So, you don’t have a will …
What happens at death is psychologically difficult for many of us to deal with. There are almost always more pressing issues than planning for what will happen when you die.
A majority of people die without a will. This means that there is no clear message to the family about what a person’s assets are, where those assets are located, what should happen them, and what arrangements that person has made for his or her body or funeral.
In NY State, a will is a legal document witnessed by at least two people who are not “interested” in the assets of the person who is signing the will. The will sets forth how the assets (no matter how small) will be distributed by the person designated to gather and distribute them (the Executor) upon death. If you do not have a will when you die, then you allow NY State to decide who gets what, without regard to your wishes or your heirs’ needs, through the laws of “intestacy.” In today’s world of blended families, long lost cousins, and global assets, it is advisable to think about, organize and have an attorney draw up your will.
Making a will is especially important if you are parents of young children because you will want to designate who will have guardianship of the children. You may consider separating the physical guardianship of the children from the guardianship of the money intended for those children. Obviously, depending upon your assets, you can make many different provisions for your family, including attempting to protect your assets from Medicaid and estate tax.
You may amend your will at any time, and should review it periodically, especially when your family changes (divorce, marriage, death, birth of children, etc.). At the same time, you should review the beneficiary designations for your 401(k), IRA, pension and life insurance policies, which automatically transfer to your beneficiaries when you die. You will even need a will if you have a lifetime trust in place to hold most of your assets as the will ensures that any property you failed to transfer to the trust during your life is properly dealt with when you die.
What else do you need? Two other documents, the Health Care Proxy and Living Will are also documents that are generally drafted at the time you execute your will.
The NY Health Care Proxy Law allows you to appoint someone you trust to make health care decisions for you if you lose the ability to make decisions yourself. By appointing a health care agent, you can make sure that health care providers follow your wishes. You can appoint one for temporary inability to make health care decisions or in the event of permanent inability to make health care decisions.
I use the NY State Department of State form, click here.
A Living Will is a legal document that provides a doctor, hospital, family member and healthcare proxy direction, preferences and wishes as to particular life prolonging medical treatments, where you either suffer from a terminal illness or are in a permanent vegetative state. Here is an example from the New York State Bar Association, click here.
The bottom line is that it may be time to do some spring cleaning and prepare for the inevitable.
If you would like to see a legal topic covered or would like to comment, please send me an e-mail to email@example.com. Peter Klose practices law and lives here with his wife and three children. You can reach him at (845) 727-7727 and at www.kloselaw.com