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Why You Need a Will

A will is not only for people who want to set up trusts or protect their estate from taxes. Those may indeed be important benefits from some people, however the primary reason for making a will is to leave your property to those you care about in the manner and proportions you choose.

If you die without a will

If you die without a will, the assets in your name in most instances will be distributed by a court appointed administrator among your family members pursuant to a statutorily fixed priority. These rules, codified in Article 4 of the Estates and Trust Law, reflect what the New York State Legislature decided would likely be preferable in most situations. For example, if you were to pass away without a will in place, your assets would be dissolved in the following manner based upon your family structure:

  • A spouse and descendants: your spouse takes the first $50,000 and one-half the balance of the property, and your descendants share the rest.
  • A spouse but no descendants: spouse takes all.
  • Descendants, no spouse: descendants take all.
  • A parent or parents, no spouse, no descendants: your parent or parents take all.
  • Descendants of either parent but none of the closer relatives: the descendants of your parents take all.
  • One or more grandparents or their descendants, but none of the closer relatives: half goes to the maternal side and half to the paternal (but not including second cousins if you have first cousins on either side).
  • Where “descendants” include a mix of generations, living children take a full equal share, and children of a predeceased child then divide equally the share of their deceased parent.

This allocation may very well differ from the distribution you desire. A properly drafted will can enable you to direct the distribution of your assets in accordance with your wishes.

If you die without a will and leave young children

Here’s something else to consider: If any of your children are under 18 years of age at your death, a court appointed guardian will be required to manage your minor child’s share of your assets. Although the court probably would appoint your spouse a guardian of the property for your minor children, this is not guaranteed.

Also, the guardian may have to post a bond. Payment of the bond premiums will cost money. Moreover, if any portion of your assets is needed to pay for your child’s education, clothing or living costs, prior approval of the court is necessary. The court also requires guardians to file annual accountings of income and expenses.

In addition, the range of investments available for the funds held by the guardian may be limited. Thus if the guardianship lasts for any length of time, the child’s funds may not grow at an acceptable pace. These problems can be avoided with a properly drafted will.

If you and your spouse die at or about the same time, it is important that you have made provisions not only for a guardian of the property of any child under age 18, but also that you name a guardian of the person for each minor child. A guardian of the person is given custody of the child during minority. While the designation in your will is subject to the review and confirmation by the court, the court will usually give deference to your wishes. Thus, with a properly drafted will you can provide guidance to the court on who you desire to be the guardian of your minor children.

A will determines who will oversee the administration and distribution of your estate assets

A will allows you to name a legal representative, or executor, of your estate to administer and distribute your property upon your death. An Executor can be a relative, a friend, your lawyer or a bank or trust company that specializes in the handling of estates.

The choice of an Executor is yours only if you make a will. You realize the value of having qualified people help with your affairs during life. Such people are just as valuable after you die.

What is the best way to make a will?

While there are many options available for drafting your own will, from downloadable forms to do it yourself instruction manuals, a will drafted in this fashion may not be the best will for your personal situation. You might miss an essential element of a comprehensive estate plan or any number of opportunities to maximize the efficient distribution of your assets to your chosen beneficiaries.

Moreover, you may not end up with a valid will, as wills have formalities of execution that are fixed by state law. An invalid will can result in the court administering your estate as if a will had not been written, or distributing by intestacy. Securing the professional guidance of an attorney can resolve these issues.

Making the best plan and the best will takes knowledge and expert advice

Making the best plan and the best will takes knowledge and expert advice. For example, did you know that property held jointly with another may not be distributed by will? Or that life insurance, individual retirement accounts, pension plans and other assets may or may not be distributed by will depending on who is named as a beneficiary?

Or that a spouse has a right to a car or certain other items, as well as to a large share of your property no matter what your will may direct?

The best estate plan recognizes that your will is only part of your total plan for the distribution of your property. Contact Donnellan & Knussman, PLLC to make an appointment to discuss preparing your will as well as your overall estate planning wishes.

If you plan properly and have your plan reviewed periodically, you may lower or eliminate the tax burden on your estate and leave more to your beneficiaries

You should have an understanding of how estate and income taxes affect you and your assets prior to drafting your will. The federal and New York tax laws change often as a result of various tax reform acts. You may not be up to date with these complex and frequently changing laws. You may also be unaware that you can choose which of your beneficiaries pay the estate taxes. If you do not choose how your estate taxes will be allocated, the tax burden will be allocated among your beneficiaries according to statutory rules that may or may not be in accordance with your wishes. An attorney can help you draft a will and create an estate plan that addresses these issues. If you plan properly and have your plan periodically reviewed by an attorney, you may be able to reduce or eliminate the tax burden on your estate and leave more to your beneficiaries.

Contact our family law and divorce attorneys for your confidential consultation today.

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WHAT OUR CLIENTS ARE SAYING

  • Nearly one year ago, I hired Ms. Knussman to clarify some of the ambiguous language in my child custody stipulation that had been causing ongoing litigation ($$ and stress) since my divorce in 2010. Ms. Knussman was recommended to me from others who had very positive experiences with her. I have worked with Ms. Knussman intermittently over the past year. She is a class act. She has consistently displayed professionalism and integrity with all of my matters. It was obvious to me in reading her correspondences and observing her face-to-face interactions with her attorney peers, family court justices, and other family court staff that she is well respected. She has proven herself an expert in matters related to divorce and child custody. Hiring Ms. Knussman and her firm was the best decision I could have made - I only wish I hired her for my divorce three years ago. I highly recommend Ms. Knussman - she is an award-winning attorney who is building a FANTASTIC firm.

    -Frank

  • Excellent Legal Team. Terry and her staff went the extra mile to help me update our Last Will & Testament, Living Wills, and Power of Attorney. The documents were brought to today's standards and were done quickly, precisely and very professionally. I recommend her to all!

    -Jack

  • Sarah handled my custody case. It was not the easiest of matters as my husband was out of the country. She handled all of the necessary filings, kept me apprised during the process and more importantly for me, was honesty with what to expect at court and during the whole process. I appreciated her explaining each step, the potential timeline and outcome. She successfully obtained sole legal custody for me and I will always be grateful for her assistance and caring.

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  • Amy is an excellent lawyer. She was straightforward and clear on what she felt were the merits and issues for my case. She kept me informed on all aspects and both her and her staff were extremely responsive.

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  • As anyone who's gone through it knows, divorce sucks. I didn’t know what to expect when Sarah first walked through the door. I was raw, uneasy and on edge about the whole procedure. Immediately Sarah made me feel safe, supported, and let me know we were going to get through this together. She verbally gave me an outline of what to expect and how things we're going to move forward from there. Sarah was always readily available to answer questions, offer counsel, and even a bit of emotional support when I felt my world was crumbling. Sarah was always fast with the paperwork and doing all she could to speed up efficiently, a dreadful, long, bitter divorce. I would classify Sarah as a great asset, I would definitely hire her again for myself, and recommend her to others. She's pretty awesome. My divorce is over, and I don’t think it could’ve gone any smoother.

    -Maria

  • I retained Amy Jo Knussman in October 2013. I was going through a very difficult time and needed a child custody and family law attorney. Ms. Knussman and her staff exceeded my expectations in every way. Ms. Knussman was very familiar with the court my case was being heard in. She told me exactly what was going to happen each step of the way. My calls and emails were always answered promptly. Ms. Knussman is truly an excellent attorney with great energy who gets the job done. I now have primary physical custody of my daughter with a child support order in place. I would recommend this law firm to anyone who finds themselves in an unfortunate family situation.

    -Melinda

  • Amy and her entire team did an outstanding job throughout the entire divorce process. The whole staff was entirely trustworthy, objective and helped my family and I come to an agreeable settlement. At the same time she solidly represented my myself and my interests with the utmost respect and professionalism. I have no reservations whatsoever about recommending her to anyone whatsoever.

    -John

  • I hired Amy to resolve my custody, visitation, child support and divorce cases. She is very professional, bold, not afraid of confrontations, and confident. She always responds to my emails and phone calls. I definitely would recommend Amy Knussman for your matrimonial cases.

  • Ms. Knussman, and her very professional staff, recently represented me in my divorce proceedings and I could not be more pleased with the results. Ms. Knussman really took the time to listen to the specifics of my case and recommended the best course of action for me to take, which I know saved me significant time (and legal fees) in the long run. I would highly recommend Ms. Knussman and her staff to anyone who is seeking legal representation for a matrimonial matter.

    -Amy

  • It is one of the darkest days when your spouse decides to leave. The world you've worked your life for is turned upside down and then put onto a cutting board for dividing up like vegetables for dinner. Amy was referred to me by a trusted friend as I had no knowledge of divorce, divorce attorneys or any aspect of the law in this regard. I arrived at her office with a folder that contained my life in the form of some spreadsheets and legal documents that I understood independently but not in the context to which I was being forced. Amy's demeanor quickly put me at ease and after listening to my story, she took my materials for review. Over the course of a couple weeks she made suggestions and offered invaluable advice based on my situation and how I desired to handle it. Throughout the process Amy listened to my wishes and respected the ways I wanted things handled with respect to my spouse. Now that this chapter is closed I can look back and say that Amy's legal services, advice and sometimes just listening made the entire process easier to understand which in turn provided peace of mind which I desperately needed. In addition to Amy, the entire staff is compassionate and helpful, a truly professional organization.

    A Sincere Thank You

  • After hearing the old cliché “its cheaper to keep’em” I hesitated for years on initiating a divorce. As, things in the household became less tolerable I decided to look into divorce proceedings. I was referred to Amy and her team by a friend during my research phase of applying for a divorce. Amy was able to help me understand the battle in which I was about to engage very clearly. I would never question her ability to provide sound counseling on divorce matters. She also had a keen ability to provide sound recommendations during the negotiating process which assisting in us not needing to step into a courtroom once. I could not be more satisfied with the final agreement she was able to broker. Without a doubt Amy would be the first person I will recommend to anyone looking into divorce proceedings.

    -Jason

  • Excellent, knowledgeable, professional representation. Superb lawyer. Understood all the complicated details of my case instantly and gave me a comprehensive review of options. Her office is very busy and everyone seems to be very professional in their conduct. I recommend wholeheartedly.

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  • Trustworthy, caring and diligent! Amy Knussman represented me in a very ugly divorce and child custody case. Not only was she understanding, caring and protective, but she was extremely poised, well spoken and extremely knowledgeable about the law. I would highly recommend her and her staff (Sarah and Kathleen) for any family law issue. I would use this firm again without a second thought.

    -Candice

  • Amy was professional and extremely knowledgeable. Her approach and demeanor puts you at ease. There are very few court issues more raw and emotionally draining then a custody issue for a parent. As a father looking for custody it can be a daunting uphill battle. Amy and her staff held my hand through the process. They made me feel they truly cared about my daughter...

    -Rob

  • Top-Rate Lawyer. Theresa Donnellan is not only an excellent lawyer, but she is also kind and compassionate. Theresa and her firm helped me during a very difficult time in my life and I will be forever grateful to them for the professionalism, attention to detail, care and understanding that went into every aspect of our correspondence. This firm is a class act!

    -Stacey

  • Excellent experience with Terry. She is knowledgeable, professional, honest, and understanding. I have nothing but good things to say about Terry. I felt she prepared me thoroughly for what to expect throughout a sometimes difficult process. Her support staff is always helpful as well.

    -Mike

  • I retained Amy as an independent reviewer of the divorce mediation agreement being put together by another attorney. Amy patiently and thoroughly walked me through the various issues (mortgage, child support, health care, tax deductions, etc) that would be addressed in the divorce agreement. She explained all issues well, and gave good advice about potential complications. Most importantly, she explained things in a language that I (knowing very little about divorce or legal terminology!) could understand.

    After the Divorce Mediator put together the divorce agreement, Amy reviewed it in a very timely manner, and provided suggestions for valuable changes that were subsequently accepted by both parties. As things progressed, she continued to be available to answer my many questions about the divorce process.

    I strongly recommend Amy for anyone thinking about or in the process of filing for divorce.

    -Dave

  • I can't say enough good things about Ms. Knussman and her team. My divorce and custody case was a very difficult time in my life, full of uncertainty and stress. Amy and her team routinely made the process understandable, provided quick useful advise and helped me to make the best decisions for myself and my children. I am certain that I had the best outcome possible and owe it to the experience and dedication of Amy.

    I have personally recommended Amy and her team to a number of people in need of counsel and will continue to into the future.

    Thanks, Amy!

    Todd

  • Ms. Knussman has represented me and has been my ongoing attorney for nearly 11 years. She has been my sole attorney during my separation, divorce, family court and several child support issues. Ms. Knussman represented me in Saratoga County NY and now willingly drives to Lewis County NY, where I reside, to represent me.

    Over the years Ms. Knussman and I have developed a wonderful professional relationship. She is forthcoming, knowledgeable and easily accessible. She has demonstrated patience’s and compassion during some very sensitive issues. Her demeanor in the courtroom is of confidence and respectfulness. She is clear, concise and very direct. She presents herself in a very professional manor and is very articulate. She has listened to my concerns and the concerns for my children’s future. Ms. Knussman has been extremely successful in her representation of me and on behalf of my children.

    With great respect I would most highly recommend Ms. Knussman. Furthermore, I have sincere appreciation and thanks for the accomplishments she has achieved in the courtroom and otherwise for myself and my children’s future.

    Respectfully submitted
    Valerie

  • A great combination of legal expertise and customer service. Amy has served as my legal counsel for almost ten years. During that time she has helped me deal with several challenging legal matters in a professional, courteous and caring way. She always listens to my needs and looks out for my interests. She also understands my need to get quality service at a reasonable price.

    -Karen