Elder Law, Wills, and estate planning go together. Everyone has heard stories of the havoc that is caused when someone with money dies without a Will. It’s a reality lawyers see all the time. Not having a Will that clearly expresses your intentions and instructions regarding the distribution of your assets upon death can be a recipe for family trouble. Working with an experienced Will attorney in NYC, Westchester, and the NY Metro area can help limit or avoid this problem.
A Will is a legal document that states your final wishes for how the assets that remain in your name upon your death should be distributed. Proactive Will planning allows you to name the beneficiaries of your money and property (and can exclude children or other relatives who you do not want to benefit). Your Will also names your executor, and gives other instructions, for example, regarding the care of minor children or pets.
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Without a Will, the default (intestacy) provisions of state law take over. Those provisions specify who will benefit from your estate, and the court will appoint an administrator. The beneficiaries specified by the intestacy provisions might not be the same persons who you would want to benefit from your estate, and the chosen administrator may not be the person you would have wanted to administer it.
Of course, whether you have a Will or not, a primary concern should be: will I have an estate? Assumptions about what you might leave your spouse, children, or others can be totally upset if you need long-term care and have not planned ahead. The cost of care can easily wipe out your entire life’s savings. Effective Elder Law planning can save all of your cash and assets if you plan early enough, or a substantial portion even if planning with an Elder Law lawyer is done at the last minute. An effective Elder Law plan will often include a trust as the main instrument of your estate plan, along with a Will.
Will planning with an experienced Will lawyer is still important, even for those clients whose estate plan has been implemented using a trust, joint ownership of assets, and/or designated beneficiaries. There are situations that arise regularly which end up requiring court intervention (probate or administration). In these cases having a Will facilitates the process of dealing with any issues that were not addressed by other means. That is why it makes sense to engage in Will planning in order to assure that your wishes are respected. These situations include:
- You might inadvertently fail to transfer assets to a lifetime trust, or die before the trust is funded (especially if transferring a co-op).
- Financial institutions lose beneficiary designations – it happens more often than one would like to believe. Banks get taken over, change computer systems, etc.
- A refund check is issued after the decedent’s death, and cannot be deposited without bringing an estate proceeding and opening an estate account.
- A landlord not giving access to an apartment, or a bank not allowing access to a safe deposit box.
- Receipt of an unexpected gift or inheritance from someone else.
For married couples, Wills are particularly important if Medicaid is in the picture. If, for example, the husband is receiving Medicaid nursing home care, and the wife dies before him without a Will, his Medicaid benefits could be terminated. In order to avoid or minimize this problem, she should have a Will excluding him as a beneficiary of her estate. Otherwise, if her Will provides that all of her assets are to be distributed to him, that would undo all of the Elder Law planning that was accomplished. Note that even when the Will excludes the surviving spouse as a beneficiary, Medicaid might still claim that he or she is entitled to the "elective share" (one-third of the estate) under New York law.
To schedule an initial consultation or to meet with an attorney to make a Will, contact Lamson & Cutner today.