and Your Family
Bronx Holographic Will
A last will and testament provides a means for you to make sure that your preferences for whom gets your property upon your death are fulfilled. Without a will you give up control over making decisions about who gets you property as well as who will manage your estate after you die and who will take care of your minor children. In order for your wishes to be carried out, not only must you write a will, you must write a will that meets the requirements of New York estate law. However, there are circumstances where the testator simply cannot make a will that is compliant with the laws of New York. Instead, the testator handwrites his (or her) will, or makes an oral will. A handwritten will is known as a holographic will and an oral will is a nuncupative will. Unfortunately, generally speaking neither holographic nor nuncupative wills are valid in New York. If you make a holographic or nuncupative will that the Surrogate's Court refuses to admit to probate, your estate will be treated as if you died intestate, meaning that you died without leaving a will. The consequence of dying intestate is that your estate will not necessarily be distributed according to your wishes. In order to ensure that your will is legally sufficient and will be probated, it is a good idea to consult an experienced Bronx holographic will lawyer who will explain to you what is required to draft and execute a valid will in New York.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 competent people must witness you signing the will, and each witness must also sign the will. NY EPTL § 3-2.1(a)(4) The witnesses should be present when the testator signs the will. If not the testator must acknowledge to each witness that he 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 contested.
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.Holographic will
Under New York Estates, Powers and Trusts Law § 3-2.2 a holographic will is a will that has been handwritten by the testator and that was witnessed. 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, and there are no witnesses to testify about the execution of the will. However, as an experienced Bronx holographic will lawyer there are special circumstances under which the New York Surrogate’s Court will probate a holographic. Because of the unique, perilous circumstances members of the armed forces and mariners may find themselves in, a holographic will be admitted to probate if 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.
However, once the testator is no longer in the circumstances, New York wants the testator to draft and execute a will with witnesses and the normal formalities. Thus, the law states that a valid holographic will becomes invalid 1 year after the testator leaves the military, or in the case of a mariner at sea, 3 years after the will was made.
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 down on a piece paper your last wishes for the distribution of your property will probably not be sufficient under New York law.
There is one other circumstance under which a holographic last will and testament will be admitted to probate in New York. If the will was executed in a state that allows holographic will, and if the testator was a resident of that state at the time, then the New York Surrogate’s Court will admit it to probate.Consequences of dying without a valid will
A holographic will is a unique type 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 be found to be valid and will not be admitted to probate. If this happens 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, your spouse and your kids are your primary heirs and will inherit your entire estate with your surviving spouse getting slightly more than your kids. In the absence of a surviving spouse or kids, your property will go to other relatives based on a preference order described in the statute. As an experienced Bronx holographic will lawyer will explain, in the absence of a valid will, your property will not go to non-relatives and it will not go to institutions.
While this occurs only rarely, if you die leaving only a holographic will will and the court determines it to be invalid, then there is a possibility that your property will end up in the hands of the State of New York by a process called escheat.Steps to making a will
Anyone who is at least 18 years old and is not suffering from a mental incapacity can make a will under New York law. If you meet these requirements, making a will requires the following steps.
- List your assets. Start off by making a list of your property. Once you start to think about this and write it down, you may discover that you have more property than your think. Examples of assets include the balances in your savings and checking accounts, investments managed through a brokerage account, life insurance, retirement plans such as pension plans or 401(k) plans, personal property such as vehicles and home furnishings, appliances, collectibles such as fine art and baseball cards, assets that are a part of your small business, certain property that you own jointly with another person, royalties that are owed to you, property of yours that other people are using, and digital property such money in an ecommerce account.
- Decide on a guardian for your children. If you have minor children, an important part of your will is naming who will be their guardian in the event that you predecease them and the other parent is also not available to take care of them. While your first thought might be to name your close friend or a sibling, there is a lot to take into consideration when making this decision. Some things to consider include the potential guardian's age, maturity, where that person lives (do you want your kids to move away from where they have been living), parenting style, religious beliefs, moral values, attitude toward education, and general health. You also need to choose who will be responsible for managing any assets that your children inherit from you.
- Next you will have to decide who will get your property. For example, you may decide that you want your spouse, children, sister, brother, and favorite charitable organization to each benefit from your will. In your will you can state which property each beneficiary gets, including the amount of cash each one is to receive. As an experienced holographic will attorney in the Bronx will explain, you should keep in mind that not all of your assets are subject to your will. Certain assets pass outside of your will, such as the proceeds of your life insurance policy as well as retirement plans. If your spouse will get a substantial amount of money from your life insurance, for example, then you may take that into consideration when deciding to whom to distribute your other assets.
- Special considerations. If you have family members who need special consideration such as a relative with a disability, with your will you can leave that child money in a special needs trust so that that child will be properly cared for. You can even leave money for the care of your pet in an honorary pet trust.
- Name an executor. Another important decision when making your will is to decide who will be your executor. The executor of your estate will be in charge of settling your affairs and transferring your assets to your beneficiaries according to the terms of your will. In carrying out this responsibility your executor will have some degree of discretion. For this reason it is important to select a person who you can trust. While a spouse, adult child, or close friend may be a good choice, there are also corporate executors available.
- Execute your will. You will then work closely with an experienced practitioner who will draft your will. Then it must be signed by you in the presence of at least 2 witnesses. Keep the original in a safe, yet accessible place and let your executor know where it is. Also make sure that your executor has the names and addresses of your beneficiaries, heirs and other interested parties so that your executor can quickly contact them when it is time to settle your affairs. If there is a hard-to- locate beneficiary when it is time to probate your will, the distribution of assets may be delayed.
- Revisit and revise. Every 2-4 years review your last will and testament to determine if you need to make any changes. Life changes such as marriages, divorces, births, and deaths may necessitate changes to your will. Another reason to revisit your will is if there is a significant change to your financial situation or if you acquire or get rid of a significant asset. There may also be changes in the law that impact your will such that you might need to make revisions.
Generally, holographic wills are not valid in New York and will not be probated. Even if you made a valid holographic or nuncupative will, such a will may is only valid for a limited period of time after you leave the circumstances under which you made the will. The best course of action to ensure that you have a valid will that is well thought-out and properly written is to work closely with an experienced holographic will attorney serving the Bronx. The staff at Stephen Bilkis and Associates 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 case. We represent clients in the following locations: Queens, Brooklyn, Long Island, Nassau County, Bronx, Staten Island, Manhattan, Suffolk County, and Westchester County.