and Your Family
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 at the Law Offices of Stephen Bilkis & Associates to guide you through the process.Will and testament
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, with the help of an experienced Long Island will and testament lawyer 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. Thus, it important to contact an experienced Long Island will and testament lawyer to write a new, properly executed will once you have been discharged.Lack of 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.Requirements for a valid will
For a will to be valid, New York law require the following:
- Testator must be at least 18 years old
- Testator must not be mentally incapacitated
- Will must be in writing
- Will must be signed at the end by the testator
- Two competent witnesses must witness the testator sign the will, or the testator must acknowledge to the witnesses that he (or she) signed it
- Testator must not have been under duress
- Testator must not have been subjected to undue influence
If you suspect that the will of a loved one is not valid, discuss your concerns with an experienced will and testament attorney in Long Island. As long as you have legal standing, you can challenge the will by filing an objection to probate.Contact the Law Offices of Stephen Bilkis & Associates
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 attorneys at the Law Offices of Stephen Bilkis & Associates has years of experience working closely with clients to draft wills, trusts, durable powers of attorney, as well as other estate planning documents. Contact an experienced will and testament attorney serving Long Island at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Brooklyn, Queens, Suffolk County, Bronx, Staten Island, Manhattan, Long Island, Nassau County and Westchester County.