A last will and testament is a legal document in which you leave instructions as to who should receive your assets upon your death. It also allows you to name guardians for your minor children. Upon your death, the executor named in your last will and testament will present your will to the court, requested that it be admitted to probate. Probate is the legal process that culminates with your property being distributed to your beneficiaries. While a last will and testament is an important estate planning document, it may not be the only one that you need to attain your planning goals. To create a will and other estate planning documents that are specifically tailored to accomplish your personal goals, contact an experienced Nassau County Last Will and Testament Lawyer to guide you through the process.
There are several reasons to have a last will and testament. One important reason is to provide for your spouse, children, relatives and others in the way you chose. In other words, a will allows you to have control over how your assets are distributed. For example, if you can leave one relative your jewelry, while leaving another your house and still another your bank account. If you have a cousin who is going to need help paying for college, you can make that cousin a beneficiary of an education trust. For your little sister who has special needs, you can leave her money in a special needs trust. And if you have relatives who you want to leave nothing, with your will you can do so and even include a statement that you are intentionally leaving him or her out of your will. This will help minimize family squabbles as with a will you can leave clear instructions as to who gets your property and who does not.
What are the requirements for making a will?New York has specific requirements that must be followed in order for a will to be valid. In order to make a will, you must be at least 18. In addition, you must not be mentally incapacitated or under duress. The will must be in writing and you must sign it at the end. It must also be witnessed by at least two people who are not also beneficiaries. NY EPTL § 3-2.1(a)(4). If these formal requirements are not followed, the Surrogate's Court judge may refuse to admit the will to probate, or the will may be subjected to a will contest. In either case, there will be a delay in your assets being distributed to your beneficiaries.
In some cases relatives of a deceased testator challenge a will, arguing that the testamentary did not have the mental capacity to execute the will. The evidence of lack of testamentary capacity is typically the fact that the testator suffered from a psychological disorder such as dementia. However, a person who has a diagnosed psychological disorder may still have the ability to executed a will. Whether you have testamentary capacity to make a will is based on your mental state at the time your created the will. In In re the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the decedent suffered bouts of psychiatric problems around the time that he executed his will. However, there was no evidence that the testator did not have testamentary capacity at the time the will was executed. The court concluded that all that is required for there to be testamentary capacity is for the testator to experience a "lucid interval" during which time the will is executed. Similarly in In the Matter of the Estate of Rose McCloskey, 307 A.D.2d 737 (2003), the court concluded that although the testator suffered from depression, affective disorder, dementia and other disorders, there was no evidence that she lacked testamentary capacity when the will was executed.
In a limited circumstance, holographic or nuncupative will are permissible in New York. A holographic will is one that has been entirely handwritten by the testator and was not witnessed. NY EPTL § 3-2.2. A nuncupative will is one that is oral and witnessed by at least 2 people. Holographic and nuncupative wills will be considered valid only when created by a member of the United States armed forces or someone accompanying a member of the armed forces during a time of conflict.
What are the different types of last will and testaments?There are a number of different types of wills that you may use, depending on your personal circumstances. The most common type of will is referred to as a simple will. This type of will may be appropriate if you have a small, uncomplicated estate and without any complex requirements. With a simple will you can name an executor, leave specific bequests to your named beneficiaries, and name guardians for your children.
However, your goals, financial situation, and personal situation may lead you to create another type of will. Spouses sometimes create wills in which provide that they leave each other their complete estates. With reciprocal wills you and your spouse create 2 wills that provide that each of you bequeaths your entire estate to each other. Similarly, with a joint will, you and your spouse create a single will that provides that each person would get the survivor's estate. While reciprocal wills and joint wills are commonly created by spouses and domestic partners, they can be create by 2 individuals who are not in a spouse or domestic partner relationship.
Holographic wills and nuncupative wills are unique because they are created without the formalities that are typically required by New York law. Among other things, New York law requires that wills be written and witnessed by at least 2 people. However, a holographic will is handwritten by the testator and is not witnessed. A nuncupative will is witnessed by 2 people, but is oral and not in writing. Holographic and nuncupative wills are only valid if they are made by a member of the U.S. armed forces or a person accompanying a member of the armed forces during a time of conflict, or by a mariner at sea. NY EPTL § 3-2.2.
Another special type of will is a pour over will. A pour over will is used in conjunction with a trust. When you pass away any property that will pass through your will will not initially be distributed to your beneficiaries. Instead, it will first "pour over" into the trust. Then the property will be transferred to the trust's beneficiaries.
A codicil is not a will, but an amendment to a will that you had previously executed. It is not uncommon for testators to decide to make changes to their wills after they are executed. Such changes may be prompted by a change in your family such as a marriage, divorce, death or birth. Or it may be prompted by a change in your financial situation. Instead of making a new will, you can execute a codicil. However, if the change is major or complicated, then it may be more appropriate to execute a new will.
What happens if you die without a last will and testament?If you have a will you remain in control of what happens with your assets after you pass away. For instance, suppose you the only blood relative you have is a niece who you have not seen in years. While you have nothing against this niece, you would rather leave your sizeable estate to a couple of buddies that you have been close with since college as well as to a few key employees. You also would like to leave money to your alma mater. With a will you can do exactly that. You can leave your property to whomever you choose.
Without a will your assets will not necessarily go to whom you want them to go. Your assets will be distributed to your heirs according to New York intestacy rules. NY EPTL § 4-1.1. Under these rules your estate would not go to your buddies, your employees or to your alma mater. Your entire estate would likely go to your only blood relative: your niece who you have not seen for years.
New York intestate succession rules require that your surviving spouse receive your entire estate, unless you also have children. In that case, your spouse would inherit the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your children will share in 100% of your estate if you do not have a surviving spouse. If you have no surviving spouse or surviving children, then your statutory heirs would be your parents, grandparents or other blood relatives. NY EPTL § 4-1.1
Another problem with not having a will is that if you pass away and leave minor children the state will decide who will be your children's guardian. With a will you can state your preference for a guardian after discussing with this person. Otherwise, the court will make a determination as to which blood relative should serve as the guardian. The court's choice may not be the person whom you would choose.
What is Probate?Before your assets can be distributed to the beneficiaries you designate in you will, your will must go through probate. It is typically initiated by the testator's executor, when he or she presents your will to the Surrogate's Court. The court will review the will to ensure that it was executed in compliance with New York law. If the court determines that will is valid, then the Surrogate's Court judge will issue the executor "letters of administration," officially appointing the executor and giving him or her full authority to manage your estate.
Your executor will then go about the business of managing your estate. Estate management includes gathering and inventorying your assets, paying your final debts, resolving claims, and ultimately distributing your property to your beneficiaries.
A last will and testament is but one document in a comprehensive estate plan. In order to meet your planning goals, you may need additional estate planning tools such as a living will and trust. The staff at Stephen Bilkis and Associates has years of experience working closely with New York clients to development estate plans to fit their personal and financial goals. To learn more about estate planning , contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.