No one ever wants to think about it, but sooner or later we all meet our end. And because we don't want to think about it, many of us fail to prepare to make a will. Small business owners especially need a will, as their families typically do not have a "safety net" of planning to deal with the loss of a sole provider. It is such a simple step that every responsible person should take to protect themselves and their loved ones.
A "Last Will and Testament" helps protect your loved ones and allows you to determine what happens to your property - on your terms. Within a will you can leave your property to whomever or whatever you want, ensure that any minor children get proper care and receive any property you leave to them, and settle financial concerns that would be left to your grieving loved ones.
In New York, the alternative to passing without a will, or "Intestacy," is governed not by your wishes, but by a set of laws called the Estate Powers & Trust Law (EPTL) which will control how your property will be distributed. These laws give your property to your surviving spouse and children - and so on down a list of priority should you have neither. And if the Court cannot find living relatives either by blood or marriage, then your things go the State.
Passing without a will is a recipe for family strife and fighting. I have seen families torn apart by fighting over property because they believe the deceased "wanted them to have" something. Without you stating how you want your affairs handled, there is no way for anyone to know what you truly wanted.
This can all be avoided through a simple process of creating a will. Here's all you need to do:
- Create a writing that expresses how you want your affairs handled and who you want to carry out those affairs (called an "Executor") when you pass;
- Ask two people - any two will do - to witness you sign this writing, and express to them that this is indeed your will; and
- Then have your witnesses sign the writing.
That's it! Well, not all of it....
While doing the above will establish the document as your Will, it is best to consult an attorney to better ensure that your wishes are carried out. For example, retaining an attorney:
- will help you to manage tax consequences of your choices, which are often complicated;
- will guide surviving relatives through business decisions;
- can assist you in making tax-free gifts while you are still alive;
- can set up methods of transferring property - including the survival of your business - outside of creating a will;
- will make your will "self-proving" by preparing affidavits for your witnesses that will speed up the court process, or "Probate";
- can guide your Executor through the probate process and carry out his/her duties; and
- will safely store your Will and other documents safely and securely.
Lawyers can also handle more complicated wishes, like disinheriting certain relatives, or plan for someone contesting your Will, or mediate family disputes before they arise.
With a little bit of planning, and the assistance of the right counsel, you can ease the pain of your passing for your family and loved ones.
*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.
Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.