Wills and lawyers -- who needs them?!

November 5, 2014

Dear Friends,

As you know, one of the services that our Elderly Project offers is to connect eligible seniors with lawyers at some of Manhattan’s most prestigious law firms for the free preparation of wills and advance directives (what we call “life-planning documents”).  We meet these seniors at our clinics and also through you – our valued community partners.

At our clinics, seniors often ask us one or both of the following questions:

a) Do I really need a will?  and

b) If so, do I really need a lawyer in order to prepare one?

Today I’d like to briefly explain how we answer these questions.

Do I need a will?

There is certainly no law that says that someone must have a will.  But there are consequences that may result from not having one.

A will (short for a “last will and testament”) is a document in which a person specifies who should receive her property after her death – specifically, property that she owns in her name alone, with no previously-designated beneficiary.  (A will has no control over property such as a bank account with an “in trust for” designation, or an IRA with a named beneficiary, or life insurance proceeds – so long as the beneficiary is alive!)  If someone dies without a will, then any property she owns in her name alone – money in an account, a house, a pet, furniture, jewelry, etc. – will be inherited according to what is call the law of “intestacy”.  This law says that property is to be distributed, essentially, to the closest living relatives of the person who has died – if those persons can be identified and located.

What’s wrong with that, you may ask? Nothing – unless you don’t want your closest living relatives to inherit your property! And my experience working with seniors in New York City has shown that a good number of them do not want to leave their property to their closest living relatives.  A senior may want to leave his property to a longtime companion to whom he was not married, or to a neighbor who cared for him during an illness, or to a respected charity.  None of these are options under the law if one dies without a will. 

Can’t I write a will myself?

Sure you can – just as you can try to repair your own car.  But whereas you’ll probably know immediately if you didn’t fix your car properly, problems with a will won’t surface until after death, when it’s too late to repair them.  Therefore it’s a good idea to obtain the assistance of a lawyer when preparing a will.

A lawyer can be helpful when preparing a will in an obvious way: the lawyer will make sure that the will is written properly.  A lawyer will make sure that her client’s wishes are expressed unambiguously in the will, and the lawyer will likely include special language designed, for example, to protect beneficiaries who are receiving means-tested benefits, like SSI.  A lawyer can also include additional items like an affidavit for the will’s witnesses (in New York, a will must be witnessed by two people); though this affidavit is important, I’ve seen many do-it-yourself wills that do not include it.

And speaking of witnesses, a lawyer will also make sure that a will is “executed” properly.  A will execution is the ceremony where the will’s owner – the “testator” – signs the will in front of witnesses.  If the will is not executed properly, a judge may deem it to be invalid.

Isn’t the law pretty simple when it comes to wills?

Okay, so this is not a question that seniors ask, but it’s an assumption that I find they often hold.  Not long ago I was contacted by a senior who was convinced that he was entitled to inherit a share of his late mother’s condominium in Florida.  Sure enough, his mother’s will stated that her share of the condo was to go to her son at her death.  But what the son – and apparently his mother – did not know was that, under Florida law, the mother’s husband became the sole owner of the condo upon her death, and the will had no power to change this.  Had the mother and her husband gone to a lawyer – as opposed to a dubious notary who claimed to provide “assistance” with wills – the outcome might have been different.

Send us your wills cases!

As you can see, there’s a potential benefit to having a will, and to having one prepared by a lawyer – and eligible seniors can have this work done free of charge through the VOLS Elderly Project! So please continue to talk up this service with your clients, and to refer them to us via our clinics or via a direct referral by fax or e-mail.  And, as always, don’t hesitate to call or e-mail me or Vanessa Diaz with any questions or concerns.

All the best,