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Last Will and Testament Elder Law


Last Will and Testament Elder Law

A Last Will and Testament (“will”) is a written document, signed and witnessed according to state law, which 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 has statutory requirements for the dissipation of your assets.

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 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.

Some considerations:
  • A properly drafted will not only controls who will receive your assets at death but, when they will receive 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 last will and testament 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 IRAs, 401(k)s and life insurance, to name a few.
  • Competent attorneys practicing in this area ensure life insurance, IRAs, 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.
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