If you're like most people, you've probably avoided thinking about what will happen to your estate after you're gone. Who will control your assets and take care of your loved ones? And will family relationships become strained if you have left no legal instructions for guidance?
Legal experts say that assuming your affairs will take care of themselves amounts to gambling with your legacy. "Everyone should have a will because it's backup" for the unexpected, said former Nassau Surrogate C. Raymond Radigan. "Who knows? Anything can happen."
You're far from alone if you haven't made those plans. A Harris Poll survey last year for Rocket Lawyer, an online legal service, indicated that 41 percent of baby boomers did not have a will; 64 percent of Americans 18 or older were without one.
But experts say that you and your heirs could regret not having the document when the time comes. "If you die without a will, you run the risk that your property will end up in the hands of people you don't even know -- or worse that you do know but don't like -- merely because they are related to you," said Suffolk Surrogate John M. Czygier Jr.
Czygier, who presides in Riverhead, and Nassau Surrogate Edward McCarty III, who sits in Mineola, pore over wills of the deceased to make sure the documents are valid in a legal procedure known as probate.
Czygier warns that last-minute "wills" scrawled quickly, without legal expertise, may not hold up in court. That was the result in a Suffolk Surrogate's Court case last year, when Czygier ruled that a document purporting to be the "last will and testament" of a Stony Brook man was not legally valid.
Frank Martello, 78, was admitted to Stony Brook University Hospital on Oct. 10, 2012. According to Czygier's decision, Martello's "will" left his entire estate -- his house, car and bank accounts -- to his "beloved companion and partner" of 22 years. The will was written on a sheet of paper while Martello waited for surgery and it was witnessed by two nurses.
Martello died four days later and his last-minute will was challenged by two sons, Peter and Christopher, who live on Long Island. Czygier ruled there was no evidence that Martello fully understood what he was signing and the document "was not duly executed."
Richard D. Haley, the Islandia trial counsel for Martello's sons said, "Had he [Martello] sought out the services of an attorney to prepare the will, I have little doubt that it would have gone through probate and the assets would have passed" to his companion.
At the very least, a properly prepared will names an executor to administer the estate, settle debts and other expenses and make sure assets go to the named beneficiaries. It should be signed by two witnesses with no interest in the estate and who can affirm that the person fully understands what he or she is signing.
By law, a spouse -- even if legally separated -- is entitled to a percentage of the estate unless the spouse waives those rights. A will can cover the remainder of the estate, if any, and include instructions regarding guardianships for minor children. Directions for establishing trusts for extended care of loved ones can also be specified. Children can be disinherited, but the reasons have to be explicit.
The more specific the instructions, the better, experts say, because it means that you make the decisions about your assets instead of a judge. "It's important to do these things in an orderly way so if someone wants to criticize later, you don't give them anything they can pick apart," Czygier said.
While a will provides basic instructions for your estate after you die, many in the legal community say it's not enough. Experts say there are other legal documents you should have drawn up to carry out your wishes if you become mentally or physically incapacitated. These include directives naming someone who has power of attorney to make financial decisions on your behalf and a health care proxy to make medical decisions if you're unable to do so. Another option is to make a Living Will in case you become permanently unconscious or terminally ill to cover end-of-life care.
Irrevocable trusts, revocable trusts and customized plans that minimize federal and state estate taxes are also available and require extensive preparation.
"People should not have a will," McCarty said. "They should have an estate plan."
But for those who haven't yet explored drawing up any legal documents for their estates after death and want to start with the basics, experts say a will is a good place to begin. If you die without a will in New York, the state Law of Intestacy takes over, dictating which relatives will get a percentage of your estate. Your spouse and children get first consideration.
The absence of a will can mean the courts will make critical decisions about your estate, possibly leading to expensive and emotional litigation for your heirs and delays in distribution of your assets.
"You spend a lifetime building up a lifetime treasure and in the final analysis you have a right to dispose of it as you wish, and it's critical that those wishes be filed" and legally executed, said Haley, the Martello brothers' lawyer.
According to McCarty, in 2014, there were 3,965 estates with wills that went through probate in Nassau; 83 had objections. There were 1,180 estates with no will administered by the court; 48 had objections.
Last year, of the 2,762 wills filed for probate in Suffolk, 50 were contested, Czygier said. Of the 2,200 estates with no will, about a dozen were challenged, he said.
Fees for a will done by an experienced trust and estates attorney can range from $2,500 to $5,000, while attorneys who are not specialists may charge less. Many lawyers charge only an hourly rate; others charge a fixed fee.
There are also fee-based online legal services, such as RocketLawyer, that have legal forms to download as well as online legal advice. But experts say that while generic form wills may be less expensive, meeting with a trusts and estates lawyer with all of your financial and personal information would result in a document that's specifically tailored to your needs.
"You should have an initial consult and get a fee quote," said Garden City trusts and estate lawyer Andrea Hyde. "This is one of the most important things you can do for yourself and your family, and you should do everything possible to make sure you get it right."
Estates with less than $30,000 in assets, with or without a will, don't have to go through the probate process. But anything over that amount must be approved by the court before the will's executor can distribute the assets.
Anyone who challenges a will must prove the document isn't valid, either because the person who wrote it lacked the necessary mental or physical capacity to do so; was under undue influence by someone; or there was fraud involved. Challenges can also contest the will's legality.
The motive for challenges is usually the same. "Ninety percent of the litigation is caused by people who are dissatisfied with the equitable distribution of their inheritance," McCarty said. To avoid such challenges, make sure your will is properly prepared and your wishes are stated clearly and exactly. "Never be vague," he said.
Dying isn't a favorite subject, but having a will that leaves nothing to chance can bring you peace of mind. "It's actually a very positive thing, although it can be overwhelming to some," Hyde said. "It's an opportunity to reflect on how the family would survive if something happened and how to put it in place."
What you need
Before making a will, you'll need to gather plenty of information. If you're using an attorney, which experts encourage, you may be given a questionnaire in advance of your meeting. Here is some of the information you should have.
COMPILATION OF ASSETS Records of all bank accounts, property, insurance policies, pensions, retirement investments such as IRAs and 401(k)s, records of stocks, bonds and other investments
INFORMATION about all debts
TITLES to cars, boats and all other vehicles
LIST OF BENEFICIARIES who will be your heirs, including those with special needs or minor children who may need trusts or guardianships
FAMILY TREE and location of family members