I often meet with clients who believe the time to create a will is in the distant future—a task for retirement, perhaps. They see it as a final step. But in my practice, the most difficult conversations happen when that final step was never taken. Consider a young couple in Brooklyn buying their first co-op. They have some savings, a 401(k), and now, a major asset with a mortgage. They assume that if something happens, everything automatically goes to the surviving spouse. That assumption can be a costly mistake.
The question isn’t about how much you have. It’s about who has control. Without a will, you hand that control to the New York Surrogate’s Court. The process that follows is public, often slow, and the outcomes are dictated by statute, not by your intentions.
Your First Will Is About Control, Not Wealth
The most common reason people give for not having a will is, “I don’t have enough assets to worry about.” This misses the will’s fundamental purpose. It is not primarily an instrument for the wealthy; it is an instrument of instruction. It is your one chance to speak after you are gone.
For young families, the most critical provision in a will has nothing to do with money. It is the appointment of a guardian for minor children. If you and your spouse were to pass away without a will, a judge who does not know you or your family will decide who raises your children. Family members may disagree, leading to a painful court battle that can create permanent rifts. Your will is the only document where you can legally nominate the person you trust to take on this profound responsibility. Stewardship.
Similarly, a will allows you to name an executor—the person or institution you task with managing your estate. This person will be your fiduciary, responsible for paying your debts, gathering your assets, and distributing them according to your instructions. By choosing your executor, you place this duty in the hands of someone with the integrity and judgment to see it through. Without your choice, the court appoints an administrator, and it may not be the person you would have wanted.
Life Events That Should Trigger a New Will or a Review
A will is not a static document, created once and filed away. Your will is a plan that must evolve with your life. Certain events should immediately prompt you to either create your first will or review an existing one. These are not suggestions; they are necessities.
- Marriage: When you marry, your legal relationship to your assets and your spouse changes dramatically. A pre-existing will is not automatically invalidated, but your new spouse gains significant rights under New York law. You must draft a new will that reflects your shared intentions as a married couple.
- The Birth or Adoption of a Child: Your will is where you provide for your children and name their guardian. While New York law offers some protection for children born after a will is signed—under EPTL § 5-3.2, the “after-born child” statute—relying on this default is imprudent. An intentional plan is always better than a legal backstop. You must explicitly state how you wish to provide for each child.
- Divorce: A divorce decree automatically revokes any dispositions to your former spouse in your will and removes them as a nominated fiduciary. You must, however, create a new will to redirect those assets and name a new executor. Waiting leaves a void in your plan.
- Significant Financial Changes: This includes purchasing a home, receiving a large inheritance, or a major change in your business. These events alter the landscape of your estate, and your will must be updated to account for them deliberately.
Failing to update your will after these events means an old, outdated plan may be submitted to the court. I have seen estates where an ex-spouse remained the beneficiary of a life insurance policy, or where a new child was protected only by the statute’s bare minimum. These are not the legacies people intend to leave.
The Default Plan: Dying Intestate in New York
When a person dies without a will, they are said to have died “intestate.” In these cases, New York provides a rigid, one-size-fits-all formula for distributing assets. This plan is outlined in Estates, Powers and Trusts Law § 4-1.1. It does not consider your relationships, your wishes, or the specific needs of your family.
For example, if you die with a spouse and children, your spouse does not inherit everything. Your spouse receives the first $50,000 and one-half of the remaining estate. The other half is divided among your children. This can create unintended hardship, especially if the family home was the primary asset and must be sold to satisfy the children’s share. If you have no spouse or children, the law works its way through your family tree—parents, then siblings, and so on. A distant relative you barely know could inherit everything, while a lifelong partner to whom you were not married receives nothing.
The intestate process is administered by the Surrogate’s Court. A family member must petition to be appointed administrator, post a bond, and account to the court for every action. It is a bureaucratic, stressful path that a will avoids.
The time to make a will is before it is needed. It is an act of responsibility and a foundational piece of your family’s financial security. It ensures your voice is the one that matters when decisions must be made.
If you have experienced a major life event or do not have a will, the prudent next step is to understand what is at stake. We can outline your family structure and inventory your assets to determine the plan required to protect them.
