Making a Will? 10 Things You Need to Know

ONE: What happens if I don’t have a Will?

If you don’t have a Will…

The Laws Of New York Consolidated Laws: Estates, Powers & Trust

Article 4: Descent And Distribution Of An Intestate Estate

  • 4-1.1 Descent and distribution of a decedent’s estate

The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:

  (a) If a decedent is survived by:

 (1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.

  (2) A spouse and no issue, the whole to the spouse.

  (3) Issue and no spouse, the whole to the issue, by representation.

  (4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.

  (5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.

  (6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving grandparent or grandparents of one parental side, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving grandparent or grandparents of the other parental side, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.

TWO: Do I really, really, REALLY need a Will?

Maybe not, IF things are perfect 

Maybe not, if you’ve thought through things carefully, and when you die:

  • No one in your family (“your beneficiaries”) is sick, or needs special help, and is not in trouble with creditors, health/drug problems. or matrimonial issues, and
  • Your business planning includes an air-tight succession plan, that pleases everyone involved, and
  • You’ve used beneficiary designations is a fair, consistent, logical way that is perfect for the exact time you die, and 
  • You don’t need special help, assisted living, skilled nursing, and neither does anyone else in your family.

If you skip a Will, and many do…

Most estimates say that about 55% of Americans don’t have a Will. This might happen:

  • Children, spouses and ex-spouses, and siblings will fight. And fight. And fight. (It will be expensive.)
  • Sentimentality will clash with practicality. Your collection (engagement ring, grandma’s dishes, stamp collection) is priceless?  To some, these items most certainly have a price.
  • Your pets may not get the care they deserve or you intended for them. (Yes, there is such a thing as a “Pet Trust.”
  • The whole funeral thing may be controlled by others. You wanted a happy party where friends gather and share funny stories about you? Leave directions!

Three: What do I need to know to make a Will?

Before a Will: Get Organized

  1. What do you own? (“assets”) Bank/brokerage accounts.  House.
  2. Who do you owe? (“liabilities”) Mortgage.  Personal notes.
  3. What do you own with others?  (“jointly”)  Your home?  Bank accounts?
  4. Who do you want to manage it when you die? (Your “executor”)
  5. What if your named executor can’t manage your affairs?
  6. Do you have minor children?  Who will take care of them?  You need a plan.

FOUR: Is a Will all I need?

What “goes with” a Will?

A “Health Care Proxy” goes with a Will, but you can have one even if you don’t have a Will.  What if you get sick, but don’t/might/who knows?  The HCP allows someone you trust to make health care decisions on your behalf, if and when you can’t make those decisions.

A “Living Will” is a complement to an HCP.  An LW is a written statement of your specific health care wishes in case you become unable to discuss this.  Having this in writing allows you to meet NY’s standard of “clear and convincing” evidence that these are your wishes.

A durable  “Power of Attorney” is a legal document that allows someone to act on your behalf. (Like, sell your house, access your bank accounts, file your taxes).  This ENDS AT DEATH.

An “Appointment of Agent to Control Dispositions of Remains.”

A “Personal Property Memorandum” or “Explanatory Letter.”

FIVE: What can a Will do for me (and my family/community)?

A WILL can direct may things

  • Who is in charge?
  • What can they do?
  • How things should be handled—debts, child care, businesses?
  • Where property goes, and in what form
  • Charitable gifts

SIX: What happens if I have a Will and things change?

What THINGS change?

  • Someone dies, like a beneficiary or your executor?
  • Get married?
  • Have kids?
  • Someone in your family gets sick?
  • You inherit money or maybe, win the lottery?
  • Do you (want to) sell, change, or obtain a business?


Then you have to revisit your Will and change it.

SEVEN: When does a Will take effect? (Seems so simple…)

A WILL takes affect when 

UH…when you die…AND… and when the Surrogate Court says its valid.

What makes it valid? IN WRITING, DATED, SIGNED BY THE MAKER IN FRONT BY TWO WITNESSES, who are swearing that you are over 18, not under duress, understand what you are doing, doesn’t look like fraud. 

You can avoid probate (not the worse thing in the world) with A TRUST

EIGHT: Is a TRUST better than a WILL?

What the heck is a Trust?

WILL – a legally enforceable document telling the (1) executor how you want your affairs handled and assets distributed to (2) beneficiaries after your death

TRUST – a legally enforceable document where (1) you tell your (2) trustee(s) how to handle your assets for the benefit (3) beneficiaries.  These instructions can include the time when you are alive.

THIS IS GREATLY SIMIPLIED (and to make matters more complicated, you can set up a Trust in your Will).

A Revocable Living Trust can be a Will substitute.  That is, if properly set up AND FUNDED AND MAINTAINED, it can distribute assets without going Surrogate Court.

NINE: One more thing: it’s your last chance to…

Leave a Legacy?

This is your last chance.  What/who made a difference in your life? 

Your family, obviously, but anything else?

  • Church, temple, ashram?
  • Education?
  • Hospital, medical treatment, or research?
  • Pet?
  • Community group? (Music, counseling)?
  • The Library (“The White Plains Library Foundation”)?

What groups have your supported during your life?  You can (probably) do more in your Will.

The overwhelming number of “planned gifts” are bequests.

TEN: Have I convinced you?

Do I need a Will? Estate Planning?

Hint: the answer is YES.