Brooklyn Will Drafting Lawyer

Writing a will may seem as easy as writing down who should get your property after you pass away. However, it is not quite that simple. Your estate planning goals, your personal circumstances, you financial condition, as well as your family dynamics all dictate what type of will you need and how it should be drafted. If you do not have a will that has been properly drafted and executed your property will not necessarily go to the people you want to receive it. Instead, it will go to your heirs according to New York law. Furthermore, complex financial situations, intricate or atypical family relationships will require complex estate planning and will drafting to ensure that your financial and family goals are met. As you contemplate drafting your will it is would be wise to consult an experienced Brooklyn Will Drafting Lawyer who will work closely with you to make sure that your will is drafted in a manner that reflects not only your estate planning goals, but also that is compliant with New York estate law.

Types of Wills

Depending on your circumstances, there are several different types of wills. For example, if you and your spouse or significant other would like to provide that you will leave each other the bulk of your estates, then you should consider a reciprocal will or joint wills. If you are in the military or are a mariner at sea, and are in a situation where you cannot make a will with the normal formalities, a holographic will or a nuncupative will be considered valid. Neither a nuncupative will nor a holographic will are drafted or executed according to standard New York estate law requirements.

A holographic is a will that is handwritten by the testator and is not witnessed. A nuncupative will is a will that is oral and is witnessed by at least 2 people. Holographic and nuncupative wills are not valid under New York law unless made by a member of the armed forces or someone accompanying a member of the armed forces during a conflict, or by a mariner at sea. NY EPTL § 3-2.2. However, such wills are only temporary and lose legal effect upon the occurrence of certain circumstances.

If you need to change your will after it has been executed, then you can either amend it with a codicil, or if the changes are substantial or complex, you can draft an entirely new will.

Steps in the Will Drafting Process

1. Your Property. The first step in the will drafting process is to make a list of your assets. Assets include anything you own, including property that you own jointly with others. Assets can include real estate, bank accounts, stock and bonds, jewelry, artwork, collectibles, vehicles, retirement accounts, insurance policies, investments, interests in businesses, property held in trust, and personal such as furniture and clothing.

However, not all property will pass to your beneficiaries through your will. Property that cannot be distributed by your will includes:

  • Property in a trust
  • Accountants that already have beneficiaries such as insurance policies, pension plans and pay on death (POD) bank accounts.
  • Property held in joint tenancy

2. Your Beneficiaries. Any person or entity that you name in your will to receive property is called a beneficiary. A beneficiary may be a person or an entity such as a non-profit organization. There are four main categories of beneficiaries: primary beneficiaries, alternate beneficiaries, residuary beneficiaries, and alternate residuary beneficiaries. A primary beneficiary is the person or entity who is your first choice to receive your assets. You can have one primary beneficiary who is to receive all of your property or you can have multiple primary beneficiaries.

An alternate beneficiary is the person or entity you chose to receive property in the event that a primary beneficiary predeceases you. There are even instances in which the primary beneficiary refuses to accept property left in a will. If this happens, the gift will go to the alternate beneficiary.

A residuary beneficiary is the person or entity who will inherit the remainder of your estate that you do not specifically mention in your will. In other words, if after all of your named beneficiaries are given their gifts there is still property in your estate that remaining property is part of your residuary estate and will go to your residuary beneficiary. You can name one residuary beneficiary or more than one.

Similar to the role of an alternate beneficiary, the alternate residuary beneficiary would take the place of the residuary beneficiary should the residuary beneficiary predecease you.

3. Guardians for minor children. Another important issue that you can address in your will is who will take care of your minor children in the event of your death. Of course, if the other parent is still living, then that parent would raise the children absent a legality that would prevent that. Otherwise, there may be family members who will assume that they will be your children's guardian. However, in your will you can clearly nominate the person who you want to be your kids' guardian based on factors that are important to you. For example, factors to consider include:

  • Age of the guardian. The guardian must be at least 18 years old. You should consider appointing a guardian who is sufficiently older than your children to establish an effective parental relationship. However, you may want to appoint someone who is too old as they may not have the physical ability to raise active young children.
  • Responsible. Make sure the prospective guardian is responsible enough to raise your children. The children's guardian will have to make everyday decisions about your children's life including their health and education. While your cousin, for example, may be your best friend and fun to hang out with, he or she may not necessarily be the right person to assume the responsibility of parenthood.
  • Physical capabilities. Raising young children takes stamina and energy. Consider the health of the prospective guardian. Someone who is young, but has health issues may not be suitable to raise active young children.
  • Time Constraints. Someone who already has many commitments may not be able to devote a lot of time focusing on your children. For example, someone who has a job that requires a lot of travel or long work hours may not be the right person to raise your children.
  • Other children. Selecting a guardian who has other children close in age to your kids may be a good idea as that person understands what it takes to raise children. In addition, it may prove helpful for there to be other kids around to offer comfort and distraction for your children.
  • Financial considerations. If your prospective guardian is struggling financially, he or she may not be able to raise your kids as well, unless you also leave a trust for your kids with enough assets to cover expenses related to their care.
  • Parenting style considerations. Select a guardian who parenting styles and philosophies align with yours. For example, consider religious beliefs and customs. If you and your family attend worship service each week, then you may want to nominate someone who shares similar beliefs and habits.
  • Location. Even if the guardian is perfect in all other ways, if the guardian lives far away from you, consider whether you would want your children raised in a different area.

4. Your Executor. In your will you will name the person who will be the executor of your estate. This person must be someone who is responsible and trustworthy as he or she will be given a significant amount of responsibility. Your executor will be responsible for managing your estate after your death. Responsibilities of your executor will include:

  • Gathering and inventorying your property. This may include the contents of your home, other real estate, financial accounts, and other types of property.
  • Managing your property until it is distributed to your beneficiaries. This may include taking care of your the bills related to your house such as paying the mortgage and utilities, as well as managing your investments.
  • Hiring professions such as an attorney or accountant. This may be required if your estate is substantial or complicated.
  • Paying estate debts and taxes. This would include filing your final tax return and paying any taxed owed as well as paying your outstanding creditors.
  • Distributing your assets to your beneficiaries. This is the final step. It can only be done after all other business of your estate has been taken care of such as paying your creditors.

6. Drafting the Will. In order to ensure that all of your estate planning goals are met and to ensure that your will meets the legal requirements of New York law, you should have it drafted by someone with experience.

7. Execute your will. New York estate law requires that in order for your will to be valid you must sign it at the end and at least two witnesses must also sign it. NY EPTL § 3-2.1(a). In addition, you must have testamentary capacity, meaning that you must be at least 18 years old and you must be of "sound mind." NY EPTL § 3-1.1. This means that at the time of execution you must not suffer from a condition that renders you mentally incapable of understanding that you are executing your will and what that means.

8. Store it and revisit it. Store your will line in a safe, yet accessible place. Let your executor know where it is. Review your will regularly and make changes if necessary. Life changes such a marriage, death, or birth as well as changes in your finances may signal that you need to change some of the terms of your will. For example, if you purchase real estate, you may need to change your will to state who is to receive that property upon your death.

Consequences of Not Having a Will

If you die without leaving a will you will have died intestate. Under New York law that means that only your surviving spouse and specific blood relatives can inherit property from your estate. Such relatives are your legal heirs. In other words, your property will not go beneficiaries you identify but to your heirs as defined by the law. The charity or school that you wanted to support with a gift will not be able to inherit anything from your estate under New York's intestacy rules. Furthermore, if you wanted to take care of both your parents and your spouse by leaving each 50% of your estate, under the law if you have no children then your spouse would get 100% of your estate and your parents would get nothing. While the law does allow parents, grandparents, great-grandparents, siblings and other blood relatives to be statutory heirs, there is a specific priority. Spouses are "first in line," while parents can only inherit if there is no surviving spouse or children. Friends, most non-blood relatives, and institutions cannot inherit at all, even if you do not have any surviving blood relatives. A properly drafted and properly executed last will and testament will ensure that your estate avoids the pitfalls associated with intestacy.

Making a will as well as other estate planning documents is an important process that will affect your personal and financial future, as well as those of your family members. It is important to make sure that it is done correctly. The staff at Stephen Bilkis & Associates, PLLC is experienced in drafting wills, trusts, powers of attorney as well as working with clients on all other aspects of estate planning. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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