Bronx Will Drafting
Many of us never get around to writing a will because it is unpleasant to contemplate death. The consequences of not having a will, however, are also quite unpleasant. With a will you leave clear instructions about how your assets are to be distributed upon your death. If you do not leave a valid will, then the State of New York will essentially write a will for you. The state's last will and testament will not be designed to fit your particular needs, goals and circumstances. It is designed to fit everybody who does not have a will. This means that instead of the relatives you are most close to or your best friend receiving your property according to your wishes, a relative you barely know may receive a share of your estate. With a detailed, carefully written will you can avoid this result. Because of the importance of making sure that your will is drafted in a way that your estate planning goals will be met and to ensure that it is also in compliance with New York law, it is important to work with an experienced Bronx Will Drafting Lawyer who will help you document your wishes in a last will and testament that will withstand the scrutiny of the New York Surrogate's Court when it is probated.
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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, the size of your estate, and your personal situation.
Pour Over Will. A pour over will is a common type of last will and testament for those who also have a trust as part of their estate plan. With a pour over will, upon your death any property that is in your estate that must pass through your will automatically is transferred to your trust. The trustee can then distribute the property to the trust's beneficiaries according to the terms of the trust.
Example pour over trust language: "All of the property that I own at my death, or which shall become payable to my estate or my personal representatives, and any property that I have power to dispose of under my will shall be distributed to the Trustee of the Donald Family Trust to be distributed as provided under the Trust."
Reciprocal Wills. Reciprocal wills are 2 wills made by 2 testators that have similar bequests. Each testator leaves the other testator all of or the bulk of his or her estate. Reciprocal wills are commonly made by spouses or significant others, but can be made by anyone who feels a need to coordinate their estate planning such as business partners or siblings.
For example, Jill and Kevin own a house, two vehicles, and have a small amount of cash in a savings account. Their combined assets total $350,000. They have one child, Cindy, who is 9. Jill and Kevin each prepare a will leaving all his or her property to the other. If they pass away at the same time, Cindy will receive all of their assets. Jill's best friend, Carol, will be Cindy's guardian and will also manage the property that Cindy would inherit until Cindy turns 18.
Joint Will. A joint will accomplishes the same goal as reciprocal wills. It is a single will that is created by two people and provides that that each person would get the survivor's estate. In addition, the joint testators also come to an agreement as to what should happen to common property after the passing of the first testator.
Holographic Will. A holographic will is handwritten by the testator, but is not witnessed. Under most circumstances a holographic will would be invalid in New York because it would not have been executed according to the requirements of New York law. However, under a few circumstances a holographic last will and testament will be admitted to probate in New York. If a holographic will is made by a member of the armed forces during a time of declared or undeclared war, by someone who is accompanying the armed forces, or by someone who is a mariner at sea, it will be deemed valid. NY EPTL § 3-2.2. Such a will would become invalid a year after the member of the armed forces is discharged, or 3 years after made by a mariner at sea.
Nuncupative Will. A nuncupative will is also not executed with the formalities typically required by New York law. A nuncupative will is a spoken; thus ,it is not signed. However it is witnessed by at least 2 people. It is also comparable to a holographic will in that if a nuncupative will is made by a member of the armed forces during a time of war, by someone who is accompanying the armed forces, or by someone who is a mariner at sea, it will be deemed valid. NY EPTL § 3-2.2.
Codicil. If you need to change your will, you can do so using a codicil. A codicil is an amendment to a will. If you need to make relatively minor, uncomplicated changes then executing a completely new will may be unnecessary. However, if the changes that you need made are significant it may be a good idea to make a new will. A codicil, however, must be executed with the same formalities as a will.
1. Decide which property you want to include in your will. The first step in the drafting of your will is to list your major assets such as your house, other real estate, checking and savings accounts, investment accounts, artwork, other collectibles, jewelry, and vehicles. Some assets of substantial value will pass to your beneficiaries outside of your will. Examples of such property includes proceeds of life insurance policies, banking and investment accounts that have a payable on death or transfer on death payee, retirement plans such as 401(k) plans, pension plans, and IRAs, property transferred into a trust, and co-owned property with a right of survivorship.
2. Decide who you would like to receive your property. Write down who you want to get each asset. Some testators leave their entire estate to their spouses. Others split it between their spouses and children. One advantage of a will is that you can leave your property to whomever you want to. On the other hand, if you do not leave a will you have no control over who gets your property. In addition, with a will you can also leave property to organizations such as a charity, a religious organization or an educational institution.
3. Decide who you would like to name as the executor of your estate. The executor of your estate is the person who is responsible for administering your estate and ensuring that your wishes are carried out. The responsibilities of your executor include notifying your creditors and government agencies of your death, inventorying the estate, having the estate appraised, setting up an estate bank account, maintaining estate property until it is distributed, paying estate debts, paying estate taxes, resolving any claims against the estate, and distributing your estate to your named beneficiaries.
4. Choose a guardian for your minor children. If you have minor children when you pass away and the other parent is not available to care for them, in your will you can appoint another adult to rise them. This person is referred to as your children's "personal guardian." The guardian will be responsible for raising your children until they become legal adults. When considering who you want to raise your children if you cannot, there are several questions to think about:
- Does the potential guardian love your children?
- Is the potential guardian responsible and up to the challenge of raising your children?
- Is the potential guardian at least 18 years old?
- Does this person live far away so that your children would have to move away from their friends and family members ?
- What is the potential guardian's living situation? Does he or she live in a house with adequate space?
- Is the potential guardian married or in a stable relationship?
- Will your children still have easy access to their other relatives?
- Are the potential guardian's religious and moral beliefs consistent with yours?
- Is the potential guardian's parenting style consistent with your parenting style?
- Is the potential guardian healthy enough and fit enough to care for young children?
- Can the potential guardian afford to raise your kids?
- Does the potential guardian already have children? If so, do your kids get along with them?
5. Choose a guardian for your minor children's property. The guardian of your children is referred to as the guardian of the person, while the guardian of your children' property is referred to as the guardian of the estate. If you leave assets to your minor children you will need to name someone to manage their assets until they are adults. Consider setting up a trust. Then name a responsible adult to be the trustee. This person could be the same person that you name as your children's personal guardian, or it could be a if different person.
6. Draft your will. In order for your will to do what you want it to do it cannot be oral or via video. It must be written carefully and clearly. Otherwise, provisions in your will may be open to multiple interpretation, exposing your will to a will contest or estate litigation.
7. Execute your will. Furthermore, in order for a will to be valid, New York law requires that you sign the will at the end in the presence of at least two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4). The witnesses must be present when you sign the will. If not, you must acknowledge to each witness that you did indeed sign the will. The witnesses must be adults and should not be anyone you name as a beneficiary in your will. If a witness is also a beneficiary the witness will not be permitted to receive the gift you left him or her in the will. If you fail to properly execute your last will and testament, the Surrogate's Court judge may not allow your will to be probated, or they may be a will contest.
In addition, in order for your will to be valid you must have testamentary capacity at the time you made it, meaning that you must be at least 18 years old and you must be of "sound mind and memory." This means that when you made your will you must not have suffered from a condition that renders you mentally incapable of understanding what it means for you, your estate and your family that you are executing that particular will.
In order to make it less likely that a last will and testament will be successfully challenged you can 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. If a will is self-proving, the Surrogate's Court judge does not need to go examine the 2 witnesses or review other evidence to determine the validity of the will.
8. Store it and revisit it. Store your will in a safe, yet accessible place. Give your executor a copy of it. Review your will regularly to make sure that it is consistent with your current wishes. As your life evolves, so should your will. For example, major life changes such as marriage, divorce, death, or birth as well as changes in your finances may signal that you need to change some of the terms of your will. In addition, federal and state laws that effect estate planning change. You should check your will to make sure changes to the law have not impacted any of the provisions of your will.
If you need to change your will you can re-write your will completely, or you can amend it using a codicil. If you need to make major changes to your will, it may be a good idea to execute a new will. However, if the changes are relatively minor, you can simply amend your will using a codicil. Keep in mind that a codicil must be executed in the same manner that a will must be executed.Effect of a Poorly Drafted Will
A poorly drafted will can have unintended, even devastating results. For example, if you inadvertently leave out the name of a beneficiary, someone who you really wanted to have your property will not get it. Unclear or poorly written provisions in your will could also lead to lengthy, expensive estate litigation and fights among your beneficiaries or other interested parties.
If your will is not properly executed the Surrogate's Court may determine that it cannot be probated. If that happens, then your estate will be treated as if you did not have a will at all. Your assets will not go to those you intended them to go to, but to people that the state determines should get them based on the laws of intestate succession. The beneficiaries of your last will and testament will be family members such as your spouse, children, parents, and siblings. However, if you wanted to leave a non-relative a gift such as your best friend or an employee, you must have a valid will. Similarly, if you want to leave an organization a donation, you must have a valid will.
Regardless of your financial situation a well written will is important to have. No will or a will that is poorly written may cause your family members financial distress and emotional pain. To ensure that your last will and testament is properly drafted and executed, it is important for you to work with someone with experience. The staff at Stephen Bilkis and Associates is experienced in will drafting and have worked extensively in the New York Surrogate's Court. We will help you make the process as painless as possible. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.