and Your Family
Manhattan Holographic Will
Creating a will is one of the most important things you can do to ensure that your last wishes are fulfilled. While most people agree that a will is important and necessary, some of us delay making one. Some delay until they feel that their lives are in immediate peril before deciding to make a will. Under such circumstances it is usually not possible to make a will that is compliant with the basic laws of New York regarding how a will must be executed. Instead, the testator ends up quickly making a handwritten will, referred to as a holographic will. Unfortunately, holographic wills are rarely considered valid by New York Surrogate's Court. In fact, New York law has very strict rules about the conditions under which a holographic law will and testament will be consider valid. If you make a holographic will that the Surrogate's Court refuses to probate, your estate will be treated as if you did not leave a will. This is not likely the result that you want. In order to ensure that your will is legally sufficient it is wise to consult an experienced Manhattan Holographic Will Attorney who will explain to you what is required to draft and execute a valid will in New York.
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New York law has very specific requirements that must be followed in order for a Surrogate's Court judge to find that a will is valid and admit it to probate. Generally, the will must be signed at the end by the testator, or by another person at the direction of the testator. There must also be two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4) The witnesses must be present when the testator signs the will, or the testator must acknowledge to each witness that he or she did indeed sign the will. If these formal requirements are not followed, the Surrogate's Court judge may refuse to admit the will to probate, or the will may be subjected to a will contest.
The purpose of these requirements is to reduce the possibility of fraudulent wills being admitted to probate. With the signatures of the testator and witnesses the will is self-proving. "Self-proving" means that in order to show that it is valid all a judge will have to do is look at the will to see that it was signed by the testator and 2 witnesses instead of having to review other evidence. Of course if someone challenges the validity of a will, the Surrogate's Court will have to listen to testimony from the witnesses and review other evidence to determine if the will is valid.Holographic Will
An exception to New York's formal requirements of execution is the holographic will. A holographic will is a last will and testament that has been entirely handwritten by the testator and was not attested to by witnesses. NY EPTL § 3-2.2. A holographic will poses proof problems since it is not self-proving; there is no evidence in the will itself that it was made by the testator. However, because of the unique circumstances members of the armed forces and mariners out at sea may find themselves in, a holographic last will and testament will be considered valid only in the limited circumstance where it is written by a member of the United States armed forces during a time of armed conflict, someone accompanying the armed forces during a time of armed conflict, or written by a mariner at sea. A holographic will becomes invalid 1 year after the testator ceases serving with the armed forces, or in the case of a mariner at sea, 3 years after the will was made. For this reason it is important that after you have left the armed forces or are no longer a mariner at sea you should make another will that is compliant with the self-proving requirements of New York law.
This means that if you are not in the armed forces and you are not a mariner at sea, jotting downing on a piece paper your last wishes for your property will probably not be sufficient to make a will that the Surrogate's Court will admit to probate.Other types of wills
In addition to a holographic will there a number of other types of wills, some of which are self-proving and one of which is not. A nuncupative will, sometimes referred to as a deathbed will, is a spoken will. Oftentimes a spoken will is made because the testator does not have the opportunity to making a written will before he or she passes away. The problem with a spoken will is that they are valid under only a few very narrow circumstances in only some jurisdictions. Like a holographic will, in New York a nuncupative will is only valid when made by a member of the United States armed forces during a time of armed conflict, someone accompanying the armed forces, or a mariner at sea. A nuncupative will must be witnessed by two people. In order words, two people must be present when you verbalize your wishes. NY EPTL § 3-2.2.
Nuncupative wills and holographic wills allow individuals whose lives are in peril to make a will without the normal formalities. Those who are in the military in the middle of a conflict do not have the luxury of being able to draft a will on a computer. Similarly, mariners at sea may also find their lives in peril and are not likely to be able to make a self-proving will. On the other hand people who are not in the military and who are not mariners at sea typically have the time and access to the resources to draft and execute a will in the manner required by New York law.
A joint will is a single will that is executed by more than one person. Typically a joint will is made by spouses. A joint will usually provides that each testator leaves the bulk of their property to the other testator. So, for example, if you and your spouse made a joint will, if your spouse dies before you, you will inherit all of his or her property. If you die first your spouse will inherit all of your property. A joint will may also state what happens to the property after the second testator passes away. For example, a joint will made by spouses may provide that upon the death of the second spouse the property that is part of the joint estate goes to a charity. This means that if the second spouse remarries, he or she will not be able to leave the property that is part of the joint estate to the new spouse.
Mutual wills are similar to a joint will. They are a means for one person to coordinate estate planning with another person. Mutual wills are two separate wills that typically have complementary provisions that each person will provide for the other. Mutual wills can be made by spouses, siblings, or any two or more people who find a need to coordinate estate planning in this manner.Consequences of Dying without a Valid Will
A holographic will is a unique type of will that will only be considered valid if it is made under certain extreme conditions. In all other circumstances, a holographic last will and testament will not be valid and will not be probated. If this happens then your estate will be treated as if you died without leaving a will. In New York if you do not leave will your estate will be disposed of according to the laws related to intestate succession. NY EPTL § 4-1.1.
Under the rules of intestate succession if when you pass away you have a spouse, but no kids, then your spouse will inherit your entire estate. If you are survived by your kids but no spouse your children will inherit your entire estate in equal shares. If you have both a surviving spouse and kids, then your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. The remaining portion of your estate will be distributed in equal shares to your kids. If you have no spouse and no kids, but you have surviving parents, then your parents will inherit your entire estate. If you have no surviving spouse, kids, or parents, then your siblings inherit everything in equal shares. If you die leaving no surviving spouse, kids, parents or siblings, then your property will go to your grandparents, aunts, uncles, or cousins.
While this rarely occurs, if you die leaving only a holographic will and the court determines it to be invalid, then there is a possibility that your property will end up in the hands of New York State. If you are not survived by any relatives, then your property may ultimately escheat to the state. For purposes of escheat, relatives include a spouse, parents, children, grandchildren, siblings, siblings of a spouse, aunts, uncles, nieces, nephews, or cousins.
For purpose of inheriting under intestate succession, children who are legally adopted are treated in the same manner as biological children. Unless you legally adopted them, foster children and stepchildren are not entitled to inherit under intestate succession as they are not considered to be biological children. Biological children whom you placed for adoption who are adopted by a non-family member are not entitled to an intestate share of your estate. Posthumous children, meaning children conceived by you, but not born before your death are biological children and are entitled to a share of your estate. If you father a child outside of marriage, the child will be entitled to a share of your estate if paternity is established under New York law. Grandchildren are not automatically entitled to a share of your estate. However, if your child predeceases you, then your child's child (your grandchild) is entitled to a share of your estate.
Having a valid will is critical to your estate plan. If you execute a will that will not be admitted to probate or that will not survive a will contest then your estate will be distributed according to New York's intestacy laws. NY EPTL § 4-1.1. This may result in a distribution of assets in a manner that is different from your intentions. The law requires that where there is a spouse the bulk of the estate will be distributed to him or her. Children will also receive a significant share of the estate. New York intestacy rules do not allow for individuals who are not blood relatives or adopted children to inherit. Suppose that in your holographic will you stated that you want your estate to be divided equally among your spouse, your best friend, and your favorite charity. If your holographic will is considered invalid because it was not made under the strict requirements of New York law, then your wishes will not be fulfilled. In fact, under New York law the only way that a non-relative will share in your estate is if you make such a provision in a valid will.How to make a will
While some choose to wait until they are older or until they face a life-threatening situation to make a will, it is not a good idea to put off making a will. Anyone who is at least 18 years old and is not suffering from a mental incapacity can make a will under New York law. If you meet these requirements, making a will requires the following steps.
Start off by making a list of your assets. Once you start to think about this and write it down, you may discover that you have more assets than your think. Examples of assets includes cash that you have in your bank account, stocks and bonds that you manage through your brokerage account, life insurance, retirement plans, personal property such as vehicles and home furnishings, collectibles such as fine art, assets that a part of a business that you own, property that you co-own with another person, money that is owed to you, property of yours that other people are using, and digital property such money in an ecommerce account.
If you have minor children, an important part of your will is naming who will be their guardian in the event that you predecease them and the other parent is also not available to take care of them. While your first thought might be to name your best friend or a sibling, there is a lot to take into consideration when making this decision. Some things to consider include the potential guardian's age, maturity, where that person lives (do you want your kids to move away from where they have been living), parenting style, religious beliefs, moral values, attitude toward education, financial situation, and health. You also need to choose who will be responsible for managing any assets that your children inherit from you such as proceeds from a life insurance policy.
Next you will have to decide who will get your property. For example, you may decide that you want your spouse, children, sister, brother, and favorite charity all to benefit from your will. In your will you can state which property each beneficiary gets, including the amount of cash each one is to receive. Keep in mind that not all of your assets are subject to your will. Certain assets pass outside of your will, such as the proceeds of your life insurance policy as well as retirement plans. If your spouse will get the $1 million from your life insurance, for example, then you may choose to leave your children your home, your siblings the cash in your bank accounts, and the charity your art collection.
If you have family members who need special consideration such as a child with a disability, with your will you can leave that child money in a special needs trust so that that child will be properly cared for.
Another important decision when making your will is to decide who will be your executor. The executor of your estate will be in charge of winding up your affairs and distributing your assets to your beneficiaries. In carrying out this responsibility your executor will have some degree of discretion. For this reason it is important to select a person who is trustworthy, responsible, and financially astute. While a spouse, adult child, or close friend may be a good choice, there are also corporate executors available.
You will then work closely with an experienced practitioner to memorialize your will on paper, and execute it by signing it in the presence of at least 2 witnesses. Keep the original in a safe, yet accessible place and let your executor know where it is. Also make sure that your executor has the names and addresses of your beneficiaries, heirs and other interested parties so that your executed can contacted them when it is time to settle your affairs.
Every 2-4 years review your will to determine if you need to make any changes. Life changes such as marriages, divorces, births, and deaths may warrant changes to your will. Another reason to revisit your will is if there is a significant change to your financial situation or if you acquire or get rid of a significant asset. There may also be changes in the law that may affect your will such that you might need to make revisions.
Under most circumstances holographic wills are not valid in New York. While a holographic will may be valid for members of the armed forces during periods of armed conflict, those who are in the military should consider planning in advance and create a self-proving will as well as other estate planning documents. To ensure that your will and other estate planning documents are properly drafted and executed, it is important to contact an experienced estate planning attorney. The staff at Stephen Bilkis & Associates, PLLC will help you develop an overall estate plan that reflects your individual goals. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.