Do you need a Will

THE LEGAL CORNER

By

Rick S. Cowle

IS A WILL REALLY NECESSARY?

A Will is a document in which a person directs his or her assets to be distributed upon death. A Will can be drafted in numerous ways so that a person's affairs are handled according to his or her wishes. For example, a Will can be used to appoint a guardian for a minor child or for an incapacitated person. A Will can also be used to appoint a guardian to manage assets for a minor or for one who cannot manage their own affairs. A Will is also necessary if someone wants to leave specific property to a person. For instance, if a person wanted to leave a special diamond ring to her friend, or a painting to her uncle, these "specific bequests" would be done through the Will. One can even direct the ownership and care of his pets in a Will.

It should be noted that any assets with named beneficiaries such as life insurance policies or retirement accounts will not be affected by a Will. Even real estate that is owned jointly with rights of survivorship or for married couples (termed tenants by the entirety) will not be affected by a Will. For instance, if a house is owned by two people and the deeded ownership is listed as "joint tenants with rights of survivorship", upon the death of one of the parties the house automatically goes to the other party. It should be noted that a Will can never supersede an asset that has a named beneficiary. The asset must be automatically transferred to whom-ever the named beneficiary is regardless of what the Will may state about the asset.

In situations where one has minor children, a Will is critical to have. This document allows a couple or single parent to choose who they want to be the guardian for the child as well as for the assets that are left to that child. Otherwise, if there are no guardians appointed in a Will, the Court System will then choose the guardian for the children if both parents pass away. Most parents would not want the caretaker of their child to be selected by the Court.

A Will can also assist in saving on estate taxes, especially in situations where one's assets exceed $3,125,000.00 (Present NYS Estate Tax Exemption). If one is fortunate enough to be in this asset bracket, more in- depth Estate Planning may be required.

If one neither requires estate planning, nor has minor children, nor has any desire to make specific bequests or have other unusual requirements, a Will may not be necessary. In a case where a person dies intestate (without a Will), the distribution of their assets will simply be made to their surviving family members as per the NYS Estate Powers and Trusts Law.

So, a person must decide what their own personal desires, needs, and tax consequences are when choosing whether to have a Will or not. As always it is recommended that one consults with professional legal and tax people when making their estate plans.

Rick S. Cowle is an attorney admitted to practice law in New York, Connecticut, The District of Columbia and The United States Supreme Court. He is president of The Law Office of Rick S. Cowle, PC a general practice law firm located at 95 Gleneida Avenue, Carmel, NY 10512, (845) 225-3026, e-mail: RCowle [email protected] Comcast.net, Web Site: RCowleLaw.com

This article is meant for informational purposes only, and is not intended to create an attorney client relationship or to give legal advice