A Last Will and Testament ("Will") is a written document, signed and witnessed according to state law that controls the disposition of assets that remain in the decedent's name at death. Many assets do not pass under a Will, but instead, by beneficiary designation or by contract. If you are a New York resident and die without making a Will, New York will impose one on you. It has been our consistent experience that New York's substituted Wills rarely accomplish our clients' goals. For example, if you die and are survived by a spouse and children, New York's law provides that 50% of your assets pass to your spouse and the balance equally to your children. A common myth is that if you have no Will, your assets escheat to the state.
A properly drafted Will not only controls who will receive your assets at death, but also the timing of their receiving those assets. A Will is a flexible tool that allows for the protection of assets from creditors and nursing home expenses and for the establishment of trusts for children, the disabled and/or a spouse if the beneficiary is not mature enough, responsible enough or otherwise competent enough to manage his or her own financial affairs. A Will provides for the appointment of a guardian of infant or incapacitated children. Wills are routinely used to eliminate or substantially reduce state and Federal estate taxes.
Drafting Wills can be simple or complex depending upon the goals to be achieved and being mindful that estate planning also contemplates the integration of other assets that pass outside the estate, such as IRA's, 401(k)'s and life insurance, to name a few. Competent attorneys practicing in this area make sure life insurance, IRA's, 401(k)'s, 403(b)'s, annuities and other testamentary substitutes are coordinated with the overall objectives to be accomplished by the Will, often placing a premium on doing so in a tax efficient way. Creating a trust for an infant child under a Will and not naming the trust as the beneficiary of the life insurance policy, for example, is a critical mistake that undermines the goal of delaying a child's entitlement to receive that wealth until they are mature enough to manage their own financial affairs.
In order to properly draft a Will, the estate planner must have a comprehensive understanding of the client's needs. We typically ask our estate planning clients to complete an estate planning questionnaire to the best of their ability and bring it with them to our initial meeting. Once we have an accurate understanding of your financial position, be it modest or substantial, we can review your estate planning goals, make recommendations and prepare the proper estate planning documents in an efficient, affordable way.
It is not uncommon for some of our new clients to be reluctant to complete this questionnaire until after meeting with us for the first time. After all, the new client has never met us and is unsure if they want to work with us. We understand. We appreciate that everybody's assets, goals, and family dynamics are unique and that in order for any planner to marry your goals with legal advice, a complete understanding of your financial position is a prerequisite. We will work together to accomplish that goal.