As an estate planning attorney I often hear married couples state that they do not need a Will because their spouse will receive everything anyway. This is a common and incorrect presumption if you have children. If all of our assets are held jointly with rights of survivorship, that assumption may be correct, but in today’s society most couples still have bank accounts in their individual names in addition to joint accounts. If you have children, by the laws of intestacy in the State of New York the first $50,000 plus only half of the balance of any individual assets (bank or brokerage accounts or real property) will go to your spouse and the other half will go to your children. If you have minor children, the money that is supposed to go to your children will be under the Court’s jurisdiction until that child is 18 years old. There are two major problems with that. First, if the surviving spouse wants to access any of those funds for the child, they must ask the Court for permission to withdraw funds by filing a petition. In addition, each year the surviving spouse must file an account of the assets with the Court. This can be a daunting process and with the final decision being made by a judge who does not fully understand your family situation. Second, if you have substantial wealth it may not be wise for a child of 18 years old to receive a large sum of money.
Rather, the better option is to execute a Last Will and Testament that directs that your assets are distributed to the surviving spouse, and only upon the surviving spouse’s death do your assets go to your children, but to be held in trust until that child is at least 25 years old (or older) and nominating a family member as the trustee of that child’s trust. Therefore upon your death, after your Will is admitted to probate with the Court, the Court will no longer have jurisdiction over your estate and family matters.
Of course every family situation is different and this simplifies the suggested plan. There are many variations that can alter this fact pattern. I always advise prospective clients that if they do not have a Will already, they must have a Will when they have children.
Melanie Claassen is an associate at Arden Besunder P.C., assisting clients in the areas of estate planning and estate administration