Call Us at (518) 884-0200 to
schedule your confidential Consultation!



Litigation | Collaboration | Mediation

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 Law, 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.

(Note: Messages sent using this form are not considered private. Avoid sending highly confidential or private information via e-mail.)


  • It was a great pleasure working with Sarah Wood and her team. Sarah is all you want an attorney to be - very professional, friendly, knowledgeable, and prompt. My case had the potential to be very messy, but with Sarah expertise and knowledge of the situation, she advised me of possible outcomes, and was honest and clear in her assessment. Sarah makes herself available by e-mail, phone or in person taking much of the stress out of the process. She will work with you toward finding the best solution for you and for your situation. In the end, I know I got the best possible outcome and I am beyond satisfied with the result. Sarah’s representation made all the difference. If you find yourself in need the legal services. I would recommend Ms. Wood without reservation. Thank you!

  • 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.

  • 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.


  • The 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 they solidly represented myself and my interests with the utmost respect and professionalism. I have no reservations whatsoever about recommending them to anyone whatsoever.


  • 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.


  • 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!


  • 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.


  • 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!


  • Excellent Lawyer. Fully explained to me all my options in a very professional manner. I felt very well represented. Tried to resolve all my issues in a timely fashion. I would recommend wholeheartedly.