2022-07-02

Why You Need a Will: Common Scenarios That May Surprise You

Here are some common scenarios where people die without Wills — the outcomes may surprise you:

Scenario 1: A husband dies, survived by his wife and three young children. The wife feels assured that she inherits all of her husband’s assets. She is wrong. The children inherit a significant fraction of the assets, and because they are minors, they will need a guardian and Court involvement is likely.

How a Will could help: The husband could specify in his Will that the assets pass to his wife (not his kids); if he does want to leave assets to his kids, he could set up a trust for minors and specify a trustee.

Scenario 2: A husband and wife both die in a car accident, leaving three young children. Who gets custody of the kids? The kids could temporarily end up in foster care until a guardian is appointed in a Court process that could take many weeks.

How a Will could help: The couple could have had a paragraph in their Wills specifying who would care for their kids in case they both died. They could even specify one person to take care of the children’s “person” (where they live, how they are raised) and another to take care of their “property” (the assets left to them)… since people vary in what they are good at.

Scenario 3: A widow has a child with special needs. When she dies, her assets pass to her child, thereby disqualifying the child for government benefits. The assets have to be used up before the child re-qualifies for benefits. The assets that the widow worked so hard to preserve for her child are lost — they will pay for care that would otherwise have been paid by government benefits.

How a Will could help: The widow could create a Supplemental Needs Trust within her Will. Putting the assets into this trust would protect them for the child, who would thereby still qualify for government benefits. The assets earmarked for the child could not only be available to make the child’s life better, but in addition they could pass to friends or other relatives upon the child’s death.

Scenario 4: A couple marries — it is the second marriage for each of them, and each has children from their prior marriage. The couple holds all their assets “Jointly With Right Of Survivorship”, thinking that this is the best way to hold their assets. After all, they reason, that way upon the death of either one of them their assets will automatically pass to the survivor. When the husband dies, however, all his assets pass to the wife; then, upon her death, all the assets pass to her children (none to his!). This is an unfortunate outcome that we see all too often with people who have not come to us (or someone like us) to help them with their planning.

How a Will could help: A Will, particularly one with a trust, could have protected a significant portion of the husband’s assets for his own children. The wife similarly could have preserved her assets for her own children. You can have unintended outcomes without proper planning even if no one is being mean or stingy or deceptive (though sometimes meanness, stinginess, and deception may be involved). In situations involving second marriages and children from prior marriages, planning focusing on the form of ownership, the creation of trusts, and other planning tools, is essential.

Scenario 5: You have no close relatives and your assets “escheat” to the State.

How a Will could help: You can designate friends and charities to inherit your assets.

Scenario 6: The order in which you and your family die causes your assets to pass to the relative… or in-law… you hate the most.

How a Will could help: You can control who gets your assets after your death.

These typical scenarios highlight issues we see every day in the people who come to see us after the fact — often when it is too late to do anything to remedy the situation. These scenarios also highlight how a Will can often offer a relatively simple solution to avoid these problems. A Will can be a highly useful tool, along with other planning, to ensure that your wishes are given effect, the people you trust have the authority to carry them out, and your loved ones are taken care of, thereby giving you peace of mind.

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Disclaimer: This article is based on NY Law. Estate planning and Will drafting are complex processes that should only be undertaken with the assistance of an attorney knowledgeable in these fields. These examples have been presented in a simplified manner for clarity; many things, including subtle variations in the facts, could affect the outcome, and other tools — prenuptial or business agreements, trusts, etc. — may be advisable in conjunction with or even instead of a Will. The foregoing examples should not be used to infer possible solutions to your situation, nor should it be viewed as legal, financial or tax advice. You should consult with an attorney (and possibly other professionals such as an accountant, insurance professional, financial adviser, tax specialist) to discuss your particular situation.

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