Wills

What is a will? A will, sometimes referred to as Last Will and Testament, is a legal mechanism for passing or distributing property and wealth without consideration (i.e., without anything in return). A will is basically a set of instructions on how you want your property and wealth distributed. A will can precisely direct who gets what property and when, and even for how long. You can appoint an executor in your will to administer your estate. Wills are public documents. See an example of a will here. This is the will of Senator Edward M. Kennedy who passed away in 2009. Note that he used the will to direct his property into a trust he previously established, to be managed and distributed according to the trust terms. Trusts and estates are frequently used together with wills to achieve a number of tax, administration and asset protection advantages. See the Trusts and Estates page here for more information.

Why do I need a will? You need a will to distribute your property and your wealth the way you want. Your intent is paramount when it comes to distributing your property. However, the distribution frequently takes place after the death of the property owner, so ascertaining the owner's intent is no longer possible unless there is a clear set of instructions left for the distribution of property and wealth. We spend our lives to attain financial security for ourselves and our families. As we do that, we usually accumulate wealth and property- real estate, personal property, and intellectual property. After spending a lifetime of building up wealth and property, you can, and should, determine how they are distributed.

Without a valid will (or previously settled trust), state law governs the distribution of your property. In other words, property either passes by operation of law because of the way title is held in the property, or it is passed by intestacy rules. People who do not have a will to govern the disposition of their property risk leaving their property to individuals they did not intend to benefit in the first place.

Also, a court will appoint an administrator to oversee the distribution of your property if you do not leave a valid will or trust naming an executor or trustee to do that. The court will also appoint a guardian for your minor children, to manage their share of your property. Although typically the surviving spouse is appointed, this is not guaranteed, and your children's money may come under the management of someone you don't even know. This guardian may not make the best money management or investment decisions.

Furthermore, people who die with no heirs risk their entire wealth and property passing to the state (this is called "escheat") if they have done no estate planning to direct the distribution of their property. A will ensures that doesn't happen and the proper beneficiaries are named, notified of their inheritance, and take their share.

Finally, making sure that your wealth and property are distributed according to your wishes usually helps avoid fights over inheritance among beneficiaries. In fact, in most states, a will may be designed to prevent a disposition of wealth or property from taking effect in case the will is contested by a beneficiary. In other words, if beneficiaries challenge your decisions in court because they think they are entitled to a larger share of your wealth or property, they may lose any and all entitlement to their share of the inheritance. A well-drafted will may also spell out why any particular beneficiary is getting a different amount of property or wealth than other beneficiaries. This helps avoid resentment among beneficiaries, who are usually family members, by explaining the reasons behind bequests.

I don't have that much property or wealth, why do I need a will? You need it for the same reason that everyone else does - so that your wishes regarding your property are carried out. The only person who will not benefit from a will is the person who does not have any property.

Why doesn't everyone have a will? Everyone should. However, there are two primary reasons why everyone doesn't have a will. First, you have to come to terms with your own mortality. People are uneasy to engage in planning events to take place after their death because for that they must say to themselves "one day I will die." Once they treat death as the natural conclusion of life, and understand the tremendous advantages having a will gives them in distributing their wealth and property, they usually come around and take great pleasure at deciding how to distribute their wealth. This gives them a peace of mind in knowing that their wishes regarding their property will be respected and carried out and that their loved ones will be taken care of. Second, people usually assume that they still have a long life ahead of them and can still plan the distribution of their wealth and property later, without losing anything. This is a mistake because death can be sudden and unexpected. It doesn't matter if you live five months, five years or fifty years - you should have a will to distribute your wealth and property should something happen to you.

Why should I use your services to draft a will? Wills are legal documents with a long, complicated legal history behind them, and they depend on many state-specific laws. There is also no room for error: certain strict formalities must be followed, or a will is not going to be valid or enforceable. Therefore, you should always speak to a knowledgeable attorney about drafting your will that you will be satisfied with. Holographic wills (handwritten wills signed by the testator without witnesses) are recognized in some states but not in others, and these holographic wills create many more problems than they resolve.

How frequently should I update my will? A good rule is to update your will (1) at least every five years; (2) when federal or your state's tax laws change; (3) when events occur that affect the distribution of your wealth and property; (4) or when your wishes regarding your property distribution change. Common examples of these events are marriages, divorces, births or adoptions, or deaths of persons to whom you wanted to leave a part of your wealth or property. There are some laws that deal with these kinds of situations, and a good will should account for these contingencies. However, there is no reason not to "catch up" and refresh your disposition instructions if possible.

One of the more famous examples of why a will should be updated is the Anna Nicole Smith case. After 15 years of litigation, her estate (she passed away before the dispute was resolved) was denied millions of dollars because her husband, millionaire J. Howard Marshall, did not change his will to leave a disposition to Ms. Smith. They were married for 14 months before he died, so there was ample opportunity to make changes. It is not always possible to change everything if you employ certain kinds of irrevocable trusts in addition to a will, but between a will and a trust, there is usually enough of a leeway to modify the distribution instructions.

What is a living will? A living will is a set of instructions regarding your health care that you want carried out should you become incapacitated and unable to make decisions. The directives usually include instructions on the use of cardiopulmonary resuscitation, assisted feeding, assisted breathing, and other life support methods. The living will can be coupled with a power of attorney for health care to allow for more flexibility.

If you are looking for an attorney to help you draft and execute a will, please contact attorney Leonid Mikityanskiy at our Brooklyn office at 718-256-3210