Bronx Will and Estate

Writing a will is one of the most important things that you can do to make sure that your estate is distributed in the manner of your choosing. With a will you can make specific gifts of your property to each of your loved ones, or you can choose to leave your entire estate to your spouse and children. You can even remember your best friend in your well, a long-time employee, or a charity that is particularly important to you. In other words, a will allows you to maintain control over how your assets are distributed once you pass away. Without a will you give up control over your estate to New York State. Instead of you making decisions about the distribution of your property, New York will apply its own rules to determine which of your heirs will get the assets you worked long and hard to accumulate. Furthermore, with your will you can also make it clear who you chose to care for your minor children should you pass away before they reach the age of adulthood. A will even allows you to make special provisions to ensure that a family member with special needs is cared for. However, in order for your wishes to be carried out your will must be well-drafted and executed consistent with the laws of New York. To learn more about making a last will and testament that will meet your estate planning goals, contact an experienced Bronx Will and Estate Lawyer who will work closely with you to help ensure that your property goes to the people of your choosing.

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Purpose of a Will

One of the main purposes of a will is to set forth who gets your assets after you pass away. There are, however, a number of other goals that you can accomplish with a will. With a will you can name the person whom you choose to take care of your minor children and your children's property if neither your or their other parent is available to care for them.

You can also set up a trust in your will to hold property that you leave to minor children and name someone as the trustee. In your will you will also name someone you trust as the executor your estate who will be charged with the responsibility of winding up your estate and transferring your property to the people you name in your will.

Types of Wills

While all wills are designed for the general purpose of disposing of your property upon your death according to your wishes, your specific goals and personal situation may require the use of a will that has special features. There are several types of wills including a self-proving will, pour over will, joint will, reciprocal wills, holographic will, and nuncupative will. The type of will that you should use depends on your personal situation, your goals, and your financial condition.

A self-proving will is a last will and testament that was executed in such a way that there is little doubt of its validity. This means that after you executed your will the 2 witnesses signed an affidavit attesting to the circumstances surrounding the execution of your will. This does not always mean that the will cannot be contested and that a probate judge will not find that such a will is invalid. It simply means that in the absence of an objection such a last will and testament will be accepted as valid without hearing the testimony of the witnesses or other evidence.

A pour over will is a will that is used in conjunction with a trust. Provisions in a pour over last will and testament will provide that upon your death any property from your estate that is subject to your last will and testament will "pour over" into the trust. For example, if your estate includes a bank account with a $50,000 balance, upon your death and after probate that balance will be transferred to the trust that you set up. It will then be distributed to the beneficiaries of that trust according to the terms of the trust. In essence, a pour over will serves as safety-net to ensure that any property that was not transferred to your trust prior to your death will be transferred to it upon your death.

Holographic and nuncupative wills are both types of wills that are not executed according to the general requirements of New York law. A holographic will is one that is handwritten by the testator but is not witnessed. It is designed to allow members of the armed forces and mariners at sea to make a will while under conditions do not allow for formalities. If a holographic will is made by anyone who is not a member of the armed forces during a time of armed conflict, a person accompanying the armed forces, or a mariner at sea, then under New York law that last will and testament will not be considered valid. NY EPTL § 3-2.2.

A nuncupative will is an oral will that is witnessed by at least 2 people. Because it is oral it is not signed it will only be valid under New York law under the same conditions that a holographic will be considered valid. NY EPTL § 3-2.2.

Reciprocal wills and a joint will are similar. Reciprocal wills involve 2 people making separate wills with complementary provisions that state that the surviving testator will receive the bulk of the other's estate. Reciprocal wills generally also provide for what happens to the balance of the estate once the second person passes away. For example, the reciprocal wills may both state that upon the death of the second testator the balance of the estate goes to a charity. Or if the testators have children together the wills might provide that the balance of the estate goes to the children. While reciprocal wills can be made by any 2 people such as siblings or business partners, they are often made by spouses. Oftentimes the reason that spouses make reciprocal wills is to make sure that should the surviving spouse remarry the balance of the estate is not left to the new spouse.

A joint will accomplishes the same goals as reciprocal wills. Instead of 2 wills, however, a joint will is a single will that is used to provide that the surviving testator receives the other's estate.

It is not unusual that after your execute your will circumstances in your life evolve such that you need to make changes to your will. You can opt to execute a completely new will, or you can amend your will. An amendment to a will is called a codicil. In order for a codicil to be valid it must be executed in the same way a will must be executed. If the changes to your will are so extensive or complex that a new will is warranted, upon the execution of the new will the prior will is revoked. NY EPTL § 3-4.1. If you revoke your will the codicils to that will be revoked as well.

Steps to Making a Will

Regardless of the type of will you make, there are several steps involved in the process.

  1. Make a list of your assets. Start off the will-making process by making a list of your assets. Some people who believe that there is not much to their estate discover that their estate is more extensive than they thought. Examples of property that may be a part of your estate include:

    • Bank accounts such as a checking account, savings account or money market account that hold your cash
    • Brokerage accounts used to hold or trade stocks, bonds, or mutual funds
    • Real estate such as your home, vacation home, or rental property
    • Personal property such as furniture, cars, boats, clothing and jewelry, including property in storage facilities or held by another person
    • Collectibles such as works of art, sports memorabilia, and coin collections
    • Life insurance including life insurance policies on your own life
    • Retirement plans such as pension plans, 401(k) plans, and IRAs
    • Business interests such as a small business that you own or have a part interest
    • Joint property including your interest in property you co-own with another person such as real estate or a business where there is a right of survivorship
    • Money owed to you including significant loans that are outstanding and memorialized in a note or contract.
    • Digital assets such as cash held in an ecommerce account
    • Safe deposit box including property that is in your safe deposit box or in a safe

    Keep in mind that not every type of asset will be subject to your will. Some assets, such as the proceeds of a life insurance policy, will pass to the beneficiary designated on the life insurance documentation, outside of your will.

  2. Protect the children. If you have minor children you have to decide who will raise them in the event that after you pass away and the other parent is also not available to take care of them. You will have to name the person who will be your children's personal guardian as well as the person who will manage your children's estate. Your children's estate will include the property they inherit from you as well as any property they already have or obtain after you pass away. Regardless of the size of your children's estate someone must manage it for them until they reach the age of 18. Some testators name a single person to fill both roles, while others name different people. In deciding who should be your children's personal guardian, some considerations include the potential guardian's age, level of maturity, living situation- does the person have a large enough house or apartment, parenting style, religious beliefs, educational philosophy, moral values, financial situation, and health. In selecting a guardian for your children's estate you should select someone who is responsible and has proven money-management skills.

    Once you make a decision discuss it with the prospective guardians. Make sure that they are willing and able to accept the responsibility. In the case of both the personal guardian and the guardian of the estate, you should name successor guardians in the event that your first choices are unable to serve.

    When including a guardianship provision in your will keep in mind that you should include children who are born after the will is executed.

  3. Distribute your property. Decide who gets your property. You can make specific bequests. For example, if you chose to leave someone a sum of cash, you might provide: "I leave $20,000 to Tom Smith." Or to leave someone a specific asset you might provide: "I leave my rare book collection to Rachel Johnson." Or you could simply leave your entire estate to a single person such as your child.

  4. Special Situations. If you have a special situation that you want to care for through your will, you can. For example, suppose you have a nephew with special needs and you want to make sure he has funds to be properly cared for the rest of his life, then you can set up a special needs trust with your nephew as the beneficiary. You can even leave money to a pet trust that is established to take care of your Labrador Retriever.

  5. Choose an executor. The primary duties of your executor will be to take care of the distribution of your estate and make sure your estate taxes and debts are paid. Naturally, the person you choose to be your executor should be someone you trust implicitly such as your spouse, adult child, sibling, or a close friend.

  6. Write your will. Writing your will is more complicated than simply putting on paper who should get what. It is important that you work closely with an experienced practitioner to ensure that the proper language is used to memorialize your will in order for your will to be effective and survive a challenge. Under New York law, except under very narrow circumstances for your will to be valid, it cannot be oral, it must be written.

  7. Execute your will. If your will is not properly executed, it will not be valid. You must sign your will at the end. At least two people must witness you signing your will.

  8. Put it in a safe place. Keep the original in a safe, yet accessible place. Let your executor know where the original copy of your last will and testament will be kept. Also give your executor the addresses of your beneficiaries, heirs and other interested parties so that they can be easily contacted when it is time to settle your affairs and distribute your assets.

  9. Make changes. It is important to regularly revisit your will in order to determine if you need to make changes. Major changes to your family may signal that you need to change your will. Such changes include marriages, births, deaths and divorces. Another reason that you might need to change some of the terms of your will is if there is a significant change to your financial situation or if you acquire or get rid of a major asset. There may also be changes in the law that may affect your will such that you might need to make revisions.

Property that Passes Outside of Will

There is property that will go to your beneficiaries outside of your will. Even if you attempt to this type of property in your will, the bequest will fail. In most cases property that passes outside of a will is property that includes a beneficiary designation as part of that property's documentation. In other cases the property is owned jointly with another person with a right of survivorship.

  • Joint Tenancy Property. Joint tenancy property is property such as real estate that is owned jointly by 2 or more people with a right of survivorship. When one owner of the property passes away, that person's interest in the property is automatically passed to the surviving owners.
  • Life Insurance. Proceeds of a life insurance policy will go to the beneficiaries you designated. An exception to this general rule is where you specifically name your estate as the beneficiary of the insurance policy. In that case the proceeds will be disposed of through your will.
  • Retirement Plans. When you join a 401(k) plan or pension plan at work, or when you open an IRA account you will be required to complete a beneficiary designation form.
  • Payable-on-Death Account. When you open a bank account or an investment account you can choose to complete a form that indicates who should receive the balance of the account upon your death. Doing so will make the bank account a payable-on-death (POD) or a transfer-on-death (TOD) account. While the money in such accounts would normally be a part of your estate that passes through your will, POD and TOD accounts pass outside of your will.

Any property that would normally pass outside of a will may end up as part of your estate that is subject to your will if the beneficiary you designated predeceases you and you did not designate a secondary beneficiary.

Consequences of Not Having a Will

The consequences of not having a will can be quite serious. If you die without a will you will have died "intestate," and your property will be distributed to your heirs according to the laws of intestate succession. This means that your estate will not be managed by an executor of your choosing and your property will not necessarily go to the loved ones of your choice. An estate administrator selected by a New York Surrogate's Court judge will be appointed to manage your estate. An estate administrator has duties similar to the duties of an executor. The administrator will have to inventory your estate, pay your estate's debts, and ultimately distribute the remaining assets in your estate to your heirs. However, the critical difference between having your estate managed by your executor and having it managed by a court appointed estate administrator is that an executor is typically a trusted friend or family member who would have your will and at least some knowledge of your family dynamics to inform him or her as to how he or she should manage your estate.

Potentially the most devastating consequence of not having a will is what might happen to your minor children. In naming a guardian for your kids the court will first look to family members. However, the court may not name the person who you would have selected. In an extreme case if no family member is qualified, willing or able to care for your children, your children could end up in foster care.

In order for your estate to be settled in the manner of your choosing and avoid the problems related to intestate succession, it is important that your will is drafted an executed in compliance with the laws of New York state. The staff at Stephen Bilkis and Associates has years of experience drafting wills for our clients as well as creating other essential estate planning documents such as trusts, living wills, powers of attorney and advance health care directives. We will advise you on the best course of action for your specific estate planning concerns. 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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