Bronx Will and Testament

A will and testament is one the most important estate planning documents. A will and testament is used primarily to provide instructions as to how your estate is to be distributed to your beneficiaries after you pass away. A will provides a great deal of flexibility so that you can be very specific as to which of your loved ones gets each of your assts. Or you can leave your entire estate to one person such as your spouse or to your children. In addition, you can use a will to nominate who your want to take care of your children in the event that you pass away while your children as still minors and their other parent is also not available to take care of them. The consequences of not having a will can be quite devastating. Without a will not only is it less likely that your property will go to who you want it to, there is also a possibility that your property will go someone who do not want to receive it. If you are contemplating making a will, contact an experienced Bronx Will and Testament Lawyer who will explain to you how a will can help meet your estate planning goals and the legal ramifications of not having a will.

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What is a Will and Testament?

A will and testament, commonly called a will, is a legal document that is essential to your estate plan and accomplishes certain estate planning goals that no other document can. With a will you can:

  • State what happens to your property upon your death
  • State your preference for who should be the guardian of your minor children
  • Name an executor who will manage your estate
  • Detail your preferences for your funeral and burial

Depending on your goals, there are different types of wills that you can make, including wills with special features. For example, if you and another person such as your spouse would like to memorialize an arrangement wherein each of you leaves the other your entire estate, reciprocal wills and joints wills are options. With reciprocal wills you and the other person create 2 separate wills that provide that each of you leave the bulk of your estate to each other. With a joint will you and the other person create a single will that provides that each person would get the survivor's estate. While such wills are commonly made by spouses, they can be made by anyone who wishes to plan in this manner.

If you would like your property to be transferred to a trust upon your death, a pour over will is an option to explore. A pour over will has a clause that provides that any assets that upon your death any assets that remain your probate estate will automatically transfer to a trust that you created during your lifetime. Once in the trust the property will be distributed to the trust's beneficiaries according to the terms of the trust.

Regardless of the type of will you decide to make, if after executing it you need to change it, you can write a completely new will, or you can change it using a codicil. For example, you may want to amend your will to leave property to a grandchild born after the original will was executed. Or, you may need to make changes to your will after your financial situation changes or in response to changes to federal or state law. A simple way to do so is by creating a codicil. A codicil is a supplement to your will. It must be executed in the same manner as a will in order for it to be valid. However, if the changes to your will are complicated or substantial it may be a good idea to execute a completely new will.

However, there are exceptions to the general rule that wills must follow certain formalities to be value. New York law provides that holographic wills and oral wills, when made under certain circumstances will be valid despite not being created and executed according to the normal legal requirements. A holographic will is one that is handwritten by the testator and is not witnessed. Because an oral will is not written, but spoken, an oral will is not signed. However, it is witnessed by at least 2 people. Holographic and oral wills are only legally binding if they are made by a member of the U.S. armed forces during a time of armed conflict, a person accompanying the armed forces during a time of conflict, or by a mariner at sea. NY EPTL § 3-2.2. Holographic and oral wills expire one year following discharge from the armed forces. If made by a mariner at sea, such a will expires after 3 years.

What happens if you die without a will?

If you pass away without leaving a valid will the New York Surrogate's Court will appoint an estate administrator to wind up your estate and New York law will determine how your assets will be distributed. Under New York laws of intestate succession your primary heirs are your spouse and your children. However, if you pass away without a spouse or children, then the law states that your property will go to other blood relatives in a specific order of priority. NY EPTL § 4-1.1

  • Survived by spouse. If you are survived by a spouse and no children, your spouse will receive 100% of your property.
  • Survived by spouse and children. If you are survived by both a spouse and children, then all share in your estate, with your spouse getting a greater share then your children. Your spouse will get the first $50,000 of your estate, plus 50% of the balance. Your children will share equally in the remaining 50% of your estate.
  • Survived by children. If you are survived by children but no spouse, then they will all share in your estate equally. Your grandchildren (whose parent is your child) will inherit the share that would have been your child's share if that child had not predeceased you.
  • Survived by parents. If you are survived by one or both of your parents, but not by a spouse, children, or grandchildren, then your parents will share equally in 100% of your property.
  • Survived by brothers and sisters. If you are survived by brothers and sisters (whole or half blood) but not by a spouse, children, grandchildren or parents, then your brothers and sisters will share in 100% of your estate.
  • Survived by grandparents. If you are survived by one or more of your grandparents but not by a spouse, children, grandchildren, parents, or siblings then your entire estate goes to your grandparents. Half would go to your paternal grandparents and the other half to your maternal grandparents.
  • Survived by aunts and uncles. In the case where your estate would have gone to your grandparents, if they do not survive you, their share would go to your aunts and uncles.

New York intestacy rules do not allow for friends or organizations to be heirs. Thus, the only way to leave property to a person who is not a blood relative (other than a spouse), or to an institution or organization is to make a will.

Another consequence of not having a will is that if pass away leaving minor children and the other parent is not available to care for them, in the absence of a will specifying who you want to raise your minor children, the court will choose a guardian for you. Courts look first to family members to name as guardian. If no family member is qualified, willing or able, then the court may place the children into foster care. Even if the court places your children with a family member, the court's choice may not be a choice you would have made. For example, the court may choose a guardian who does not share the same child-rearing values as you, or someone who your children do not know particularly well.

What makes a will valid?

An important point to keep in mind is that if you make a will in a manner that is not in compliance with New York law, then the New York Surrogate's Court may refuse to admit it to probate. At a minimum, probate will be delayed. If this happens, then the result will be the same as if you did not have a will: your estate will fall into intestacy.

In order for a will to be valid in New York it must be in writing and signed by you at the end. It is important that you sign it at the very end; otherwise, the court may choose to ignore anything that is after your signature. For example, if you left something out and simply added a bequest at the end of the will after your signature, the court may not view that bequest as valid.

If you are physically incapacitated such that you are unable to sign, it is permissible for someone to assist you in signing the will as long as your otherwise have testamentary capacity. For example, a "guiding hand" is permitted. If a guiding hand is used, you must express the intent to sign the will. If you are unable to sign the will even with the help of a guiding hand, the law allows someone to sign the will for you. This is referred to as a proxy signature. The proxy signature must be done in the presence of the testator and the testator must have testamentary capacity. For example, a proxy signature will not be valid if you are conscious at the time of the proxy signature. The person signing for you must also sign his or her name. This person cannot also be a witness.

Another requirement for a will to be valid in New York is that at least two witnesses must witness you or your proxy signing the will, and must attest that they saw the signing or that you advised them that you did indeed sign the will. NY EPTL § 3-2.1(a)(4). The two witnesses are not required to sign the will at the same time. However, the law requires that they sign within 30 days of each other. In New York, there is a rebuttable presumption that a will was signed by each witness within a 30 day period. However, this presumption can be challenged in a will contest. Should there be a challenge to the validity of the will the witnesses may be called to testify regarding the circumstances of the execution of the will. One way to safeguard your will from a successful challenge is to make it "self-proving." A will is self-proving if it includes an affidavit from the 2 witnesses attesting to the facts surrounding the signing of the will. N.Y. SCP. LAW § 1406. Because of such an affidavit, unless someone objects the Surrogate's Court judge will allow the will to be admitted to probate without the testimony of witnesses or other evidence.

The statute does not mention specific requirements for a person to be a witness. However, ideally the witnesses are not also beneficiaries named in the will, as witnesses are not permitted to also receive gifts in the will. NY EPTL § 3-3.2(a)(1). In other words, an "interested" witness' bequest will fail. The exception to this is if there is a third disinterested witness to the signing of the will.

In order for your will to be valid, you must have testamentary capacity. Testamentary capacity means that you were at least 18 years old and you were not mentally incapacitated. In the case of In the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the court described a 3 part test for whether or not a testator had testamentary capacity. At the time the will was executed the testator must have understood the nature and consequences of executing a will, the testator must have understood what his or her estate included, and the testator must understand who his or her family members were. It is not relevant that at the time of the testator's death or at some other time the testator was mentally incapacitated.

Undue influence means that someone physically or mentally forced you to execute that you would not have otherwise executed. Undue influence can be shown if the person accused of exerting undue influence had motive, opportunity and completed actual acts of undue influence. If the person merely requested you to leave a gift for him or her in your will, that is not enough for a court to conclude that there was undue influence.

What happens with my will when I die?

After your death someone will take your will to the Surrogate's Court in the county of your death and submit it along with a petition asking the court to admit the will to probate. The person submitting your will and petition would be your executor, a beneficiary, an heir or some other interested party. Once the judge admits your will to probate, your executor will have the legal authority to manage your estate and distribute your assets. There are several steps that must be completed before your estate can be closed and your assets distributed. These steps include collecting and appraising your property, paying debts owed by your estate, and resolving any claims against your restate. The final step is for the executor to transfer legal title to your property to beneficiaries according to the instructions you provided in your will. The probate process will take at least 9 months and could take more than a year. Factors which may delay probate and distribution of estate assets include estate litigation, estate tax issues, and missing heirs.

A will and testament is essential to any estate plan. However, there are other documents that are also important for a complete estate plan. In order to meet your planning goals and provide for both your future needs and the needs of your family, you may need additional estate planning documents such as a trust, living will and health care proxy. To learn more about estate planning , contact Stephen Bilkis and Associates. We will help you develop an overall estate plan that reflects your individual goals 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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