Wills, Trusts & Estates - Frequently Asked Questions

Why do I need a will?

The main reason for making a will is to distribute your property to persons you care about in a manner you see fit.  Wills allow for an efficient allocation of your estate and may decrease financial burdens on those left behind.  Additional benefits of estate planning include the creation of a healthcare proxy, a power of attorney, or a living will.

If there is an established will then a probate proceeding will ensue with Surrogates Court.  Here, a named executor distributes the assets of the estate in accordance with the will’s instructions and applicable NY law.

Who can contest a will?

Generally speaking, objections may be filed by any person whose interest in the deceased’s property or estate would be adversely affected by the admission of the will to probate proceedings.  The most common contestations of a will may come from a spouse, children, beneficiaries, or heirs at law.  There are specific time restraints to file such objections which should be discussed with an experienced estate attorney.  Reasons to contest a will include but are not limited to mental incapacity, fraud, undue influence, and duress.


What property passes outside a will?

A surviving spouse is guaranteed $50,000 or at least one third of the decedent’s estate (whichever is larger) whether or not a will exists.  In addition, any assets placed in a trust or joint ownership may be excluded from the estate’s total value including joint bank accounts, life insurance where there is a named beneficiary, or retirement accounts with a named beneficiary.  Lastly, creditors may have priority to collect on outstanding debts before property is distributed in accordance with a will.


What happens if I die without a Will?

If a party dies without an established will,also known as dying intestate, then the estate may be distributed through an administration proceeding.A court will appoint an administrator to allocate the deceased party’s property in accordance with the New York Intestate Law.  Typically, property and assets will be distributed proportionately to the next closest relative.  A normal order of inheritance will consider the surviving spouse, children, grandchildren, father or mother, then any brothers or sisters and uncles or aunts. Without having a properly drafted will, there is little assurance that an estate’s assetswill be distributed in accordance with the deceased’s final wishes.

 

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