WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”.  Their assets go to “family members” under the State’s laws of intestacy.  So, the question any sane person with assets should be asking is “Who would inherit from me if I don’t make a Will”.

If the answer to that question is not what the person would want, THEY SHOULD MAKE A WILL.

Which leads to the question….WHY DON’T THEY???

WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?

WHY…..when people who have “nobody to leave my money to”, why don’t they make bequests to friends?  or charities?

WHY…..do some people put off doing something they know they SHOULD do?

Here are 10 reasons I’ve seen:

  1. Procrastination as a way of life.
  2. Fear of tempting the evil eye.
  3. Not being able to decide who should inherit (or waiting to see who deserves it.)
  4. Not wanting to spend ANY money to take care of this “discretionary” item.
  5. Not wanting to discuss their personal business and/or finances with anyone.
  6. Thinking they’ll do it later, “when they need to”.
  7. Under valuing their assets…this usually happens when there is a house and no liquidity.
  8. Thinking they have all their assets passing directly, so a Will would be moot.  Sometimes this is true, but usually not.
  9. Guilt related to what departed persons (parents or grandparents) would think about what they want to do.
  10. Simply being a selfish, self-centered narcissist who doesn’t care what happens when they are gone.

One could probably write a book, or at least a blog post, about each of these.  I will not do that here.  I will simply note that each of these reasons raise questions that anyone who has ANY of those thought patterns ought to consider,along with my initial question “Who would inherit from me if I don’t make a Will” AND “How would that result sit with me for eternity IF I DIED TOMORROW”?

Eternity is a long time.

 

Sometimes people write down their wishes or give written directions regarding what they want done after they die.  Sometimes they even call it a Will.

Will these be considered a Will?   NO

Sometimes people who would benefit from such writings ask me, as a lawyer, to bring these writings to the Courts attention.  They are essentially saying “Surely the Court will give SOME weight to the deceased person’s written statements.”  Will I make this argument?  NO

In New York, the only writings that will be considered a Will are those that fit the definition of a Will.  Briefly stated, “signed at the end in front of two witnesses”.

Not one witness.

Not “notarized”.

Can LegalZoom and other home made Wills qualify as Wills?  YES, if they meet the definition of a Will.  Most home made wills, where people have researched how to do it, actually turn out to be Wills.

But many attempts to make a Will, or related attempts to give directives after a person dies, FAIL.

When I see this, especially when the attempt looks legit, it’s pretty tragic. Sometimes it’s tragic because of the amount of money involved.  But even worse is the idea that the person wanted something done which would help somebody they cared about, and it isn’t going to happen.

I won’t take a case where we would be trying to make something a Will that isn’t, or try to convince the Court to do “the right thing”.  My advice in those cases is to tell the client to contact the people who benefit from the writing not being a Will and ask THEM to do the right thing.  Oh…and be nice when you ask.  Does this ever work?  Rarely, but when reasonably nice, honorable, ethical people are involved, sometimes they work something out.

More often though, such situations result in a hurt that lasts a lifetime.

In consideration of the above, if someone wants to “get their affairs in order”, they should do it right.  If you know someone in that situation and they need help, by all means HELP THEM.

Do I think the right thing is to encourage them to have a lawyer help them?  YES  But even a LegalZoom will or an effort where you try to get it right is better then a signed “letter”.

If you can’t find a lawyer who is affordable for this, look harder.  Many lawyers are willing to do basic Wills for surprisingly low fees.

I’ll go one further…..If someone fairly local needs a Will and is in the hospital, or confined to home, if they are able to tell me what they want, I WILL MAKE A HOUSE CALL TO GET THIS DONE.  It’s that important.  I know I am not alone in this approach.

Every time I do this, I know I scored a plus one in the cosmic karma of the universe.

So I got THAT going for me…which is nice.

 

In the last post I set forth a few “little things” that affect the probate process.  These things impact the complexity, timing and expense that may be involved.  Here are a few to consider:

1. A Will that is not attorney prepared and/or supervised.  Putting aside possible lack of clarity with a non-attorney will, there are legal presumptions that apply to Wills that will later be presented for probate.  The big one is that when a Will signing is supervised by an attorney, the legal presumption is that the execution (the signing part of it) was properly done. This can be overcome, but the burden is on the potential objectants. It is a heavy burden.

On the flip side, if the Will signing was not attorney supervised, the presumption of due execution does not apply, and the burden is on the Will proponents to show proper execution. This is a heavy (and dangerous) burden. It means the witnesses have to testify that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc).  Nobody can actually remember the details of what happened, and very often big money is riding on some witnesses testifying correctly.

Contrast this with an attorney supervised Will signing.  Now the objectants have a tough burden to overcome, since all the attorney has to remember about the signing ceremony is what their customary ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.

Sometimes when people are in Court with home-made or LegalZoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will. They now have a burden they would not have had if they had used an attorney.

To be clear on this….the above refers to the actual Will execution. Other grounds for objection (lack of capacity, undue influence etc) could still be pursued. That being said, it is really dumb to face “due execution” issues, when they could have been easily avoided.

2. Two witnesses and a witness Affidavit. The law in New York is TWO witnesses. Not one.  Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will. This essentially says they were there, they signed, and everything that was supposed to be done, was done. It saves everyone from having to locate the witnesses years later. It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can’t locate them.

This witness affidavit stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don’t do this step. Very bad. Very inconsiderate to the people trying to probate the Will later.

3. Sometimes a person has a right to inherit, but before their inheritance rights are determined, they die.  We call these persons “post-deceased”.  A post-deceased person does not lose their rights, their estate has whatever rights they would have had.  In Surrogate’s Court, an “estate within an Estate” is quite common. Sometimes, before we can proceed with an Estate we have to establish an Estate for the post-deceased person who has an interest in our Estate.  Sometimes people wait years before setting up an Estate, usually because there was no pressing need to do it.  Then, when they need to do it (usually because they want to sell a house that is still in the name of a deceased person), we have to do multiple Estates within Estates.

The probate and estate world is full of these “little things” that keep life interesting.  Many of these potential problems can be avoided with skillful planning and/or professional preparation and execution of a Will.  In reality, very often proper legal work has not happened, and we play the hand we are dealt.  These problems can all be resolved, but they often take some persistence and time.

Many lawyers deal with Surrogates Court only peripherally.  Questions about Estates and Surrogates Court come up often enough that it is worth knowing the basics. Here are 10 things worth knowing, even if you never set foot in Surrogates Court.

1. The Surrogate Court Clerk’s offices are broken down into departments:

– Probate (Wills and will contest issues)
– Administration (Appointment of fiduciary when there is no Will)
– Accounting (Issues concerning distribution of the Estate, a/k/a “fighting over the money”)
– Guardianship (protection of minors, personally and financially)
– Miscellaneous (all kinds of proceedings: entering an apartment, getting into a safe deposit box, removing fiduciaries, and more)

2. In probate cases there is a presumption that an attorney drawn and supervised will was validly executed. In a contest the burden of proof is on an objectant claiming improper execution. A non-attorney supervised will does not get this presumption, so the burden is on the proponent to prove proper execution. Sometimes this is a BIG hurdle.  Note to any LegalZoom Will customers – Think about the above before you “save money” doing it yourself!

3. To the extent any beneficiary in an Administration (intestacy) proceeding does not waive the requirement of the fiduciary posting a bond, the proposed fiduciary must post a bond in proportion to the beneficiaries interest. VERY often proposed fiduciaries are not able to qualify for a bond.

4. If there is a delay in a probate or administration proceeding, and something important needs to be done (like selling a house or co-op), it often makes sense to obtain “preliminary letters”. It costs some money and requires a bond, but in the end it can save the Estate a lot of money.

5. Contrary to what many clients think, death does not absolve an Estate from creditor’s claims. A fiduciary must address claims they know about or had reason to know about. There are a lot of rules and caselaw on this, but the bottom line is fiduciaries do better when they address claims pro-actively. There are also some claims (funeral, administration expenses, taxes) which take priority over general creditor claims.

6. When a proceeding is filed to open a safe deposit box to search for a Will, the box is opened in the presence of a bank officer. The contents are inventoried, and if a Will is found it is delivered to the Court. If a box is being opened after a fiduciary is appointed, the bank officer should not observing. The fiduciary has a right to open the box on their own.

7. Nothing substantive can happen on a Surrogates Court proceeding until “jurisdiction is complete”. This occurs when all the interested parties have either signed a Waiver or been served. In a probate proceeding, all parties who would have an inheriting interest under intestacy are entitled to notice. This is true even if they are not named in the Will.

8. Whenever an interested party can’t speak for themselves (some examples are minors, disabled people, missing people, or “unknowns”) the Surrogate appoints a “Guardian-ad-Litem” for them. The Court fixes a fee for the Guardian-ad-Litem after they file a report, and they are paid out of the Estate. I’ve heard cynics question this, but in my view, this procedure is absolutely essential. I have served as a Guardian-ad-Litem many times, and take these assignments very seriously.

9. Estates worth under $30,000 (with or without a Will) can be handled under a simplified proceeding under Article 13 of the SCPA (Surrogates’s Court Procedures Act). These are designed to be handled without an attorney. Most clients can handle these on their own. Such an appointment enables a person to collect up to $30,000. However, they would not be able to sign a deed or transfer real estate with this type of appointment.

10. First cousins can inherit under intestacy, but generally they can’t become fiduciaries. In “cousin cases”, the Public Administrator is the fiduciary. These Estates ultimately become “kinship cases”. This is a fascinating specialty within Surrogates Court practice.

Sometimes Surrogates Court seems like it’s own little world. It has many unique rules and procedures. All of these are designed to ensure fairness and prevent premature or improper distributions. Once one gets the hang of it, it starts to make sense. Most of the time, anyway.