Estate planning is the process of determining how your assets will be distributed after you die. It’s not a fun task, but it is essential. Without a will, your estate (meaning your money, property, and belongings) could be distributed under the law in a way that would have made you very unhappy when you were alive.
What Are Wills And Trusts?
Wills and trusts are both legal documents that spell out what you want to happen to your estate after your death. Wills must go through probate, a court process in which the will and your wishes are verified. A trust is not required to go through the probate process. Your will names an executor, who is the person who will notify the authorities about your will and oversee distribution of your assets. Upon your death, your estate will enter probate, which can take a while, especially if the estate is large or complicated.
Trusts created during your life (instead of in your will) are called living trusts Living trusts are somewhat different and a bit more complicated to set up as you have to transfer everything you own to the trust before you die. Plus, you still need to create a will to serve as a backup plan for the living trust. But if managed properly, a living trust does not need to go through probate upon your death.
You can change wills easily and whenever you want. That’s not the case with a living trust, where additions and subtractions to the trust require more paperwork and legal consultation.
What Happens If I Die Without A Will?
Dying intestate, or without a will, makes things very complicated. In New York, the courts will divide up your property according to specific state laws. This means people could end up with money or property that you had hoped would go to someone else. Wills also let you determine what will happen to your minor children and pets after you die; if instead the court has to decide, the outcome could be very different from what you intended.
How Do I Create A Will?
To create a will in New York – in a nutshell – you just need to create the document, sign it in front of two witnesses who will not benefit from your death in any way, and date it. The two witnesses will sign the will after you, including adding their addresses. While you can get do-it-yourself books for estate planning, it’s better to consult with an estate planning attorney who can review what you’ve done and ensure that you’ve followed all necessary legal conventions to make the will legally binding.
The slightly more detailed answer is that you need to think carefully about what you want to happen after you die. Do you have burial plans? Who should get custody of your minor children and/or pets? Who will receive money, and is there anyone you specifically do not want to receive anything? Note that in New York, your spouse and minor children may appeal to the court if you try to disinherit them.
You’ll also choose the executor. Make sure it’s someone you can trust to carry out your wishes. Often, this is a spouse with another family member listed as a backup if the spouse dies. However, it doesn’t have to be someone you’re related to.
Protect the original copy of your will. You can give copies to the executor or leave another copy in a safe deposit box; however, the original has to be easily accessible and in a secure location, such as in a locked filing cabinet in your home (opening a safe deposit box that doesn’t belong to you is not easy, and your heirs may face a long wait to have your safe deposit box opened, which is not something you want to happen after you die). Ensure the executor knows where the key to the cabinet is.
Contact the Law Offices of Lawrence Israeloff, PLLC, for help drafting a will and planning your estate.