Making a will is one of the most important things you can do to ensure the future of those you care most about. With a will you can make sure that those you want to receive a part of your estate will receive it. Otherwise, you lose control over what happens to your property upon your death. You might feel that there is no need to make a will now. After all you are still quite young and in good health. However, every adult should make a will. It is even more important to have a will if you have children. With a will not only will you be able to set forth who gets your property, you will also be able to state your preference as to who should raise your children if you pass away while they are still young. If you pass away without a will the fate of your assets and of your children will be in the hands of the state of New York. That is not the result that you would want. To help you understand the importance of having a will and how having a will can help you attain your personal goals, contact an experienced Bronx Will Lawyer who will be able to educate you not only about wills, but on how to develop a set of comprehensive estate planning tools.
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The main advantage of making a will is that a will allows you to control what will happen to your property after your death. You can decide to leave your property to family members, or you can leave it to close friends. Suppose, for example, that you want to leave your estate to your long-time significant other who you never married. With a will you can easily do so. Without a will there is a good chance that your significant other would get none of your property. In addition, if you pass away leaving minor children, a will allows you to decide who will take care of them if neither you nor the other parent is able to.
If you are still not convinced that you need to make a will, consider the consequences of not making a will. Instead of the people who you want to receive your property receiving it, people who you do not like or perhaps do not even know may receive your property. Under New York's laws of intestate succession, only blood relatives in a specific order for priority will be able to receive your property. This could mean that your mean aunt who you never got along with will end up receiving your property. Or your niece who you have not seen for 2 decades will be pleasantly surprised to learn that she just inherited your house. This is a surprise that you, on the other hand, would want no part of. Another unintended consequence of you not leaving a will is that your minor children may end up being raised by that same mean aunt that you have tried to avoid. If you do not name a guardian in your will the court will name a guardian. The court will first seek a relative who is qualified and willing to serve. If no qualified relative is available, the court may appoint a public guardian.Steps to Making a Will
Making a will involves several steps from figuring out what is part of your estate to executing the final document.
Make a list of your assets. Start off the will making process by making a list of your assets. Some people underestimate the size of their estates before taking the time to write down everything they own. In fact, some do not think they really have an estate. You probably do. Your assets include cash, checking accounts, savings accounts, investments, furniture and home accessories, jewelry, artwork, antiques, collectibles, clothing, real estate including your primary residence, vacation property, and investment property, insurance policies and annuities, and retirement plans such as pension plans and 401(k) plans. Your estate will also include a small business you own or your interest in a business you own with others. Money that is owed to you as well as money held in an online account such as PayPal is also part of your estate.
As part of creating a will you should list all of your property. Beware, however, that not all of your assets will go through probate. For example, retirement plans and proceeds of life insurance will go directly to designated beneficiaries without having to go through probate. The reason that you should include nonprobate property in your list of assets for will making purposes is that such assets may affect what you do with probate assets. For example, if your nephew is the designated beneficiary of a $50,000 life insurance policy, then you may decide to leave you niece $50,000 cash in your will and leave your nephew nothing in your will.
Also make a list of your debts. Before your beneficiaries receive distributions from your assets, your debts will be paid. The amount of your debt will affect the amount of property that is available to distribute to your beneficiaries.
Protect the children. If you have minor children you have to decide who will take care of them in the event that neither you nor the other parent survives them. While this may be unlikely, it is good to make arrangements just in case. This involves naming your choice of a personal guardian who will raise your children, and setting up a guardian over your children's estate who will manage the money and property you leave to them. You can name one person to fill both roles and different people to fill the roles. In deciding on who should be your children's person guardian, some considerations include the potential guardian's age, maturity, living situation, parenting style, religious, social education and moral values, financial situation, and health. In selecting a guardian for your children's estate you should select someone who is mature, responsible, and who has proven financial knowledge and money-management skills.
While the court is not required to place your children with the guardian of your choice, the court will give great deference to your wishes.
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 or back-up guardians in the event that your first choices are unable to serve.
List your beneficiaries. Decide who will get your property. Make a list of your possible heirs, even if you have not yet decided to leave something to everyone on your list. Your last make include your spouse, children, stepchildren, grand children, parents, siblings, aunts, uncles, nieces, nephews, and cousins. You list may also include non-relatives such as good friends, long-time employees, and your business partner. You may also choose to include charities, religions institutions and educational institutions such as the private school or college you attended.
List your bequests. Consider the needs of those you plan to leave gifts. This will help you determine not only what or how to leave each beneficiary, but also any restrictions on the gift. For example, if you want to leave your niece money for college, it may be a good idea to leave the money in a trust with your niece as the beneficiary. You can specify in the trust document that the funds are only be used for her college education tuition and expenses. If your nephew is disabled and has special needs, leaving his bequest in a special needs trust will help ensure he is properly cared for for the rest of her life. You can even leave money for the care of your pet Schnauzer, Sparky, to makes sure he is cared for after you pass away.
Also consider naming alternate beneficiaries. For example, if you leave your aunt your art collection, but she passes away before you do, who do you want to get the collection?
Finally, it is important to include a residuary clause in your will. A residuary clause leaves instructions as to what should happen with property remaining in the estate after all bequests. For example, suppose your bequests were very specific in that you listed the property that each beneficiary would receive. However, you did not mention a vacation home you purchased 5 years after you executed your will. What happens to that asset? Without a residuary clause, that home will go to your heirs according to New York's laws of intestate succession. With a residuary clause, it will go to the beneficiary named in the residuary clause.
Choose an executor. The person who you name as the executor of your estate will manage your estate during probate and eventually distribute your assets to your beneficiaries. In addition to distributing your assets, managing your estate involves making sure any taxes, debts, and other obligations are paid. You should take great care in naming your executor. While much of what the executor will do to settle your estate is defined by New York law, your executor will have some discretion as to how to carry out his or her duties. Naturally, your executor should be someone you trust implicitly and should also be mature and responsible. Spouses are often named as the executor. People also often select adult children, siblings, and close friends.
Drafting your will. Once you have a good idea of what you want to include in your will or what your estate planning goals are, it is advisable to work closely with an experienced practitioner to draft your will.
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 your signing your will. In addition, you could take the extra step to make your will "self-proving." This involves having your 2 witnesses signing an affidavit that describes the circumstances of your signing the will. The advantage of making your will self-proving is that a judge will consider the will valid without having to hear the testimony of the witnesses on other evidence. This will reduce the likelihood that the validity of your will will be challenged.
Give a copy to your executor. Keep the original in a safe, yet accessible place and let your executor know its location. Also make sure that your executor has the addresses of your beneficiaries, heirs and other interested parties so that they can be contacted when it is time to settle your affairs and distribute your assets. If your executor has a difficult time locating your beneficiaries, the distribution of assets may be delayed.
Reviewing your will. It is important that you periodically review and update your will. Families and relationships inevitably change over time. For instance, one of your beneficiaries may pass away. Grandchildren may be born. You may get married or divorced. You may have a falling out with a family member. You may have an experience that moves your support a particular charity. Another reason to review 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.
Once you pass away, the New York Surrogate's Court will oversee the winding up of your estate through a process called probate. The Surrogate's Court judge will determine whether or not your will is valid. The judge will then oversee the administration of your estate by your executor. Probate begins when your executor or other interested party files your will along with a petition for probate with the Surrogate's Court. The Surrogate's Court judge will review the will to determine its validity. Interested parties such as beneficiaries, heirs and creditors will also be notified that your estate is about to be probated. At this stage it is possible that someone may challenge the validity of your will in an attempt to prevent it from being probated. The judge will have to resolve the will contest. If the judge finds that your will is valid then he or she will issue letters testamentary to your executor. Your executor will then have the legal authority to go about the business of managing your estate.
Your executor will first collect, inventory and appraise your assets. Then the executor will pay estate debts such as your funeral costs, unpaid bills owed to your creditors, and taxes. During probate there may arise disputes that could cause estate litigation. Such disputes may involve creditors seeking payment on outstanding claims, unhappy beneficiaries, or issues related to how the executor has managed the estate. Any disputes most be resolved before the estate can be closed. It is up to the Surrogate's Court judge to resolve claims brought against the estate.Once debts are paid and claims are resolved, the executor will submit a final accounting to the court and request permission to close the estate and distribute your assets to the beneficiaries named in your will.
Probate will take at least 9 months. It commonly takes 2 months after the Petition for Probate is submitted for the judge to issue the letters testamentary. After that there is a waiting period of 7 months so that any claimants can file claims against the estate. Probate will be extended if there is an estate tax issue or if there is estate litigation.
During the entire time that your executor is managing your estate the Surrogate's Court is overseeing the process. The Surrogate's Court supervises the actions of the executor, settles disputes involving your estate, oversees the payment of debts owed by your estate, and authorizes the distribution of assets.No Will or Invalid Will
If you pass away without a will or if the Surrogate's Court finds that your will is invalid, your estate will not go to beneficiaries of you choosing but will go to your heirs as identified by the state of New York based on the laws of intestate succession as follows:
If you are survived by a spouse and you do not also have surviving children, your surviving spouse will inherit all of your property. If you are survived by both a spouse and children, then all share in your estate, with your spouse receiving a greater share than your children. However, if any of your children predeceases you and is the parent of your grandchildren, then your grandchildren will inherit your deceased child's share. If you are survived by children but not by a spouse, then they will all share in your estate equally. 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 estate. If you are survived by siblings but not by a spouse, children, grandchildren, or parents, then your siblings will share in 100% of your estate. After that the law requires that your estate go to grandparents, aunts, uncles and cousins.
The process of probating a will is often lengthy- at least 9 months. In the meantime, your loved ones must wait to receive the assets you left them. This may cause the financial hardship. In addition to having a will, consult an estate planning attorney about the benefits of also having a trust that will allow a speedier distribution of assets. To learn more about writing a will, trust, and other estate planning tools 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.