To Have (or Not to Have) a Will? That Is the Question

To Have (or Not to Have) a Will? That Is the Question by Michael Fedele

Have you ever asked yourself: Do I need a will?

Pop culture’s portrayal of a will execution and the probate process has resulted in many misconceptions including but not limited to:

• All assets will automatically go the surviving spouse; and

• The state will take money from the estate if there is no will.

Contrary to popular belief, New York State will not come and take money from the deceased’s estate if that person passed without a will; however, other issues may arise from a lack of a will.

In New York State, if you die without a will in place, the property will pass by the Laws of Intestacy as set out in NY Estates Powers & Trusts Law § 4-1.1:

So to answer the original question: Yes, everyone should have a will.

This is particularly important if you have children. Without a will, the Laws of Intestacy state that the first $50,000 of the estate goes to the surviving spouse, and then the residual is split 50% between the surviving spouse and 50% between the remaining issue — this includes adult children, not just minors.

Moreover, there is the issue of guardianship with minor children. Automatic presumption of guardianship should not be assumed — a guardian should be nominated in a properly drafted will.

Lastly, depending on the assets, the court may require that a bond is posted — and a long-term relationship with the court is created as a result. Often, unnecessary expenses result from the posting of a bond. In addition to the nuisance of obtaining court permission in order to spend money on behalf of a minor.

Our firm meets with clients multiple times to discuss and execute a will that accurately addresses the testator’s goals, family’s assets and family dynamics, etc. The process is more complex and sophisticated than filling out an online service’s form.

Contact us today to get started drafting your will.

Michael J. Fedele, Esq.
SCHNEIDER, GARRASTEGUI & FEDELE PLLC
135 Pinelawn Road
Suite 110 South
Melville, NY 11747
(P) 631-756-6006

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