Wills Attorneys in Tonawanda, New York

The website Caring.com conducts an annual Wills and Estate Planning Study, which surveys Americans to gauge how many have wills or other estate planning instruments in place. The 2021 survey found that the percentage of Americans with wills continues to decline. The figure now stands at 32.9 percent, down from 42 percent as recently as 2017.

The good news from the study is that the pandemic has actually awakened younger Americans, those aged 18 to 34, to the need for estate planning. Those in this age group who say they have an estate planning document in place rose 12 percentage points, from 16.4 percent in 2020 to 26.8 percent in 2021.

A will, or last will and testament, is the basic building block of proper estate planning. Among other things, a will allows you to designate how your property and assets should be distributed – and to whom – when you pass away. It is a legally recognized instrument to put in place a plan to care for your loved ones when you’re gone. Without a will, the state of New York will divide your assets according to the family hierarchy charts used in probate.

The Law Office of Corey J. Rossi, PLLC stands ready to help you plan for your future, and for the future and well-being of your loved ones. In an ever-changing legal landscape, our attorneys will help you assess your unique situation and craft a will that addresses all your concerns and those of your loved ones as well. We proudly serve clients in and around Tonawanda, Amherst, and Wheatfield, New York, as well as the counties of Erie and Niagara.

Overview of Wills and What They Do

It has been said you’re never too young nor too old to begin estate planning, but you can be too late. If the COVID pandemic taught us anything, it’s that you never know what’s going to happen. In other words, the best time to start planning for the future is now. No one’s tomorrow is necessarily guaranteed.

Essentially, there are three types of wills (leaving aside the discussion of a trust for now): a simple will, a joint will, and a living will.

The simple will is composed by one person, known as the testator, who expresses their wishes for how – and to whom -- their property and assets should be distributed upon death. A joint will, or mirror will, is executed by both spouses together, naming the surviving spouse as the inheritor of everything when one spouse dies. The problem with a joint will, however, is that once one spouse dies, the will cannot be changed. If the surviving spouse remarries and wants to redesignate assets to that person, it cannot be done.

A living will can exist alongside either a simple will or a joint will. A living will, also known as an advance health care directive, is a document in which a person specifies their wishes for end-of-life treatment. It is often popularly referred to as a “do not resuscitate” request, though it certainly can and should contain other provisions, even to be put on life-support if you desire.

In addition to designating who gets what from among your assets (and it could be a charity or entity other than a person), a will also names a personal representative, or executor in legal terms, who oversees the process of distributing your assets during probate proceedings. A will can also be used to name a guardian for minor children, and also name a person to manage any property left to your children while they’re still in their minority.

What If You Die Without a Will?

If you pass on without a will (or a trust) in place, which is called dying intestate, the state of New York will not only distribute your assets according to its established standards, but it will also name a guardian for your minor children. Your assets will go through probate court proceedings, just as they would with a will, but the court will choose its own executor and decide who gets what.

The family members who are entitled to a share of the decedent's estate when there is no will are called "distributees.” If there is a surviving spouse but no children, the spouse gets everything. If there are both spouse and children, the spouse gets $50,000 plus half of everything else. The children get the rest. If there are only children, they get everything. Parents will inherit everything if there is neither spouse nor children, siblings if there are no parents, spouse, or children.

The closest distributee – the surviving spouse, for instance – will likely become the administrator, or executor, of the estate.

Avoiding Probate by Establishing a Trust

A living trust is similar to a simple will with one major exception. A trust does not need to be administered through probate court proceedings. In a trust, the grantor or trustor, names a trustee to administer their estate upon the grantor’s death (or during incapacity). While alive and well, the grantor of the trust manages all property and assets on their own. The trustee only takes over in the event of incapacitation or death. The trust document, like a will, names beneficiaries and designates who gets what.

Like a will, a living trust can be revoked or rewritten as one’s life changes. Also like a will, you must be at least 18 years of age or older and of sound mind to create or alter a trust. Note, however, that a trust does not allow you to name a guardian for your minor children, so you will need a will along with the trust to take care of your children.