No one ever wants to think about it, but sooner or later we all meet our maker and before meeting your maker – have a will drafted that complies with New York law and your wishes.
Small business owners especially need a will, as their businesses can suffer based on the time it requires to resolve the estate matter. Not let this happen. Having a professional drafted will is cheap and painless.
A “Last Will and Testament” helps protect your loved ones and allows you to determine what happens to your property – on your terms. With a will you can leave your property to whomever or whatever entity you want, ensure that any minor children get proper care and settle financial concerns that would be left to your grieving loved ones. In New York, the alternative to passing without a will, is “Intestacy” and not your own wishes, but by a set of laws called the Estate Powers & Trust Law (EPTL) which will control how your property shall be distributed.
These New York 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 New York Court cannot find living relatives either by blood or marriage, then your assets pass to 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.
- 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 a NY attorney to better ensure that your wishes are carried out. For example, retaining a New York attorney:
- shall help you to manage tax consequences of your choices, which are often complicated;
- shall 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;
- shall make your will “self-proving” by preparing affidavits for your witnesses that will speed up the court process, or “Probate”;
- shall guide your Executor through the probate process and carry out his/her duties; and
- may safely store your Will and other documents.
Lawyers can also handle more complicated wishes, like disinheriting certain relatives, or planning for someone contesting your Will, or mediating family disputes before they arise. With a little bit of planning, and the assistance of the right New York counsel, you can ease the pain of your passing for your family and loved ones.