Bronx Holographic Will

A last will and testament provides a means for you to make sure that your preferences for who 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 is consistent with New York 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 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 Attorney who will explain to you what is required to draft and execute a valid will in New York.

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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 subjected 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.

Holographic Will

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.

Nuncupative Will

A nuncupative will, sometimes referred to as a deathbed will, is an oral will. Oftentimes an oral will is made because the testator feel that he or she is in danger of passing away soon, and cannot make any other type of will. The problem with an oral will is that like a holographic will, a nuncupative will is valid in New York under only a few very narrow circumstances. A nuncupative will is only valid when made by a member of the United States armed forces during a time of armed conflict, someone accompanying the armed forces, or a mariner at sea. A nuncupative will must be witnessed by two people. In order words, two people must be present to here you state your wishes. NY EPTL § 3-2.2.

Nuncupative wills and holographic wills allow individuals whose lives are in danger to make a will without the normal formalities. Those who are in the military in the middle of a conflict or out at sea do not have the luxury of being able to write a will on a computer. Similarly, mariners at sea may also find their lives in peril and are not likely to be able to make a will that is executed with all of the formalities required by New York law. On the other hand people who are not in the military and who are not mariners at sea typically have the time and access to the resources to make a properly executed will.

Other Types of Wills

A joint will is a single will that is executed by more than one testator. Typically a joint will is made by spouses. A joint will usually provides that each testator leaves the bulk of his or her property to the other testator. For instance with a joint will if your spouse dies before you, you will inherit all of his or her property. If you die first your spouse will inherit all of your property. A joint will may also set forth what happens to the property after the second testator passes away. For example, a joint will made by spouses may provide that upon the death of the second spouse the property that is part of the joint estate goes to the children or to a charity. This means that if the second spouse remarries, he or she will not be able to leave the property that is part of the joint estate to the new spouse.

Reciprocal wills are similar to a joint will. They are a means for one person to coordinate estate planning with another person. Reciprocal wills are two separate wills that typically have complementary provisions that each person will provide for the other. While often made by spouses, reciprocal wills can also be made by siblings, or any two or more people who find a need to coordinate estate planning in this manner.

Consequences of Dying without a Valid Will

Both holographic wills and nuncupative wills are unique types of wills that will only be considered valid if made under certain extreme circumstances. In all other circumstances, neither a holographic or nuncupative last will and testament will be found to be valid and neither will 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 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 or a nuncupative 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.

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 includes 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, collectibles such as fine art and baseball cards, assets that are a part of your small business, 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.

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. 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 decide who to distribute your other assets to your other beneficiaries.

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.

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.

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.

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 affect 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 holographic or nuncupative will while in the military or while a mariner at sea, such a will may is only valid for a limited period of time. 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 practitioner. 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 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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