By Daphne Stern, Esq.
When the issue of the need for a will or basic estate planning arises, there are various responses. Some people are embarrassed that they have not given this matter any attention. Others are surprised that anyone would raise this issue at all. Many people respond in this vein: “Why would I need a will? I’m not Rockefeller … Bill Gates … the Powerball jackpot winner … or (fill in your own fabulously wealthy figure).” Others assert, “I just want everything to go to my spouse, so I don’t need a will.” Even responsible parents may shrug it off, saying something to the effect of, “I’m not worried — my mother will take care of my kids.”
I have heard many comments and a good number of excuses. But the question remains: Who really needs a will?
The following are the most basic reasons that everyone should have a will and simple estate planning documents, no matter how modest your asset holdings and no matter how straightforward your family relationships.
You have minor children. This is the number one reason to have a will. If you have children under the age of eighteen, you need to name a guardian in the will who will be responsible for their personal and financial care in the eventuality that both parents are deceased. If you wish to select the individual who should be given this important responsibility, the simplest method is to name the guardian in your will. Failure to make a guardian appointment will result in the court appointing a guardian. While family members may petition the court to be appointed, you will have no way of ensuring that the family member you think best suited for this role will be appointed. In addition, leaving the decision to family members at a stressful and emotional time could result in strife and bitter disagreement among them. This is clearly not in the best interest of your children. These problems could all be avoided and your children’s care ensured by naming a guardian in your will.
You have a spouse. If you are married, you in all likelihood wish to leave your home and other assets to your spouse. Many people assume that, by law, their spouse will inherit all their property. However, under New York Estates, Powers and Trusts Law, if a person dies without a will, the spouse will inherit $50,000 and only half of the decedent’s assets, with the other half passing to their children. A will can distribute your assets in the manner that you feel is best for your spouse and children.
This issue is even more significant when there is a second marriage, blended family, and stepchildren. There are situations where a person would like to provide for his spouse but, ultimately, upon the spouse’s death, would like his assets to pass to his children, rather than the spouse’s heirs. This could be planned for and accomplished in a person’s will.
You do not have a spouse or children. If you are not married, have no children, and have not signed a will, again New York law will govern. In that case, your assets will pass to your parents. If they are not living, your assets will pass to your siblings. This may not be what you wish. You may want to leave your assets to others, such as nieces and nephews, cousins, or friends. You may want to leave certain amounts to tzedakah. Also, depending on the financial situation of your family members, receiving this inheritance may not be in their best interest. For example, if you have a sibling who is receiving government assistance, receiving a portion of your assets may disqualify the sibling from receiving such assistance. In the case of parents inheriting, this will increase the size of their estate, and may subject them to estate taxes they may not otherwise have to pay. Also, since these assets will be owned by your parents at their death, it will be your parents’ heirs who ultimately receive your property, and this might be very different than what you intended.
You might need to be hospitalized for something. If you are unable to make your own medical decisions, it is important for you to have designated a health care proxy who is authorized to make decisions for you. This is the case even if a person is temporarily unable to speak for himself and a decision needs to be made—for example, if an individual is having surgery and is under anesthesia, and an additional medical procedure must be performed. The health care proxy document is a simple document in which you make this designation. Also, you may name a successor health care proxy if the initial person is not available to act. This document is authorized by New York law, and all hospitals and medical facilities are required to respect it.
You should state in that document that your health care proxy may make decisions about artificial nutrition and hydration (i.e., feeding tube and intravenous nutrition). The absence of this language precludes the Proxy from making such decisions. You may also include in this document other express instructions for your health care proxy. For example, you could specifically provide that all health care decisions must be made in accordance with Jewish law.
In 2010, New York State enacted the Family Health Care Decisions Act, which provides a list of individuals who may make health care decisions for an incapacitated person in the absence of a health care proxy document. There are two problems with this. First, as in the case of guardians as discussed above, the person designated by law may not be the person you would choose. Particularly if your spouse is not available, you may wish to name someone as successor other than “next of kin.” Some close family members may not be comfortable in a medical setting, may not be able to make decisions, and may not think clearly in case of an emergency. This is an important designation that should be made by you, not by the New York legislature.
You have a family member with special needs. When a family has a child with special needs, it is particularly important that there be a will. First of all, the guardian appointment for a minor child is even more important and requires the selection of the proper individual. Second, as touched upon above, if the child is enrolled in any government programs or is receiving any government assistance, an inheritance must be properly structured to ensure that he receives the support he is entitled to. A supplemental or special-needs trust could be included in the will to provide for the child and at the same time preserving his benefits.
As this discussion demonstrates, most everyone requires a valid will and basic estate planning documents. Of course, there are a host of other reasons that an estate plan is necessary and advantageous. Planning for business succession, minimizing estate and gift tax, bequests of family heirlooms, and elder law planning are some of the issues best addressed in a properly structured estate plan. And while the topic of estate planning may be difficult to face, you owe it to your family to provide responsibly for their future.
Daphne Stern, Esq., is an attorney practicing in Woodmere. She specializes in the area of wills, trusts, estate planning, and estate administration. Daphne can be reached at 516-295-0962 or by email at firstname.lastname@example.org.