Is There Such a Thing as a Simple Will?

//Is There Such a Thing as a Simple Will?

Is There Such a Thing as a Simple Will?

Is There Such a Thing as a Simple Will? by Deborah E. Kaminetzky

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

 

Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

By | 2018-01-05T12:58:18+00:00 August 24th, 2017|Estate Planning|0 Comments

About the Author:

Deborah E. Kaminetzky is the founding member of Kaminetzky Law & Mediation, P.C. located in Cedarhurst and Garden City, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the American Bar Association (General Practice, Solo and Small firm Division and Law Practice Management Sections), National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Vice Chair of the General, Solo and Practice Management Committee, and is active in the Community Relations and Education Committee) and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.

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