Wills and Estate Planning

New York Estate Lawyer Robert Adler has been helping families prepare wills and trusts for over 30 years.

A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of your minor children after your death. A will is among the most important legal documents that you will ever sign.

When you create a will, you will be able to designate how your estate should be divided, determine who will receive your property, set up trusts, and designate a guardian for your minor children.

What Happens if You Die Without a Will?

If you die without a will, state law will determine the distribution and management of your estate. This is known as the law of intestacy. Through these laws, each state, in effect, draws your will for you – determines “who gets what” – according to what seems most equitable for the greatest number of its citizens. The problem with these laws is they are designed for general application and rarely suit individual circumstances. Preparing your will assures that your property will go to the people you choose.

Naming a Guardian for Your Minor Children

Barring exceptional circumstances, if your child’s other parent survives you, then that parent continues as the child’s guardian. However, you need to provide for the possibility that the other parent may not be alive at the time of your death.

A guardian is legally responsible for the child’s physical care, health, education, and other daily needs until he or she reaches 18 years of age. Among the issues to consider in selecting a guardian:

• Is the person willing to serve as guardian?
• Does the person have a good relationship with your child or children?
• Does the person share your values, ethics, spiritual beliefs, and morals?

While the guardian is not responsible to meet the child’s financial needs with his or her own property, they are responsible for managing the child’s property. If you believe that the best person to raise your child is not the best person to handle the finances, then you can name a separate person to manage the child’s finances (known as a “guardian of the property”). Another option is to create a testamentary trust to manage the child’s inheritance. In this case, the trustee manages the child’s finances.

You should discuss your decision in advance with the prospective guardian to ensure that they are willing to accept the responsibility. It is wise to name a backup guardian in case circumstances change and your first choice is unavailable.

Will Executors

An executor is entrusted with the task of winding down the deceased person’s financial affairs and protecting estate assets. Most executors are close family members, with spouses, children, and parents being the most common. It is wise to name a backup executor in case circumstances change and your first choice is unavailable.

Executors typically perform the following functions:

• Pay estate bills and taxes.
• Notify financial institutions of the will-maker’s death.
• Notify government agencies of the will- maker’s death.
• Maintain and safeguard property until the estate is settled (for example, upkeep of a house).
• Distribute assets according to the will.