Estate, Powers and Trusts, § 3-1.2: What Property May be Disposed of by Will

A last will and testament is a declaration of how you would like your property distributed after death. It is more than a list that you scribble on a piece of paper. It is a legally enforceable declaration that must be written and executed according to New York estate law in order to be valid. When you make a will, you are referred to as the testator. Those who receive property from your will are called beneficiaries. The gifts that you leave to others in your will are referred to as testamentary gifts or bequests. According to § 3-1.2 of the Estate, Powers and Trusts law, bequests may include “every estate in property.” This means that your estate in property is the sum of the value of your property, less your liabilities. In other words, through your will you can leave to beneficiaries of your choosing practically any property that you own including personal property, real estate, cash and securities. To learn more about drafting a will and leaving your property to your relatives, friends, employees, and charitable organizations, contact an experienced New York will lawyer at the Law Offices of Stephen Bilkis & Associates.

What property may be disposed of by will

Property that can be disposed of by will during probate is typically personal property, financial property, and real estate.

• Personal property: Clothing, jewelry, home furnishings, accessories, vehicles, and collectibles.
• Financial property: Bank accounts, investment accounts, cash, contents of a safe deposit box.
• Real estate. Real estate that you own individually, or your interest in real estate that you own as a tenant in common.

Property that is not included in your probate estate

However, not all of your property will pass to your beneficiaries through your will. If you include in your will assets that legally pass to another person outside of a will, then that specific bequest will fail. Such property includes:

• Property held in joint tenancy. Property is held in joint tenancy if 2 or more people share ownership of that property. When you pass away, property that you held in joint tenancy commonly has a right of survivorship, meaning that it will automatically pass to the surviving co-owner or co-owners. As a New York will lawyer will explain, while this type of property is often owned by spouses, it can also be owned by other relatives, non-relatives, or business associates.
• Living trust. If you had transferred assets to a living trust during your lifetime, upon your death those assets will be transferred to the beneficiaries you designated in the trust.
• Life insurance. Proceeds of a life insurance policy will go to the beneficiaries you designated in the life insurance policy documentation. However, if you name your estate as the beneficiary of the insurance policy, then the proceeds will go into your estate and be distributed according to the terms of your will.
• Retirement Plans. Money in a retirement plan such as a pension plan, IRA, 401(k) plan, or any other type of retirement plan will go to the beneficiaries you named on the beneficiary designation form. If you are married, your spouse is by law your designated beneficiary.
• Payable-on-death account. If you have money in a payable-on-death (POD) or a transfer-on-death (TOD) bank account or other type of financial account, whatever money is left in the bank account upon your death automatically goes to the POD or TOD payee. It is not necessary to include that bank account as an asset in your will. If you attempt to leave that bank account t someone other than the POD designee, that bequest will fail.
• Inter vivos gifts. Any gifts that you give before you die are not subject to your will. For example, if in your will you leave your SUV to your niece, but a few weeks before you pass away you give it to another relative, the SUV is no longer a part of your estate and your niece will have no claim to it.

In addition, property that is not mentioned in your will and does not pass outside of your will, will be part of your intestate estate. This means that such property will be distributed to your legal heirs according to New York’s rules related to intestate succession. To help you understand how having a will can help you attain your personal goals, contact an experienced will lawyer serving New York who will be able to educate you not only about wills, but also on other estate documents such as trusts, advanced health care directives and financial powers of attorney.

Example

In his will, Jerry made the following gifts: he left the house he owned as a joint tenant with his wife to his brother; he left the condo that he owned as a joint tenant with his business partner to his sister; and he left the brownstone that he owned to his uncle. The gift to his brother will fail. Because he co-owned the house with his wife as a joint tenant, his wife automatically gets Jerry’s interest in the house when he passed away. The gift to his sister would only be the interest that Jerry owned in the condo. Jerry’s business partner would retain the interest in the house that he owned. If Jerry was the sole owner of the brownstone, the gift to his uncle would be valid.

Related Statutory Provisions

1. Who may make wills of, and exercise testamentary powers of: Estates, Powers and Trust, § 3-1.1
2. Who may receive testamentary dispositions of property: Estates, Powers and Trust, § 3-1.3

Estate, Powers and Trusts, § 3-1.2- What property may be disposed of by will

Every estate in property may be devised or bequeathed.

Contact the Law Offices of Stephen Bilkis & Associates

In order to ensure that the relatives, friends, employees or organizations of your choice receive the property that you want them to receive, it is important that you understand which property is part of your probate estate and which property passes outside of your will. The experienced will attorneys in New York at the Law Offices of Stephen Bilkis & Associates have significant experience helping clients create and execute wills, change wills, and create other estate documents that are consistent with their individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.