and Your Family
Manhattan Last Will and Testament
A last will and testament, often referred to as a will or a will and testament, is a legal document in which you leave instructions as to who should receive your property once you pass away. While many people leave their property to close family members such as a surviving spouse, children or siblings, a will gives you the flexibility to also leave property to non-relatives such as good friends as well as institutions such as your college or a charity. In addition, with a will you can name guardians for your minor children and name someone to manage their property until they become adults. Upon your death, the executor who you name in your last will and testament will settle your estate and ultimately distribute your assets to your beneficiaries. In the absence of a will, it is less likely that your property will end up in the hands of those who you want to have it. While a last will and testament is an important estate planning document, it may not be the only one that you need to attain your planning goals. To create a will and other estate planning documents that are specifically tailored to accomplish your personal goals, contact an experienced Manhattan Last Will and Testament Lawyer to guide you through the process.
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There are several reasons to have a last will and testament. Most who create wills want to make sure that their family members are well cared for after the testator passes away. There are provisions that you can include in your will to make sure that your spouse, children and others have assets that will help them financially. For example, for your minor children you can put money in a trust that is to be used for their education. For your not-so-financially astute sister, you can leave money in a special trust called a spendthrift trust where a trustee controls who the money is distributed to your sister. Or, if you have a cousin who is disabled, you can use your will to set up and fund a special needs trust that will allow your cousin to continue to receive the care he needs through the rest of his life. 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. In other words, a will allows you to give away your property in that manner of your choosing.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 have testamentary capacity. This means that you must be at least 18 years old and that you must not be mentally incapacitated. The will must be in writing and you must sign it at the end. It must also be witnessed by at least two people. NY EPTL § 3-2.1(a)(4). 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. In either case there will be a delay in your assets being distributed to your beneficiaries.
In some cases relatives or heirs of a deceased testator will challenge a will arguing that the testator 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 an ailment that affected his or her brain such as dementia or traumatic brain injury. However, a person who has a diagnosed disorder that affects that person's mental capacity may still have the ability to execute 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 the case of In re the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the decedent suffered documented psychiatric problems. 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 have a period of lucidity when the will was created. Similarly in the case of In the Matter of the Estate of Rose McCloskey, 307 A.D.2d 737 (2003), the court concluded that although the testator suffered from several ailments including depression, affective disorder, and dementia, there was no evidence that she lacked testamentary capacity when the will was executed.
In very limited circumstances holographic or nuncupative wills are permissible in New York. Neither holographic or nuncupative wills are created in a manner that is typically required by New York law. 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, someone accompanying the armed forces during a time of conflict, or by a mariner at sea. Under any other circumstance a holographic or nuncupative last will and testament will likely not be admitted to probate.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. Except for holographic or nuncupative wills, wills in New York are require must be self-proving, meaning that they must be signed by the testator in the presence of 2 witnesses.
Spouses sometimes create wills which provide that each spouse leaves the other their complete estates. With reciprocal wills you and your spouse create 2 wills that provide that each of you bequeaths your entire estate to each other. Similarly, with a joint will, you and your spouse create a single will that provides that each person would get the survivor's estate. While reciprocal wills and joint wills are commonly created by spouses they can be create by 2 individuals who are not spouses such as siblings or business partners.
Another special type of will is a pour over will. A pour over will is used together with a trust. When you pass away any property that is subject to your last will and testament will not be distributed directly to your beneficiaries. Instead, it will first "pour over" into the trust. Then the property will be transferred to the trust's beneficiaries according to the terms of the trust.
A codicil is a term that is confusing to some. It is not a will, but an amendment to a will that you had previously executed. Testators often find that they need to update their will after it was executed. Such changes may be prompted by a marriage, divorce, death, birth or adoption. Or it may be prompted by a change in your financial situation or a change in a federal or state law. Instead of making a new will, you can execute a codicil. If the change is major or complicated, then it may be more appropriate to execute a new will.What happens if you die without a last will and testament?
The great thing about having a will is that it allows you to remain in control of what happens with your property after you pass away. For instance, suppose the only blood relative you have is a niece who you have not seen in years. While you may not have anything against this niece, you would rather leave your sizeable estate to your 2 best friends and to your favorite charity. 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. In the above example under these rules your estate would not go to your best friend or your favorite charity. 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, siblings, grandparents, aunts, uncles and cousins. 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 raise your children. With a will you can state your preference for a guardian after discussing it 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. If no blood relative is available to be your children's guardian, your children may end up in foster care.What is Probate?
Before your assets can be distributed to the beneficiaries you designate in your last will and testament, 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. However, if someone objects to the will in a will contest, then the judge will listen to the objection, hear testimony from the witnesses to the will execution and review other evidence before determining if the will should be admitted to probate.
If the judge determines that the will is valid then he or she will give your executor formal authority to go about the business of managing your estate. Estate management includes gathering and inventorying your assets, paying your estate's debts, resolving claims, and ultimately distributing your property to your beneficiaries.
A last will and testament is an important document that should be created after careful consideration. To ensure that your will is in compliance with New York law, it is also important that it is drafted by someone who has experience. The staff at Stephen Bilkis & Associates, PLLC has years of experience working closely with New York clients to draft wills and other estate planning documents such as trusts, powers of attorney and living wills. To learn more about estate planning , contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.