Estate, Powers and Trusts, § 3-3.1: What a Testamentary Disposition Includes
A will is the most common method for individuals to pass property to specific beneficiaries. A will is a legally enforceable document in which the person who drafted the will, referred to as the testator, states his (or her) wishes as to what should happen to his property once he passes away. With a will, you can leave property from your estate to relatives and friends. You can also leave property to institutions that are important to you such as chartable, religious, or educational organizations. Wills are flexible. You can make specific bequests. For example, you can leave specific pieces of real estate to specific family members, while leaving the money in your financial accounts to a charitable organization. You can also leave your entire estate to one more persons without listing the specifics about what property you are leaving. To learn more about the requirements about New York law related to testamentary dispositions, contact an experienced New York will attorney who will explain your options for leaving your property to your loved ones.What a testamentary disposition includes
If a testator states in his will that he is leaving all his property to a beneficiary, that means that all the property that is in his probate estate at the time that he passed away would go to that beneficiary.
Such property will not be transferred to the beneficiaries immediately. First, the testator’s estate will have to go through a process called probate. Probate is managed by the executor that you name in your will and overseen by the New York Surrogate’s Court. It involves the executor inventorying the assets in the estate and paying all estate bills. Only after all bills are paid and claims against estate settled can the assets be distributed to beneficiaries.Property in probate estate
Even if your will states that you leave all of your property to one or more beneficiaries does not mean that all property that you own at the time of your death will go to the beneficiaries you name in your will. On property that is considered probate property can be disposed of through testamentary gifts. Other property passes based on the rules and regulations that apply the specific type of property.
As a New York will attorney will explain, property that is probate property includes most individually owned personal property such as clothing, jewelry, vehicles, collectibles, and furniture. Real estate that is individually owned is also part of your probate estate, as is your interest in real estate that you co-own as a tenant in common. Financial accounts that you own individually such as your checking account, savings account, or investment account are also probate property.
Property that is not probate property includes property that has a beneficiary designation such as insurance policies, IRAs, 401(k) plans and other pension plans. Insurance policy proceeds and the property in such pension plans go to the beneficiary or beneficiaries you designate. Similarly, financial accounts that have payable-on-death or transfer-on-death designations go to beneficiary you designated.
If you are unsure about the status of property that you own and would like to make sure that it will to the person of your choosing upon you death, contact an experienced will attorney in New York.Example:
Lori’s husband passed away years ago and she did not have any children. She decided to write a will leaving everything to her niece, Sheila, since her other relatives were provided for in other ways. When Lori passed away, Sheila was delighted to receive everything. However, Lori’s nephew, Bert, mentioned that Lori remembered him by leaving making him the beneficiary of her life insurance policy. Another cousin, Sue, was happy that she was the beneficiary of Lori’s 401(k) plan. Sheila was upset and believed that she was entitled to everything that Lori owned. She filed an objection with the Surrogate’s Court judge. The court ruled against her because she was only entitled to everything that was part of Lori’s probate estate. Property that passed outside of the probate estate would go to whoever was entitled to receive it based on the type of property.Related Statutory Provisions
- Competence of attesting witness who is beneficiary; application to nuncupative will: Estates, Powers and Trust, § 3-3.2
- Disposition to issue or brothers or sisters of testator not to lapse; application to class dispositions: Estates, Powers and Trust, § 3-3.3
- Consequences of partly ineffective testamentary dispositions of property to two or more residuary beneficiaries: Estates, Powers and Trust, § 3-2.4
- Conditions qualifying dispositions; conditions against contest; limitations thereon: Estates, Powers and Trust, § 3-3.5
Unless the will provides otherwise, a disposition by the testator of all his property passes all of the property he was entitled to dispose of at the time of his death.Contact the Law Offices of Stephen Bilkis & Associates
If you would like to understand more about what type of property can be left to a loved one a will and what a testamentary disposition includes, contact an experienced will attorney serving clients in New York. The attorneys at the Law Offices of Stephen Bilkis & Associates have over two decades of experience skillfully representing clients in matters related to writing wills, trusts, powers of attorney, and other estate documents. We will ensure that your estate documents meet your goals and are compliant with the requirements of New York law. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.