In my 26 years of practice I have often been asked the question, "Should I have a Will?" My response, which has remained virtually constant through the years, is yes you should have a Last Will and Testament and more.
The Last Will and Testament is the document that, among other things, details in accordance with your wishes the disposition of all your money, property and other assets upon your demise. If you die without a Will, then disposition is based on the intestacy laws of your state, which may well contradict your wishes. In addition, the Will sets forth who you wish to be the Guardian of any of your minor and/or disabled children and establishes who you want to be the Trustee of funds set aside for said children . In the absence of a Will, intestacy laws would instead have the court make those very personal decisions and appointments for you. The court would also decide who to appoint to carry out the administration of your estate, subject to statutory and administrative fees.
In addition to a Will, one should also have a Power of Attorney so that you may designate a trusted Agent to handle your finances and affairs should you become ill or incapacitated and unable to do so yourself. Furthermore, one should have a Health Care Proxy and a Living Will. The Health Care Proxy designates that person you trust the most, to make medical decisions on your behalf should you be unable to do so. The Living Will spells out what type of treatment you wish to receive and what type of treatment you do not wish to receive, should you be in a vegetative state with no meaningful chance of recovery.
All of these documents are necessary in order to properly plan ahead. Many people procrastinate and put these documents off because they don't like to think about these unpleasant situations or because they say they can't afford it. Unfortunately, these are some of the same people that wait until they are in a crisis situation before hiring a lawyer to complete these documents and often find it's too late because they no longer have the necessary legal capacity.
The truth is that these are legal documents you can't afford to do without. In New York State due to a progressive increase in the estate tax exemption level, complicated and expensive estate tax planning may be unnecessary for those who do not need medicaid planning. Instead many find that a simple Will package will suffice, potentially saving them thousands of dollars in legal fees formerly required for extensive estate tax planning. However, if in the future estate tax exemption levels were to be lowered again by the powers in office, a simple cost effective Will package may no longer be enough to adequately safeguard your estate.
If you are among those who need to update or do not have a Last Will and Testament, Power of Attorney, Living Will and Health Care Proxy, call an attorney to answer any questions you may have. Prudence dictates getting your affairs in order before the calendar turns the page to the New Year and a crisis situation arises.
Long Island Lawyer
Paul A. Lauto, Esq.