Long Island Will and Testament
While a comprehensive estate plan may include several different types of documents, a will is one of the most important. Not having a will could prove to be a critical mistake. You should not assume that your family members will step in and distribute your property according to your wishes. Furthermore, it may not be up to your family. If you die without a will, the court may step in, take control of your estate and distribute your assets based on New York law. This is no likely the result you want. Instead of your family members and close friends receiving property that you want them to have, your property may go to other relatives. Those who you want to inherit may not get anything. The best way to ensure that your wishes are followed is through comprehensive estate planning, including a last will and testament as well as other documents such as a trust. To create a will and other estate planning documents that are tailored to achieve your specific goals contact an experienced Long Island Will and Testament Lawyer to guide you through the process.
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A will and testament is a legal document in which you state who will be the executor and manage your estate upon you death. It also defines who will receive your assets and who will take care of your minor children if the other parent is also not available to take care of them.
Depending on your goals, there are different types of wills that you can make. Clauses that are common to most wills include naming your executor, specific bequests, and naming guardians for your children. For more complicated situations, there are special types of wills. For example, if you and your spouse would like memorialize an arrangement wherein each of you leave the other your entire estate, reciprocal wills and joints wills are options. With reciprocal wills you and your spouse create 2 wills that provide that each of you leave your entire estate to each other. With a joint will you and your spouse create a single will that provides that each person would get the survivor's estate.
If you would like your property to be transferred to a trust upon your death, a pour over will is an option to explore. With a pour over will when you pass away any property that is in your estate and is subject to your will automatically be transferred to the trust. Then the property will be distributed to the trust's beneficiaries according to the terms of the trust.
Regardless of the type of will you decide to make, if after executing it you need to change it, you can write a completely new will, or you can amend it with a codicil. For example, you may want to amend your will to leave property to a grandchild who is born after the original will was executed. Or, you may need to make changes to your will after your financial situation changes. A simple way to do so is by creating a codicil. In fact, it is a good practice to review your estate planning documents annually to make sure that they are still consistent with your wishes.
Regardless of the type of will you ultimately make, you must make sure that it is drafted and executed consistent with New York law. Otherwise, the Surrogate's Court will not admit your will to probate and your property will be distributed according to intestate succession rules. However, there are exceptions to the general rule that wills must follow certain formalities to be value. New York Estates, Powers, and Trusts law provides that holographic wills and nuncupative wills, when created under certain circumstances, will be valid despite not being created and executed according to the normal legal requirements. A holographic will is one that is handwritten by the testator and is not witnessed. A nuncupative will is one that is oral, but is witnessed by at least 2 people. Holographic and nuncupative wills are only legal binding if they are made by a member of the U.S. armed forces or a person accompanying a member of the armed forces during a time of conflict, or by a mariner at sea. NY EPTL § 3-2.2. Holographic and nuncupative wills expire one year following discharge from the armed forces.What happens if you die without a will?
If you pass away without leaving a valid will the New York Surrogate's Court will appoint an estate administrator to wind up your estate and New York law will determine how your assets will be distributed. Under New York laws of intestate succession your primary heirs are your spouse and your children. However, if you pass away without a spouse or children, then the law states that your property will go to other blood relatives in a specific order of priority. NY EPTL § 4-1.1
- Survived by spouse. If you are survived by a spouse and no children, your spouse will receive 100% of your property.
- Survived by spouse and children. If you are survived by both a spouse and children, then all share in your estate, with your spouse getting a greater share then your children. Your spouse will get the first $50,000 of your estate, plus 50% of the balance. Your children will share equally in the remaining 50% of your estate.
- Survived by children. If you are survived by children but no spouse, then they will all share in your estate equally. Your grandchildren (whose parent is your child) will inherit the share that would have been your child's share if that child had not predeceased you.
- Survived by parents. 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 property.
- Survived by brothers and sisters. If you are survived by brothers and sisters (whole or half blood) but not by a spouse, children, grandchildren or parents, then your brothers and sisters will share in 100% of your estate.
- Survived by grandparents. If you are survived by one or more of your grandparents but not by a spouse, children, grandchildren, parents, or siblings then your entire estate goes to your grandparents. Half would go to your paternal grandparents and the other half to your maternal grandparents.
- Survived by aunts and uncles. In the case where your estate would have gone to your grandparents, if they do not survive you, their share would go to your aunts and uncles.
New York intestacy rules do not allow for friends or organizations to be heirs. Thus, the only way to leave property to a person who is not a blood relative (other than a spouse), or to an institution or organization is to make a will.
Another consequence of not having a will is that if pass away leaving minor children and the other parent is not available to care for them, in the absence of a will specifying who you want to raise your minor children, the court will choose a guardian for you. Courts look first to family members to name as guardian. If no family member is qualified, willing or able, then the court may place the children into foster care. Even if the court places your children with a family member, the court's choice may not be a choice you would have made. For example, the court may choose a guardian who does not share the same child-rearing values as you, or someone who your children do not know particularly well.What makes a will valid?
In order for a will to be valid, it must be in writing and signed by you at the end. There are cases where the testator is physically unable to sign a will. It is permissible for someone to assist the testator in signing the will. For example, a "guiding hand" is permitted. If a guiding hand is use, the testator still must have the intent to sign. If the testator is not able to sign the will even with the help of a guiding hand, the law allows someone to sign the will for the testator. This is referred to as a proxy signature. The proxy signature must be one in the presence of the testator and the testator must have testamentary capacity. For example, a proxy signature will not be valid if the testator is unconscious at the time of the proxy signature. The person making the proxy signature must also sign his or her name. However, that person cannot also be a witness.
At least two witnesses must also sign the will, attesting that they saw you sign the will or that you advised them that you did indeed sign the will. NY EPTL § 3-2.1(a)(4). The statute does not mentioned specific requirements for a person to be a witness. However, ideally the witnesses are not also beneficiaries named in the will, as witnesses are not allow to also receive gifts in the will. NY EPTL § 3-3.2(a)(1). In other words, an "interested" witness' bequest will be voided.
When it is time for the signing of your will, the witnesses must affirm that you as the testator understand that you are making a will and that the document being signed is your last will and testament. Ideally, you should sign the will in the presence of both of the witnesses. However, if you do not, when the witnesses sign you should acknowledge that the signature on the will is yours. The two witnesses are not required to sign the will at the same time. However, the law requires that they sign within 30 days of each other. In New York, there is a rebuttable presumption that a will was signed by each witness within a 30 day period. However, this presumption can be challenged in a will contest. Should there be a challenge to the validity of the will the witnesses may be called to testify regarding the circumstances of the execution of the will.
In order for your will to be valid, you must have testamentary capacity and you must not be under undue influence. Testamentary capacity means that you must have the mental capacity to understand that you are making a will. In In the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the court described a 3 part test for the existence of testamentary. At the time the will was executed the testator must have understood the nature and consequences of executing a will, the testator must have under the property he or she owned and its value, and the testator must understand who his or her family members were.
Undue influence is show if 3 factors exist. The person accused of exerting undue influence must have motive, opportunity and completed actual acts of undue influence. Under the Putnam Rule, there is a rebuttable inference of undue influence when an attorney is a named beneficiary in a will and testament that he or she also drafted.
Because a will is critical to your estate plan, it is important that it is drafted by someone with experience. A will and testament that is not properly executed may result in the court concluding that there is no valid will. If that happens, your estate will be subject to the laws of intestacy. The staff at Stephen Bilkis & Associates, PLLC has years of experience working closely with clients to draft wills, trusts, durable powers of attorney, as well as other estate planning documents. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.