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December 08, 2008

The Need for a Will

In 1540 the English parliament enacted the Statute of Wills which, for the first time, enabled plain English folk to pass their wealth down to whomever they chose. Prior to that time, upon the death of a property owner, his land would be given to the oldest male heir. Under the new Wills law, you could inherit property regardless of whether you were first born, or even if you were female. All that was necessary to take advantage of the new law was for the owner to make a Will prior to his or her death. As for whether the owner could even write, I have no idea.

We now have our own Statute of Wills in New York State, called the "Estate Powers and Trusts Law (EPTL). The EPTL contains the rules for making a valid will. If you fail to follow these rules then your Estate Plan may be frustrated. You need your will to be made by an Attorney because he or she has studied these rules extensively in law school and you haven't. It's too easy for the average person, using a Do-It-Yourself Will kit, to make a Will that will be rendered invalid by the Probate Judge. Then you're back to intestacy.

Intestacy is the state of dying without a Will, or dying with a an invalid attempt at a Will. Call it Will purgatory. The decedent's property ownership is suspended between his natural heirs and a Court appointed Administrator. The Administrator-nominee has to petition the court for authority to act for the decedent and then for a judicial determination of the rightful heirs. This is a lot wasted expense for the Estate because if the decedent had made a proper Will which contained the names of the Executor (equivalent of an Intestate Administrator) and the names of his beneficiaries there would be no question who is in charge and to whom property will go. Even in intestacy the property should be eventually distributed to the heirs, rather than the State, but the decedent loses all control over who gets what. All that matters is status as a blood relative.

In conclusion, everyone should make a Will because failing to take advantage of the Wills Statute means that the property is going to be distributed the way the State says it should go and this might not be your first choice.

Our law firm will draft a simple will for a nominal fee. We include in the package at no extra charge to the client a health care proxy, power of attorney, and body disposition designation. This way you will have all of the protection needed for today's Estate plan. Lastly, we also prepare Disclaimer Trust wills for couples with assets exceeding one million dollars. The latter is a specialized will which ensures full utilization of the Estate Tax Credit in larger estates.