By Stephen J. Wright, Esq.
I wish I had a dollar for every time someone approached me at the grocery store or the lumber
yard with, “Hey, I have been meaning to call you. I really need to make a will.”
As a young lawyer, I waited patiently by the phone expecting the call. A few of them actually did, but most of them procrastinated for months or even years before they called, and some of them have yet to call. It wasn’t until I was well tenured in my profession before I realized that estate planning must not be particularly exciting to people. Strangely, I had never considered that. I think they all knew deep down that taking charge of their plans was the right thing to do – if not for themselves, then for their families. Perhaps people don’t like to contemplate their own mortality. Perhaps it is because conversations about death and dying are not particularly pleasant.
The bottom line, however, is that planning for death does not make it any more likely to happen. It’s going to happen at some point to all of us, so we might just as well prepare for it. Those who plan accordingly generally experience a large sense of relief. This leads me to conclude that there is a great deal of unnecessary anxiety surrounding the estate planning process that really does not need to exist. I find myself spending increasing amounts of time dispelling common estate planning myths and convincing people that estate planning really isn’t that bad. So, indulge me for a moment to set the record straight.
The first myth surrounds what occurs when one doesn’t plan. Dying without a will is known
as intestacy. The laws of all 50 states contain similar rules that govern the disposition of individually titled assets in the event that one dies without a will. I like to call these the “default rules.” Contrary to popular belief, the State of New York does not inherit your assets, unless you have absolutely no relations surviving you. The “default rules” are designed to simulate what most people would have done with their assets had they thought to make a will. These rules turn entirely upon who survives one upon death. Spouses always inherit under intestacy, as do children. Other increasingly remote classes of relations benefit in the absence of a spouse or lineal descendants. It is important to note that children share in an intestate estate regardless of their ages even when a spouse survives. Because minor children cannot hold assets titled in their own names, a court may need to appoint a guardian of each child’s property until each child reaches adulthood. It is far more common for spouses with children to delay any financial benefit to the children until the death of the surviving parent, so making a will not only puts one in control of his own estate, it may also save the unanticipated expense associated with these guardianship proceedings.
For parents with minor children, the most important reason to make a will is to designate the
individuals with whom your children will live in the unlikely event that both parents should die before they reach adulthood and also how and when each child receives his or her share. Without such planning, the court will be forced to reason who will likely be in the best position to care for them, and your children will be entitled to share in your estate upon their eighteenth birthdays.
Other common myths surround the probate process. I have actually had clients tell me that they
preferred not to have a will simply because they did not want to “expose” their families to probate. Probate is nothing more than a legal proceeding to authenticate one’s will and to officially appoint a person or entity entrusted with the responsibility to administer the estate – the executor. Ironically, without a will, the proceeding is more burdensome in many instances, and sometimes, more expensive. Without a will, the court has to determine the individuals entitled to share in one’s estate and appoint an administrator to administer the assets. In some cases, the administrator must purchase and file a bond with the court.
Although it has acquired a bad reputation, the probate process creates a clean and concise mechanism in which to efficiently address issues that can sometimes arise surrounding the death of a loved one. Relative to many other states, probate in New York is neither expensive nor time consuming. Often times, people unnecessarily incur great expense to avoid probate, and in doing so, they create more problems than they solve. As between spouses, properly planned estates can avoid any court proceeding until the death of the surviving spouse.
My involvement as a Board member with the Chautauqua Region Community Foundation sheds
a bit of a different light on the need for estate planning. Despite the availability of a number of charitable estate planning options, simple will bequests continue to be the most popular means by which to benefit the good work of local philanthropy. Now, more than ever, charities depend upon the generosity of our community. Not surprisingly, charities are not among those who take “by default.” In recognition of this major source of funding, the Chautauqua Region Community Foundation recently launched a campaign to raise awareness of the importance of effective estate planning. The planning process is relatively simple. Most law offices have at least one lawyer who specializes in estate planning. If you do not have a lawyer, the Jamestown Bar Association publishes a list of local attorneys who concentrate their practice in this area of expertise. A good lawyer will listen to your concerns, help you focus your goals and desires and present you with options. You do not need to know your options in advance. You only need to remember to make the call.
If you are interested in planning your will, Planning for the future - A Guide to Wills and Trusts is available at the Chautauqua Region Community Foundation. You can call 661-3390 for a copy or go to Error! Hyperlink reference not valid.and scroll down on the right side of the page to Quick Links and click on Planning for the Future. You can download this document for your convenience.
Stephen J. Wright, Esq. is a partner with Wright, Wright and Hampton. He is also Vice- President of the Chautauqua Region Community Foundation Board of Directors.