Why You Really, Truly Need to Have a Will

By Stephen J. Silverberg
New York Elder Law Attorney

Here’s a teachable moment that should convince anyone that they really need to have a will and an estate plan in place. It is based upon a real case I wrapped up earlier this week after a delay of over 5 years. A married couple, Bubbe, and Zaydi (not their real names) had five children, all born in the early 1920’s to 1930’s. The five children have a gaggle of cousins. Bubbe, Zaydi and the aunts and uncles all died without wills.

Two cousins who were sisters died between eight to ten years ago. The first sister married but had no children. The other never married; neither had children.

When the non-married cousin passed, without a will, the county went looking for heirs, and only found maternal relatives.

Under New York State law, if there is no known paternal relative, the county Public Administrator must administer the estate. The youngest first maternal cousin is in her mid-sixties, and except for the deceased sisters, everyone else lives in out of state.

After six years of no progress, the surviving cousins and the children of cousins discharged their attorney and retained my office.

Except for the cousin mentioned, all of the remaining first cousins are between 75 and 90 years and suffered severe physical and mental issues. They desperately need the bequests to maintain the quality of life. I agreed to accept a contingency fee well below the standard rates.

Years after the sisters died, one of their beneficiary cousins passed, seeing no part of his bequest. The Public Administrator decided the surviving cousins must prove the family relationship to their deceased cousin through a kinship hearing. As one can imagine, this is difficult since there were no unrelated individuals living to proffer the impartial evidence needed to prove family residents. Also, in New York, a beneficiary of an estate is barred from giving testimony about any conversations held with the decedent.

We commissioned a genealogical report prepared by nationally-known, impartial genealogical search firm, hoping to find non-related individuals with knowledge to testify and establish the family ties.

In a cruel twist, the search firm located a single previously unknown male cousin.

Suddenly, the cousins found out they would only share in half of their cousins’ estate, and the newly discovered paternal heir would receive the remaining 50%.

The estate finally settled through a formal kinship hearing in the county’s Surrogates Court. Fortunately, enough documentation was discovered to the satisfaction of the Court, who found they were the lawful heirs of the decedent. So after eight tumultuous years and an additional $100,000 in additional expenses and costs, the family received less than half of what they expected.

Without pouring salt on the wounds, the above results were preventable. Had each family member completed proper estate planning using wills, trusts, and other planning devices, the family could have received the amount they expected without the astronomical costs. The family may have saved several thousand in attorneys’ fees, but instead, it cost them hundreds of thousands of dollars.

About the Author
Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning, and elder law. He is a past president of the prestigious National Academy of Elder Law Attorneys (NAELA), and a founding member and past president of the New York State chapter of NAELA.