Manhattan Will Lawyer

While you may be want to put off making a will or put off even thinking about making a will, the consequences of not having a will is that the loved ones who you would like to receive your assets upon your death may not receive them. Making a will is an important part of estate planning. It is not just something that older people should do. Every adult should make a will. It is even more important to have a will if you have children. Once you make a last will and testament you will have the peace of mind in knowing that those who you care about will receive your property and will be cared for in the manner of your choosing. If you pass away without a will the fate of your assets will be in the hands of the State of New York. That is not the result that most of us want. To help you understand the importance of having a will and how having a will can help you attain your personal goals, contact an experienced Manhattan Will Lawyer who will be able to educate you not only about wills, but on how to develop a set of comprehensive estate planning tools.

Advantages of Making a Will

The main advantage of making a will is that a will allows you to control what will happen to your property after your death. You can decide to leave your property to family members, or you can leave it to close friends. Suppose, for example, that you want to leave your estate to your long-time significant other who you never married. With a will you can easily do so. Without a will there is a good chance that your significant other would get none of your property. In addition, if you pass away leaving minor children, a will allows you to decide who will take care of them if neither you or the other parent is able to.

If you are still not convinced that you need to make a will, consider the consequences of not making a will. Instead of the people who you want to receive your property receiving it, people who you do not like or perhaps do not even know may receive your property. Under New York's laws of intestate succession, only blood relatives in a specific order for priority will be able to receive your property. This could mean that your mean aunt who you never got along with will end up receiving your property. Or your niece who you have not seen for 2 decades will be pleasantly surprised to learn that she just inherited your house. This is a surprise that you, on the other hand, would want no part of. Another unintended consequence of you not leaving a will is that your minor children may end up being raised by that same mean aunt that you have tried to avoid. If you do not name a guardian in your will the court will name a guardian. The court will first seek a relative who is qualified and willing to serve. If no qualified relative is available, the court may appoint a public guardian.

Steps to Making a Will

Making a will involves several steps from figuring out what is part of your estate to executing the final document.

  1. Make a list of your assets. Start off the will making process by making a list of your assets. Some people underestimate the size of their estates before taking the time to write down everything they own. In fact, some do not think they really have an estate. You probably do. Here are some examples of types of property:
    • Cash such as a checking account, savings account or money market
    • Investments such as stocks, bonds, and mutual funds
    • Real estate such as your primary residence, vacation property, and rental property
    • Personal property such as furniture, cars, boats, clothing and jewelry
    • Collectibles such as your artwork, sports memorabilia, and coin collections
    • Life insurance including proceeds of life insurance policies on your own life
    • Retirement plans such as pension plans, 401(k) plans, profit sharing plans and IRAs
    • Business interest such as a small business that you own
    • Joint property including your interest in property you co-own with another person such as real estate or a business
    • Money owed to you. Significant personal loans that are outstanding and memorialized in a note or contract.
    • Digital property includes funds held in an ecommerce account
  2. Protect the children. If you have minor children you have to decide who will take care of them in the unlikely event that neither you nor the other parent survives them. This involves nominating a personal guardian who will raise your children, and setting up a guardian over your children's estate who will manage the money and property you leave to them. You can name one person to fill both roles or different people to fill the roles. In deciding on who should be your children's person guardian, some considerations include the potential guardian's age, maturity, living situation, parenting style, religious, social education and moral values, financial situation, and health. In selecting a guardian for your children's estate you should select someone who is mature, responsible, and who has proven financial knowledge and money-management skills.
    Once you make a decision discuss it with the prospective guardians. Make sure that they are willing and able to accept the responsibility. In the case of both the personal guardian and the guardian of the estate you should name successor or back-up guardians in the event that your first choices are unable to serve.
    When including a guardianship provision in your will keep in mind that you should include children who are born after the will is executed.
  3. Distribute your property. Decide who will get your property. Depending on who your beneficiaries will be, you can be very specific about your bequests or your can be general. For example, you can simply leave your spouse your entire estate. Or you can leave your 2 children your entire estate with each receiving 50% of it. Another option is to be very specific with your bequests. For example, you could leave your classic car to your Uncle Harry, leave your antique pocket watch to cousin Bob, your vacation home to Aunt Sally, your rare book collection to the university library, and leave the balance of your estate to your wife.
  4. Special Situations. If you have a special situation that you want to care for your will, you can. For example, suppose you have a niece with special needs and you want to make sure she has funds to be properly cared for for the rest of her life, then you can set up a Special Needs Trust with your niece as the beneficiary. You can even leave money to a pet trust that is established to take care of your faithful terrier after you pass away.
  5. Choose an executor. The primary responsibilities of your executor will be to see to the distribution of your estate and make sure any taxes, debts, and other obligations are paid. You should take great care in naming your executor. While much of what the executor will do to settle your estate is defined by New York law, your executor will have some discretion as to how to carry out his or her duties. Naturally, your executor should be someone you trust implicitly such as your spouse, adult child, sibling, a close friend, or anyone you trust and is able to take on the task of disposing of your estate.
  6. Put it all together. Once you have a good idea of what you want to include in your will or what your estate planning goals are, it is advisable to work closely with an experienced practitioner to memorialize your will on paper. Under New York law, except under very narrow circumstances, for your will to be valid, it cannot be oral, it must be written.
  7. Execute your will. If your will is not properly executed it will not be valid. You must sign your will at the end. At least two people must witness your signing your will.
  8. Give a copy to your executor. Keep the original in a safe, yet accessible place and let your executor know its location. Give a copy to your executor so that he or she will have easy access to it up your death. Also make sure that your executor has the addresses of your beneficiaries, heirs and other interested parties so that they can be contacted when it is time to settle your affairs and distribute your assets.
  9. Change it if you want. It is important to regularly review your will-- every 3-5 years. This is to allow you to make changes to your will based on changes to your family and financial situation. For example, if you get married or divorce or if there is a birth or death in your family, you may need to make changes as to how your property should be distributed. Another reason to revisit your will is if there is a significant change to your financial situation or if your 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.

Probate is the process that your last will and testament must go through before your assets can be distributed to your beneficiaries. First someone must petition the New York Surrogate's Court to admit your will to probate. This is typically done by your executor, but can be done by a beneficiary, a guardian, or a trustee named in your will. If the Surrogate's Court judge finds that the will is valid, then your last will and testament will be admitted to probate. This means that the person who you appointed as your executor will have the authority to start the process of settling your estate.

Your executor will first collect, inventory and appraise your assets. Then the executor will pay estate debts such as your funeral costs, unpaid bills owed to your creditors, and taxes. During probate there may arise disputes that could cause estate litigation. Such disputes may involve creditors seeking payment on outstanding claims, unhappy beneficiaries, or issues related to how the executor has managed the estate. Any disputes most be resolved before the estate can be closed. It is up to the Surrogate's Court judge to resolve claims brought against the estate.

Once debts are paid and claims are resolved, the executor will submit a final accounting to the court and request permission to close the estate and distribute your assets to the beneficiaries named in your will.

Probate will take at least 9 months. It commonly takes 2 months after the Petition for Probate is submitted for the judge to issue the letters testamentary. After that there is a waiting period of 7 months so that any claimants can file claims against the estate. Probate will be extended if there is an estate tax issue or if there is estate litigation.

No Will or Invalid Will

If you pass away without a will or if the Surrogate's Court finds that your will is invalid, your estate will pass to your heirs based on the laws of intestate succession. Instead of the beneficiaries of your choosing receiving your property, your estate will be distributed as follows:

If you are survived by a spouse and you do not also have surviving children, your surviving spouse will inherit 100% of your estate. If you are survived by both a spouse and children, then all share in your estate. Your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. Your children will inherit the remaining 50% of your estate. If you are survived by both a spouse and children, then all share in your estate. Your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. Your children will inherit the remaining 50% of your estate. However, if any of your children predeceases you and is the parent of your grandchildren, then your grandchildren will inherit your deceased child's share. If you are survived by children but no spouse, then they will all share in your estate equally. If you are survived by one or both of your parents, but not by a spouse or children, then your parents will share equally in 100% of your estate. If you are survived by siblings but not by a spouse, children, or parents, then your siblings will share in 100% of your estate. After that the law requires that your estate go to grandparents, aunts, uncles and cousins.

Even where there is no issue of finding heirs or estate litigation, the process of probating a will is often lengthy, causing delays in beneficiaries receiving assets. This may cause financial hardship to your loved ones. In addition to having a will, consult an estate planning attorney about the benefits of also having a trust that will allow a speedier distribution of assets. To learn more about writing a will, trust, and other estate planning tools, contact Stephen Bilkis & Associates, PLLC. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

1.800.NY.NY.LAW (1.800.696.9529)