A Will is usually the first thing that comes to mind when thinking about estate planning. In fact, many people who contact me tell me they “don’t need anything complicated - just a Will.” Wills are important, but relying on only a Will is risky and actually forces your family into court, may result in your assets not reaching your intendeds, and does nothing for incapacity protection.
What Exactly Is a Will and How Does it Work?
A Will is a legal document stating who gets what of whatever you own, and it allows you to appoint who will be in charge of those things. There are 3 parties to a Will, the Testator, that’s the person who makes the Will – You. Then there’s the Executor, that’s the person you choose and trust to manage what you own. Last are the beneficiaries which could be your loved ones, or charitable organizations. This legal document must be submitted to the Court to ensure it complies with state statutory regulations. If the Will doesn’t meet the requirements, the court rejects it, and it’s like having nothing at all.
A Will Requires Probate Court
One of the biggest estate planning myths I hear from clients is the belief that by having a Will, their loved ones won’t need to go to court after they die. Sadly, the opposite is true. If you use only a Will as your main method of estate planning, you are actually guaranteeing that your loved ones will go to court after your passing because a Will is required by law to go through the court system called probate before any of your assets can be distributed.
The 3 parties of a Will all must be approved by the probate court. Until that full approval process happens there are NO distributions to anyone. This approval process does not happen quickly, by any stretch of the imagination. It typically takes 1-2 years, even without anyone contesting, and it is expensive – typically it can be 5% of the total value of what you owned, and it’s public – there is nothing private about this court process. Once the Will is submitted to the court for approval, everyone can see what you owned, who your beneficiaries are and what they are receiving. All of this is extremely difficult for families.
Don’t Just Get a Will, Get an Estate Plan
A Will should be used as a piece of your overall estate plan, not as the entire plan itself. By using better tools like a Trust as your main estate planning tool your family avoids probate court entirely and ensures the people you trust can step in and manage your assets immediately if you become incapacitated while you are living, and are in charge after you’re gone. Also, any assets you put into your Trust are entirely private, the court and the public will never know what you own or who will inherit those things.
Your Will should only need to serve as a backup and safety net to make sure that any assets that are accidentally left out of your Trust at your death are added back into your Trust. And, even more important than both a Will and a Trust, is an inventory of your assets so your family knows what you have, where it is, and how to find those things when you lose capacity or pass away.
Monet Binder, Esq., has her practice in Queens, dedicated to protecting families, their legacies, and values. All halachic documents are approved by the Bais Havaad Halacha Center in Lakewood, under the direction of Rabbi Dovid Grossman and the guidance of Harav Shmuel Kaminetsky, shlita, as well as other leading halachic authorities. To learn more about how a power of attorney can help you, you can send her an email at This email address is being protected from spambots. You need JavaScript enabled to view it. or call 718-514-7575.
