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Shhhhh! You Might Not Even Need a Will….

Shhhhh! You Might Not Even Need a Will…. by Tom Sciacca

{Read in 9 minutes} Very often, people have preconceived notions of what happens to their assets if they don’t have a Will. The most common one that I hear is, I know I need a Will, because if I don’t have a Will, the state takes everything . . . but really, nothing could be further from the truth. Most states have statutes creating a pattern of distribution known as intestacy. Intestacy refers to the law that describes who gets what if a person dies without a Will.

Why is it important to understand the laws of intestacy? Here are two very good reasons:

– First, not everyone NEEDS a Will. If the laws of intestacy provide the identical distribution pattern to the one that a person would create if he or she sat down and wrote a Will, there may not be a point in writing a Will.

– Second, the people who are entitled to inherit under the laws of intestacy are those who can challenge your Will. For those clients who are concerned with potential challenges and are looking to create an estate plan, it’s important for the client to identify these people and have realistic conversations with their estate planning attorneys about whether or not a probate challenge is likely.

As an aside, I know that I post my blog articles to many, many social media sites — and I know that many, many attorneys will read them. I can already sense their eyes rolling back in their heads when I suggest that someone may not need a Will — and I won’t be surprised if I get a large number of responses. Like anything else, if you ask five attorneys their opinion about Wills, you may get seven different opinions. My personal opinion is that maybe not everyone needs a Will. There are lots of great arguments in both directions. Educate yourself and make your own decisions.

So let’s look at what happens if somebody dies intestate (without a Will) in New York State. A deceased’s closest living relatives will inherit their assets, in this order:

1. If a person dies with a spouse but no children or more remote descendants, the spouse gets everything.

2. If a person dies with no living spouse, but leaves living children, the children will split everything in equal shares. The shares of pre-deceased children will go to the children of the deceased child(ren), if any.

3. If a person dies leaving both a spouse and descendants, the spouse will receive the first $50,000.00 and half of the remaining assets, with the balance of the remaining assets divided among descendants as described above.

See what I mean? The “default” way the intestacy law works may be something that a lot of people want. For example, it’s very common for a married but childless client to say, “I want everything to go to my spouse,” or for the widowed/divorced/unmarried parent to say “I want my children to split things equally.”  Well, guess what? That’s exactly what the law of intestacy provides. Whether or not that client writes a Will, all of the assets payable to his Estate will wind up exactly how he wishes under either of these scenarios. So, as an attorney (and I think an ethical one — hopefully, your view, too) what possible value could I give my client by charging money to write this Will? Again, this is a personal decision and attorneys may differ on it. I am just stating my opinion.

Where does intestacy turn into a hot mess? Well, intestacy gets pretty gnarly when you get to more remote family members. For example, once you’re outside of the so-called nuclear family of a spouse, children, or even the parents of the deceased, you may be looking at things going to the deceased’s siblings or nieces or nephews — or if the deceased was an only child, you might wind up with a situation where you have assets going to grandparents, aunts, uncles, first cousins, or first cousins once removed (your first cousins once removed are the children of your first cousins). Once you get to that level, the intestacy law may diverge a bit from what the deceased would have wanted if he had sat down and written a Will. Or not. A lot of times, people may not be close to their very extended family (or sometimes not even their most immediate family) and may want to write a Will to overwrite this intestacy default.

But be careful those of you who are married and have children. Note point #3 above – if you die intestate with both a spouse and children, the intestacy law requires distribution to both spouse and descendants. Many people wish to provide exclusively for their spouse, giving only to descendants upon the death of the second spouse. These people may be poorly served by the intestacy statute and should consider writing a Will.

Another issue once you get to this level of family relations is that you may have people who all want to fight over which one of them is appointed as the Administrator of the Estate. Unlike when you select an Executor in a written Will, the person who becomes the Administrator of an Estate is determined solely by kinship, although the Administrator and the Executor perform more or less identical tasks. If you have a strong preference concerning who should manage your Estate, you should either identify who will be your Administrator or write a Will.

In summary, why do people decide to write a Will? Well, some just feel that it is a very mature and responsible thing for them to do. Sometimes, people like the substance of the default, but they want to change the way that the plan is carried out. For example, a married couple may be fine with the spouse inheriting everything but the children inheriting if the spouse does not survive. However, there is going to be a difference depending on whether those children are minors or adults. If the children are minors, the parents may wish to write a Will to modify the intestate default so that any inheritance their kids receive can be held in trust until they reach an age when they are financially responsible.

It is a perfectly reasonable decision if you decide that you don’t need a Will, so long as you understand what the default intestate distribution pattern is, and whether or not it fully expresses your wishes. If it does, that may be perfectly fine. If it doesn’t and you wish to deviate from it, it is likely a good idea to speak to an attorney and write a Will. In addition, a Will is a great place to express your wishes concerning the disposition of your remains (burial versus cremation). Absent stating otherwise in a Will, your closest family members will make these decisions on your behalf, so it’s important to give them some instructions.

For more information, contact Tom Sciacca or an attorney of your own choosing.

Thomas Sciacca


Thomas Sciacca
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(212) 495-0317