Posted On: June 17th 2015
A Last Will and Testament is an important document that a person should have when they pass away. Although we all more or less know this, we do not know when we will pass on, and so many people do indeed die without having a will in place. This is very distressful to the surviving family members and taxing on the state that has to organize the estate of the deceased. We at Schwartz, Fang & Keating, P.C., with locations in New York and New Jersey are highly knowledgeable and experienced in helping you to plan your estate, dealing with estate laws, probate, and estate taxes. Let us help you draft your will, to avoid the issues that can arise from not having one in place at the time of your death.
Without a Last Will and Testament, the deceased is considered to have died “interstate.” This means that the governing laws in the state in which they were legally residing when they passed will dictate what happens to their estate and probate property. When the state has to settle an estate there is no provision for charitable gifts or gifts to friends or particular relatives outside of the immediate family. The state is therefore not able to give any gift, let alone one that is free from estate tax. It is possible to give a tax free gift if given under certain circumstances and dictated as a gift in a person’s will. We employ some of the most knowledgeable and competent Long Island estate lawyers to help you understand the estate process.
Without a will, the court will appoint a personal representative who would be responsible for settling the estate of the deceased. Their duties include: preparing inventory of assets and liabilities, notifying creditors, processing claims, paying debts, and distributing the remaining assets. This representative could be a relative, or if none are willing or able to do this, than an attorney is appointed to the task. When a person passes with a will naming their representative they are called an “executor.” But when the court applies a representative they are referred to as an “administrator.” Contacting an estate administration lawyer can help you understand the regulations and plan for the event of your death.
The states do their best to provide for the families of the deceased, however special considerations are not possible in this process. For instance: if a person dies leaving a spouse and children behind, common practice in most states is that: the surviving spouse receive the first $100,000 (after debts have been paid) and the remaining balance will then be split equally between the children. This does not allow for any differentiation among children who may have different needs: say those single, well-off, struggling, or with disabilities or illnesses who would benefit from being taken care of with more money from the estate, etc.
Along with monetary considerations, if there is no will and there are surviving children who are still minors, the state will appoint guardians for them. Of course the court attempts to find the most appropriate person as guardian, the qualities may be different than those that the parent would seek in a guardian for their children. Additionally, court-appointed guardians are entitled to monetary compensation directly, which will take away from the money that would be left for the surviving children.
With proper planning you can be sure that your wishes will be carried out when you pass. You can ensure that your family, friends, and loved ones are all taken care of exactly how you wish. This is all possible through working with an estate planning attorney and drafting your last will and testament. Contact us today to ensure that you and your loved one’s future is secured.