Quite simply, you need a Will to distribute your assets according to your wishes.

Additionally, there are several other reasons as well. First, if you have a minor child, you need a Will in order to appoint a Guardian for your child until he/she reaches age 18. Second, you should set up a trust under your Will to hold the assets for your child until the child is older and capable of handling his/her finances. Third, if you have a child with special needs, or other issues, such as drug or alcohol problems, creditor or marital problems, then you will need certain trust provisions in your Will to handle those issues. Lastly, if you have a very large estate, greater than $5 million, then you may need certain trust provisions to help minimize estate taxes after your death.

You do not get to choose how your assets will pass to your heirs. Your estate will pass according to New York State Intestacy law.

NY State Intestacy law provides that if you die leaving a spouse, your spouse inherits all. If you die leaving a spouse and children, the spouse inherits the first $50,000, with one-half of the remainder passing to the spouse and the other one-half passing equally to the children. If you die without a spouse or children, then all passes to parents; or if no parents, then all to your brothers and sisters, etc. Lastly, if the decedent dies without heirs, the assets pass to New York State.

Probate is the process of submitting the decedent’s Will to Surrogate’s Court for approval and for the formal appointment of the Executor. An Executor is needed in order to handle the administration of the estate.

New York State has an efficient probate system and typically, an Executor is appointed by the Court within 7 days. Probate fees are not as costly as one believes, and the fees range from approximately $100.00 to $1,250.00, depending on the size of the estate. There are only a few circumstances where avoiding probate is recommended; however, for the majority of New York residents, it is not necessary.

A Living Trust is a revocable trust in which an individual transfers all his/her assets into the name of trust. This means that the house, investment accounts, vacation property, etc. are owned by the trust although the individual controls the trust since he/she is the grantor, the trustee and the beneficiary during lifetime. After death, the trust becomes irrevocable and the trust assets pass as the Grantor has stated in the Trust Agreement.