Many clients say that “they just want a simple will.” When deciding how to word bequests in a will, we lawyers have to bring up some uncomfortable topics with our clients. Aside from the fact that our client needs to contemplate their own death, they also need to think about and decide what to do with their legacy if other contingencies come into play, such as if their child passes away before them?
As an example, let’s say you have Susan and Bill in your office and they have three children, Ann, Beth and Mark. All three of their children have children as well: Ann has two children, Beth has three and Mark has one. Susan and Bill want to be fair and leave all three children an equal share of their estate. Sounds simple enough right?
Unfortunately you must also discuss with Susan and Bill what they would like to happen if one of their children passes away before them. In addition, what if one of their children has another child after the execution of their will?
In New York, we have three different ways to divide a bequest. By representation, per capita and per stirpes. These differences come into play in this exact scenario. Let’s say that unfortunately, Beth passes away before her parents. If you recall she has three children. Do Bill and Susan want Beth’s three children to share equally in Beth’s one third of their estate? In other words, step into Beth’s shoes? Or do they want Beth’s three children to share equally with their children, in other words a five way division?
One must also discuss whether to include children not yet born (or even contemplated) when the will is executed and whether to include children who are adopted. Then we also need to discuss what will happen to a bequest that is left to children or grandchildren who may not have reached the age of majority at the time of the client’s death. We generally recommend what is known as a testamentary trust for just that purpose. So, the subject of who would be the Trustee also comes in.
When clients have a large estate or wish to leave disproportionate bequests or bequests to a charity it gets even more complicated. Even without that, the “simple will” is looking less and less simple isn’t it?
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516