BASICS OF WILL DRAFTING PATRICIA J. SHEVY, ESQ. THE SHEVY LAW FIRM LLC
[email protected] The Importance of Having a Will A Will sets forth a person’s directions with respect to the direction of his or her assets after death. Without a properly executed Will, the laws of intestacy will apply to the distribution of a person’s assets. Many clients assume that the laws of intestacy will suffice. However, what happens in the following example: Husband and Wife have 3 minor children. Husband has $700,000 in assets. Wife has $1,000 in assets. The house is owned jointly by Husband and Wife. Husband dies. Wife keeps the house as surviving joint tenant. The remaining $700,000 is divided between Wife and children according to the laws of intestacy (Wife receives $50,000 plus ½ of the remaining $650,000; the 3 children split the remaining $325,000). But remember the children are minors, so the court will be involved until the youngest child reaches majority. This is probably not the outcome Husband and Wife had in mind. Problems with Intestate Succession When a New York State resident dies leaving no Will, the assets of the decedent will be distributed under New York Estates, Powers and Trusts Law (“EPTL”) Article 4, which lists the order and amount that family members will take from the estate of the decedent. In cases where a person dies intestate, EPTL §4-1.1 provides that a decedent’s assets will be distributed as follows: . If survived by a surviving spouse and children, the spouse receives $50,000 and ½ of the balance.