WHY EVERYONE NEEDS A WILL

  Regardless of income, age or lifestyle almost everyone can benefit from having a Will. In its simplest sense, a Will is a legal document which, when validly executed, directs the disposition of an individual's property after his or her death. Frequently people assume that because they perceive themselves as having "no property" or because they own all of their property jointly with a spouse or some other individual, that they do not need a Will. This misconception is usually held by young couples. Take for example the case of Jack and Jane Client who are both 27 years old. Jack and Jane have two small children, Tommy and Jill. Jack and Jane own a house jointly. The house has a large mortgage. Jack and Jane have a modest bank account which is held in joint names with rights of survivorship. They each own a $250,000.00 term life insurance policy naming each other as primary beneficiary and their children as contingent beneficiaries. Jack and Jane feel that they have everything tied up nicely and that they do not need to go through the process of drafting Wills.

     Tax planning aside, Jack and Jane both needs Wills because they have not considered the situation where they both die together or within a short amount of time of each other. Without Wills, Jack and Jane have not planned for the most important thing in their lives, their children. By having a Will prepared and properly executed, Jack and Jane can decide who will serve as Guardians for their children. Additionally, if something should happen to both Jack and Jane, one-half of the total life insurance proceeds would be paid out lump sum to each of their children when the child reaches 18 years of age. Before the children turn 18, the money could only be used for limited purposes and investment potential is restricted by statute. By setting up a trust in a Will and naming that trust as the contingent beneficiary of the life insurance policies, Jack and Jane can be assured that the funds will be properly invested, available to pay expenses for the children as they grow up and held in trust until the children graduate from college or reach an age when the children will be better prepared to prudently manage a large sum of money.

     Another reason people believe they may not need a Will is because of a misunderstanding of the laws of intestacy. The laws of intestacy set forth rules governing the distribution of estates of people who die without a validly executed Will. They are inflexible and often give benefits to people who you may not want to share in your estates. To be sure you leave the result of your lifelong work to the family members you want to leave it to, in the amount or proportion you select you must have a Will.

     You may also want a Will because it gives you the opportunity to appoint an Executor. The Executor is the individual or entity named in the Will who will carry out your directions. A well-written Will can explain your and establish an orderly plan of distribution according to your wishes.

     Another group of individuals who must have a Will are those who wish to leave assets to anyone other than a spouse or a blood relative defined as a next of kin. For purposes of intestate distribution, the laws of the State of New York do not recognize common law marriages or alternative lifestyles. No matter how long partners may live together, unless there is a valid marriage, in the event of the death of one of the partners, the survivor will not be deemed a surviving spouse for purposes of intestate distribution.

     As of the year 2000, each individual taxpayer will be able to shield $675,000.00 from federal estate tax. This means that any married couple who has total assets of less than $1,350,000.00 and fail to do some simple estate planning, are voluntarily paying a substantial federal estate tax. By the year 2006, this figure will have increased to $1,000,000.00 per taxpayer or $2,000,000.00 per married couple. In order to avoid the federal estate tax, many people become involved in complex irrevocable lifetime trusts which divest them of control of their assets during their lifetimes. While these complex trusts are sometimes necessary for many people a Will containing marital trusts can do the trick. In many instances, the benefit of using a Will is that it allows you to change your mind. Once an irrevocable trust is established, it is difficult to change beneficiaries. In most instances, a Court Order will be required. However, if you are unhappy with the beneficiaries named in your Will, or with any other aspect of your Will, all you need to do is to have another Will drafted. The point is that a Will has no legal significance until you die and the Will is admitted to probate.

     In order to avoid fraud and uncertainty in the distribution of estates, the law in most States sets forth formal requirements for the execution of a valid Will. In most jurisdictions, a handwritten Will or an oral Will is only valid under certain very limited situations, the most common being Wills which are handwritten when the individual making the Will is serving in the military during a time of war or other armed conflict.

     A Will which is not executed in conformity with the statutory requirements will not be accepted by the Court for consideration for probate. Additionally, the easiest way for disgruntled relatives to contest a Will is to attack the manner in which the Will was executed.

     There is no such thing as a "Form Will" nor, is it suggested that a Will be prepared by a layman using a "how to" book or computer program. In order to accomplish your goals and to ease the administration of your estate for your family, a Will should only be prepared by and executed under the supervision of an attorney who is knowledgeable and experienced in the field of trusts and estates.

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