself and their child. However, if you have no
Will where you have expressed your wishes, the laws in New York decide
otherwise. I.e., the surviving spouse would get $50,000 plus one-half of the
remaining estate. Their minor child would get the other one-half of the remaining
estate.
You might think that the child’s money is the spouse’s money in any case and
would not matter. However, by law this is not true. This one-half of the estate now
owned by the minor child is not the spouse's. The spouse will most likely be
chosen to be the Guardian of the property for her child but the spouse will not
have unrestricted use of this money. In fact, as the Guardian of the property, the
spouse will have to account to and seek approval from the Court regarding how
these monies will and can be used for the benefit of her child.
This is not a good result. Generally, the more you have the Court involved, the
more you’ll have to deal with regulations and restrictions, and the accompanying
paperwork, delay and expense.
Note: Not all property is distributed through your Will. Step 2, Avoid Probate,
discusses this further.
