A will is one the most important estate planning documents that you can have. A will allows you to set forth how you would like your assets distributed upon your death. In a will you can also nominate someone to serve as your children's guardian should you pass away while they are still minors. Making a will is more than simply sharing with your family members your choices, or writing a letter stating what you want to happen with your property. In order for a will to be legally enforceable it must be made and executed in manner that is consistent with the laws of New York. A holographic will is a will that is written without the formalities that are typically required in order for a will to be valid in New York. However, under certain narrow circumstances a holographic will is legally enforceable. However, those circumstances are very unusual. In all other circumstances a holographic will is not legally enforceable and will not be probated. In order to ensure that your will is legally sufficient and will be probated, it is a good idea to consult an experienced Staten Island Holographic Will Attorney who will explain to you what is required to draft and execute a valid will in New York.
A will, also referred to as a last will and testament, is a legally enforceable document in which you specify how you wish your assets to be distributed once you pass away. In addition, in your will you can nominate someone to be the guardian of your children should you pass away while they are still minors. There are several different types of wills. The type of will that you will need depends on several factors including the size of your estate, the needs of the beneficiaries to whom you want to leave gifts, and your personal goals.
What are the requirements for a valid will in New York?New York law has very specific requirements that must be followed in order for a Surrogate's Court judge to find that a will is valid and admit it to probate. Generally, a testator must sign the will at the end. If the testator is physically unable to sign, then another person can sign it for the testator as long as the testator directs it, is present, and is mentally competent. At least two people must witness you signing the will, and each witness must also sign the will. NY EPTL § 3-2.1(a)(4) The witnesses must be present when the testator signs the will. If not the testator must acknowledge to each witness that he or she did indeed sign the will. 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 subject to a will contest.
The purpose of these requirements is to reduce the possibility of fraudulent wills being admitted to probate. Just because a will appears to be valid, does not mean that it cannot be successfully challenged. Any interested party, including a beneficiary or an heir could initiate a will contest. If that happens, the Surrogate's Court judge will review testimony from the people who witnessed the signing of the as well as any other available evidence to determine if the will is valid.
Is a holographic will valid in New York?A holographic will is a will that has been handwritten by the testator and that was not attested to by two witnesses. NY EPTL § 3-2.2. A holographic will poses proof problems since once the testator has passed away there is no evidence in the will itself that it was made by the testator. However, because of the unique, perilous circumstances members of the armed forces and mariners may find themselves in, a holographic will be admitted to probate only in the limited circumstance where it is written by a member of the United States armed forces during a time of armed conflict, someone accompanying the armed forces during a time of armed conflict, or written by a mariner out at sea.
An important point to keep in mind is that a holographic will becomes invalid 1 year after the testator ceases serving with the armed forces, or in the case of a mariner at sea, 3 years after the will was made. For this reason it is important that if you make a holographic will, after you have left the armed forces or are no longer a mariner at sea you make another will that is compliant with the general requirements of New York law.
Because only those in the military and mariners can make legally acceptable holographic wills, if you do not fit into one of those categories, jotting downing on a piece paper your last wishes for the distribution of your property will probably not be sufficient under New York law.
What if my holographic will is not valid?A holographic will is unique types of will that will only be considered valid if made under certain extreme circumstances. In all other circumstances, a holographic last will and testament will not be valid and will not be probated. If this happens then your estate will be treated as if you died without leaving a will. In New York if you do not leave a will your estate will be disposed of according to the laws related to intestate succession. NY EPTL § 4-1.1.
Under the rules of intestate succession if when you pass away you have a spouse, but no kids, then your spouse will inherit all of your property. If you are survived by your kids but no spouse your children will inherit all of your property in equal shares. If you have both a surviving spouse and kids, then your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. The remaining portion of your estate will be distributed in equal shares to your kids. If you have no spouse and no kids, but you have surviving parents, then your parents will inherit all of your property. If you do not have a surviving spouse, kids, or parents, then your siblings inherit all of your property in equal shares. If you die leaving no surviving spouse, kids, parents or siblings, then your property will go to your grandparents, aunts, uncles, or cousins.
While this occurs only rarely, if you die leaving only a holographic will and the court determines it to be invalid, then there is a possibility that your property will end up in the hands of New York State, by a process called escheat.
For purpose of inheriting under intestate succession, children who are legally adopted have the same inheritance rights as biological children. Unless you legally adopted them, foster children and stepchildren are not entitled to inherit under intestate succession as they are not considered to be biological children. Biological children whom you placed for adoption and who are adopted by a non-family member are not entitled to inherit. Posthumous children, meaning children conceived by you, but not born before your death are biological children and are entitled to a share of your estate. If you father a child outside of marriage, that child will be entitled to a share of your estate if paternity is established. Grandchildren are not automatically entitled to a share of your estate. However, if your child predeceases you, then your child's child (your grandchild) is entitled to inherit.
Having a valid will is critical to your estate plan. If you execute a will that will not be admitted to probate or that will not survive a will contest then your property will be distributed according to New York's intestacy laws. NY EPTL § 4-1.1. This may result in a distribution of your estate in a manner that is different from your intentions. While your spouse and your children will be cared for, New York intestacy rules do not allow for individuals who are not blood relatives or adopted children to inherit. Suppose that in your holographic will you stated that you want your estate to be divided equally among your spouse, your closest friend, and your college. If your holographic will is considered invalid because it was not made under the strict requirements of New York law, then your wishes will not be fulfilled. In fact, under New York law the only way that a non-relative will share in your estate is if you make such a provision in a valid will.
If you have a holographic will that was valid when made, but is no longer valid, you should make a new will right away. Otherwise, you risk your estate falling into intestacy. The best course of action to ensure that you have a valid will that is well thought-out and properly executed is to work closely with an experienced practitioner. The staff at Stephen Bilkis & Associates, PLLC will help you make a properly executed will as well as other estate planning documents such as a trust, living will and power of attorney. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations: