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Lamson & Cutner drafts and supervises the execution of its clients’ Last Will and Testament, and provides sophisticated estate planning advice as well.
However, Lamson & Cutner does not automatically recommend the preparation of a Will, as in many cases it is a needless expense. Each client’s situation is individually evaluated before any decision is made. Then, if the client wishes to proceed, the Will is custom-tailored to fit the client’s particular circumstances and desires.
Do You Need a Will?
Here are a few examples of situations where a Will might or might not be needed.
A client who is planning for Medicaid benefits typically transfers his assets to family members or to a trust, in order to come within the Medicaid resource limit (currently, $14,250). The client’s remaining bank accounts are titled "in trust for" a beneficiary, so that these accounts pass outside the probate estate. In these circumstances, a Will is likely to be superfluous, as there will be virtually no assets in the estate.
If the client discussed above has a wife, and she has a Will leaving everything to him, it may be prudent to revise her Will. If the "well spouse" predeceases the spouse who is receiving Medicaid benefits, the bequest in her Will is likely to cause him to lose his benefits. Here, the wife’s Will should be revised to name beneficiaries other than the husband (although Medicaid may require the husband to exercise his legally protected "right of election" to a one-third share of the estate, and it would then be necessary to do further Medicaid planning for him).
Another situation where a Will might be an unnecessary expense is when the client decides to create a revocable trust, and fund it with virtually all of their assets. The client remains in control of the assets during their lifetime, but avoids probate, as the assets pass directly to the beneficiaries of the trust.
When a Will May Be Needed...
Where a client intends to leave their estate in equal shares to the "natural objects of their affection" (e.g., a spouse or children), this intention is effectively carried out by the New York laws of succession, in the absence of a Will. A family member can do an administration proceeding or a small estate proceeding to obtain access to the client’s assets after death. However, if the client has a disabled child or grandchild, it may be prudent to do a Will to either disinherit the disabled person or create a special trust for the benefit of the disabled person. The disabled family member is then protected from the loss of any government benefits.
When a parent intends to benefit his or her children in unequal shares, it is essential to have a Will. It is equally important to mention a child who is being disinherited, so that he cannot claim that he was inadvertently omitted. In such circumstances, the Will might state, for example, "I have decided not to leave a bequest to my son, John, because of his spendthrift and dissolute ways."
Many other examples could be given, but the point is simply that Lamson & Cutner wants its legal services to be useful and cost-effective, and we don’t assume automatically that a Will is required. When one is needed, it will receive the same thoughtful attention, expertise, and care given to all of our work.
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