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Is a Will Really Necessary?

by Jeffrey Asher, Estate Planning Expert
May 31, 2013

Question: Can my elderly father avoid the hassle of writing a will if he adds my name to his assets?

Answer: The short answer is "yes". A Last Will and Testament is a legal instrument which, among other things, provides instruction to the world on how your assets are to be distributed upon your death. It provides these instructions over assets that don't already have some form of ownership registration attached. For example, if you own a bank account in your name, along with someone else as joint owner, then the bank account will pass to the joint owner upon your death by virtue of the fact that the ownership instruction is already on the account (e.g. the joint ownership). The same is true for an account with a beneficiary designation. For example, a life insurance policy that you own, with a child's name as beneficiary, will be paid to the beneficiary upon your death. The same is true for annuities, CDs, "pay on death" accounts, "in trust for" accounts - any type of account that allows for the registration of a joint owner/beneficiary upon the death of the primary owner. We call such property non-probatable property - because such ownership does not require the probate of a Will to tell the world where the property goes upon the death of the owner.

So, by adding your name to your father's assets, assuming such registration is of a type, as described above, that allows the distribution of the asset to you automatically upon in his death (or, what we call, "by operation of law"), your father could, hypothetically, avoid probate. In other words, the probate of your father's Will would not be needed to instruct the world as to whom the assets should be distributed upon his death, and, possibly by extension, your father would not, therefore, have to create a Will.

However, I have two words of caution. The first is that writing a Will should never be a "hassle". If done properly, with a qualified attorney, it should be a relatively simple and painless process. And one that may, in fact, no matter what, be necessary, which is the subject of my second word of caution. There may be reasons that your father needs a Will such that the administration of your father's estate would not be made easy by avoiding writing a Will. Reasons such as explaining why he has disinherited children or other family members, the payment of his bills and last expenses, such as funeral costs and estate taxes, the appointment of executors, trustees, or guardians where necessary or because your father has other assets that require the probate of a Will, such as artwork, collections, certain types of financial accounts where there are no beneficiary designations, certain parcels of real property or cooperative apartments. For those reasons, your father may, in fact, still need a Will, even if he has already made his assets non-probatable. 

Jeffrey Asher is a prominent Trusts & Estates and Elder Law attorney in Westchester County and New York City. Mr. Asher concentrates primarily in the areas of Estate Planning, Probate and Estate Administration, Elder Law, Medicaid Planning, and Special Needs Planning. Mr. Asher provides comprehensive legal services, tailored to meet your specific needs.

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