Clients or prospective clients commonly ask whether they need a will. The short answer is yes (even if you have a trust).
Often these same individuals will explain to me that their assets are in trusts, or are jointly owned, or have beneficiary designations. They are correct in that these assets would pass to others without the need to use a will or go through the probate process.
However this is misguided.
Two questions for them:
- what if you acquire an asset and pass away without retitling with a joint owner? or name a beneficiary?
- What happens if a named beneficiary or joint owner passes before you?
The responses usually are something to the effect of: “it won’t happen to me” or “I’ll name alternate beneficiaries,” etc. My response is why not be absolutely certain that the individuals or institutions you desire, in fact, become your beneficiaries.
Hopefully, with advance planning, the last will and testament will never need to be used, but should a joint owner or beneficiary pass before the client the will would act as a safety net and make certain the client’s wishes are carried out and his or her beneficiaries receive their intended inheritance.
Without a will, New York State would make a will for the client as to the particular assets and the assets may pass to unintended individuals; this is known as the laws of intestacy. Additionally, certain people would have priority right to become the client’s administrator which may be in opposition to the client’s wishes. An administrator is the legal equivalent of an executor, and has similar powers to an executor. This person with priority rights may not be the individual the client would have named in charge of their assets; a potentially dangerous situation.
Short answer – make a will, name your beneficiaries, and name the people you trust to be in charge of your assets and to settle your bills and affairs.
Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.