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Brooklyn Last Will and Testament

A last will and testament is a legal document that sets forth your wishes regarding the distribution of your estate's assets and the care of your minor children once you pass away. A will is an important document as it gives you sole discretion over the distribution of your assets. For example, with a will you can state who will get the jewelry, antiques and other person possessions that have been in your family for years. If you have investments, your will can direct how they should be transferred to others. If you have minor children, a will lets you state your preferences as to who should be their guardian and who should manage property you leave to them. Without a will these decisions will be left up to the court and the results could very well be different from what you would have decided. In addition, from a practical standpoint, creating a will also minimizes tensions among family members who might otherwise battle over who gets your property. If you prefer to leave all or part of your estate to charity, with a will you can direct that your assets be transferred to the charity of your choice upon your death. To make sure that your intentions are clearly stated in your will and to make sure that your will is properly executed, it is vital that you contact an experienced Brooklyn Last Will and Testament Lawyer who understands how to draft a will that will meet your needs and ensure that it is executed according to the requirements of New York law.

Why have a Last Will and Testament?

There are several reasons to have a last will and testament. One important reason is to provide for your spouse, children, relatives and others in the way you chose. In other words, a will allows you to have control over how your assets are distributed. For example, you can leave one relative your jewelry, while leaving another your house and still another your bank account. If you have a nephew who is going to need help paying for college, you can make him a beneficiary of an education trust. For your little sister who has special needs, you can leave her money in a special needs trust. And if you have relatives who you want to leave nothing, with your will you can do so and even include a statement that you are intentionally leaving those relatives out of your will. This will help minimize family squabbles as with a will you can leave clear instructions as to who gets your property and who does not.

What are the requirements for making a will?

New York has specific requirements that must be followed in order for a will to be valid. In order to make a will, you must be at least 18. In addition, you must not be mentally incapacitated or under duress. The will must be in writing and you must sign it at the end. It must also be witnessed by at least two people who are not also beneficiaries. NY EPTL § 3-2.1(a)(4). If these formal requirements are not followed, the Surrogate's Court judge may refuse to admit your will to probate, or your will may be subjected to a will contest. In either case there will be a delay in your assets being distributed to your beneficiaries.

In some cases relatives of a deceased testator challenge a will, arguing that the testamentary did not have the mental capacity to execute the will. The evidence of lack of testamentary capacity is typically the fact that the testator suffered from a psychological disorder such as dementia. However, a person who has a diagnosed psychological disorder may still have the ability to executed a will. Whether you have testamentary capacity to make a will is based on your mental state at the time your created the will. In In re the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the decedent suffered bouts of psychiatric problems around the time that he executed his will. However, there was no evidence that the testator did not have testamentary capacity at the time the will was executed. The court concluded that all that is required for there to be testamentary capacity is for the testator to experience a "lucid interval" during which time the will is executed.

In a limited circumstance, holographic or nuncupative will are permissible in New York. A holographic will is one that has been entirely handwritten by the testator and was not witnessed. NY EPTL § 3-2.2. A nuncupative will is one that is oral and witnessed by at least 2 people. Holographic and nuncupative wills will be considered valid only when created by a member of the United States armed forces or someone accompanying a member of the armed forces during a time of conflict.

What are the different types of last will and testaments?

There are a number of different types of wills that you may use, depending on your personal circumstances.

  • Self-Proving or Testamentary Will. A self-proving will, also referred to as a testamentary will, is the most common type of will. It is will that is in writing that is also executed according to the requirements of New York Estates, Powers and Trusts law meaning that it is signed by you as the testator and witnessed by at least 2 people.
  • A Pour Over will. A pour over will is used in conjunction with a trust. The will directs that any assets that are subject to the will must be distributed to or "pour over" into the trust upon the death of the testator.
  • Holographic Will. A holographic will is a will that is handwritten by the testator and is not witnesses. This type of will is generally not accepted in New York. The exception to this general rule is where the holographic will is made by a testator who is a member of the armed forces during a time of conflict, is traveling with the armed forces, or who is a mariner at sea.
  • Oral/Nuncupative Will. An oral will is one that is spoken before witnesses. It is also referred to as a nuncupative will. Like a holographic will, an oral will will not typically hold up court. However, also like a holographic will, if the oral will is made by a testator who is a member of the armed forces during a time of conflict, is traveling with the armed forces, or who is a mariner at sea, it will be considered valid.
  • Codicil. A codicil is an amendment to a will. If you already executed will and need to make changes, a codicil is a way to do so without drafting an entirely new will. However, a codicil must be executed with the same formalities as a will.
  • Living Will. While some may think that a living will is a type of will, it is not. It is a legal document in which you set forth your wishes for medical treatment in the event you become incapacitated and cannot speak for yourself.
What happens if you die without a last will and testament?

If you have a will you remain in control of what happens with your assets after you pass away. For instance, suppose you the only blood relative you have is a niece who you have not seen in years. While you have nothing against this niece, you would rather leave your sizeable estate to a couple of buddies that you have been close with since college as well as to a few key employees. You also would like to leave money to your alma mater. With a will you can do exactly that. You can leave your property to whomever you choose.

Without a will your assets will not necessarily go to whom you want them to go. Your assets will be distributed to your heirs according to New York intestacy rules. NY EPTL § 4-1.1. Under these rules your estate would not go to your buddies, your employees or to your alma mater. Your entire estate would likely go to your only blood relative: your niece who you have not seen for years.

New York intestate succession rules require that your surviving spouse receive your entire estate, unless you also have children. In that case, your spouse would inherit the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your children will share in 100% of your estate if you do not have a surviving spouse. If you have no surviving spouse or surviving children, then your statutory heirs would be your parents, grandparents or other blood relatives. NY EPTL § 4-1.1

Another problem with not having a will is that if you pass away and leave minor children the state will decide who will be your children's guardian. With a will you can state your preference for a guardian after discussing with this person. Otherwise, the court will make a determination as to which blood relative should serve as the guardian. The court's choice may not be the person whom you would choose.

What is Probate?

Before your assets can be distributed to the beneficiaries you designate in you will, your will must go through probate. It is typically initiated by the testator's executor, when he or she presents your will to the Surrogate's Court. The court will review the will to ensure that it was executed in compliance with New York law. If the court determines that will is valid, then the Surrogate's Court judge will issue the executor "letters of administration," officially appointing the executor and giving him or her full authority to manage your estate.

Your executor will then go about the business of managing your estate. Estate management includes gathering and inventorying your assets, paying your final debts, resolving claims, and ultimately distributing your property to your beneficiaries.

A last will and testament is but one document that is part of a comprehensive estate plan. Your estate plan may also include a trust, durable power of attorney and an asset protection plan. The staff at Stephen Bilkis & Associates, PLLC has years of experience working closely with clients in Brooklyn to development estate plans to fit their personal and financial goals. To learn more about estate planning, contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.

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