Manhattan Wills Lawyer

Many people put off writing a will or making any other estate planning documents because they do not want to think about death. Contemplating your mortality is not easy. However, a will is one of the most important tools for planning for your future and the future of your loved ones. A will is a legal document in which you set forth instructions as to who should receive your property after you pass away. Based on the relationships that you have with your family members and their particular needs you can decide exactly which assets each person will receive upon your death as well as how they will receive those assets. In addition, with a will you can nominate the person who will serve as the guardian for your minor children in the event that you predecease them. While a will is an important planning tool, it is not the only estate planning tool that you should consider. To create a will and other estate planning documents that are specifically tailored to accomplish your personal goals contact an experienced Manhattan Wills Lawyer to guide you through the process.

The Importance of a Will

Why have a will? It is important to have a will as it is an effective way to retain control over what is to happen with your estate when you pass away. It will tell everyone what assets will go to whom so that there should be few, if any, disputes over your assets. You last will and testament will also let everyone know who should be named as your minor children's guardian, and who should manage their property. However, the best reason for having a will is to avoid allowing New York State to decide what happens to your assets and what happens to your minor children upon your death. It is better that you make those decisions.

The legal term for dying without a will is called dying "intestate." If that happens, even if your wishes are widely known by family and friends, if your wishes are not memorialized in a properly executed will, then New York intestate succession rules will take precedent over your wishes. NY EPTL § 4-1.1. The result is that people who you wanted to share in your estate, especially if they are not blood relatives, will likely not receive anything. Furthermore, your children may end up being cared for by strangers.

For example, in the case of In the Matter of the Appointment of a Successor Guardian for Timothy R.R., 977 N.Y.S.2d 877 (2013), because the testator passed away without having appointed a guardian for her disabled child a dispute developed among relatives as to who would take care of the child. Ultimately the court had to step in and settle the dispute by appointing a guardian.

As far as how your estate will be distributed if you do not make a will, New York intestacy laws identify only spouses and blood relatives in a specified order of priority as possible heirs. If, for example, you are survived by your spouse but you do not have any surviving children your spouse will receive your entire estate. If you are survived by both your spouse and children then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children. Your surviving children will share in 100% of your estate if you pass away without leaving a surviving spouse. There are also provisions for when parents, grandparents, siblings, aunts, uncles and cousin will share in an estate. NY EPTL § 4-1.1. New York intestacy laws do not allow friends or organizations to be your heirs. Thus, if you want to leave a gift to an army buddy, to a long-term employee, or to your college, you would have to specify these gifts in your last will and testament. Otherwise, they will not inherit.

Types of Wills

There are several different types of wills. The type of will that you should use depends on your personal situation, your goals, and your financial situation. Regardless of the type of will you choose, it is important that the will be well-drafted and properly executed according to the laws of New York.

  • Pour Over Will. A pour over will is used along with a trust. Upon your death any property that is subject to your last will and testament will "pour over" into the trust. The property will be transferred to the trust's beneficiaries according to the terms of the trust agreement.
  • Holographic Will. A holographic will is a last will and testament that is handwritten by the testator and is not witnessed. NY EPTL § 3-2.2. In New York holographic wills are normally invalid. The exception is when it is made during a time of armed conflict by a member of the United States armed forces or someone accompanying the armed forces during a time of armed conflict. A holographic will is also valid if made by a mariner who is at sea.
  • Nuncupative Will. A nuncupative will is similar to a holographic will in that it is typically not valid in New York as it is not created using the formalities that are normally required by New York law. It is not written at all, but is oral will that is witnessed by at least 2 people. Because it is oral it is not signed. Like a holographic will, a nuncupative will is only valid if it is created by someone who is a member of the armed forces, someone accompanying the armed forces, or a mariner at sea. NY EPTL § 3-2.2.
  • Reciprocal Wills. If you and another person such as your spouse, create 2 separate wills with complementary provisions that provide that each person leaves their entire estate to the other person, you have made reciprocal wills. Reciprocal wills typically also provide what happens to the estates if both people die at the same time.
  • Joint Will. A joint will is created when 2 testators make just one will that provides that each person would get the survivor's estate.
  • Codicil. A codicil is not a will but an amendment to an existing will. Codicils are used to add, change or revoke portions of a will. Codicils should only be used to make minor or uncomplicated changes to a will. If the change is major or complicated, then it may be a good idea to execute a new will. Otherwise, the codicil may end up causing confusion and ultimately leading to probate litigation.
Steps to Making a Will

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

  1. Make a list of your assets. Making a list of what is part of your estate is the best way to get an accurate idea as to what you own and what you want to leave to each of your beneficiaries. Types of property includes:
    • Cash such as a checking account, savings account, money market account, as well as cash that you might have in a safe in your home or in a safe deposit box
    • Investments such as stocks and bonds
    • Real estate such as your house, condo or coop, as well as vacation property and rental property
    • Personal property such as home furnishings, vehicles, clothing and jewelry
    • Collectibles such as art
    • 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 interests such as the assets of 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 loans that are outstanding and memorialized in a note or contract.
    • Property held by others include property that is loaned to, stored, or in some way held other people
  2. Guardian for minors. If you have minor children you should figure out who will take care of them in case neither you nor the other parent survives them. You will need to name a person who will raise your children as well as a person who will manage any assets they inherit from you or otherwise own. You can nominate 2 people to fill the roles, or 1 person to fill both roles. In selecting the person who will raise your children if you cannot, some considerations include the potential guardian's age, maturity, where that person lives, parenting style, religious affiliation, moral values, financial situation, and health. In selecting a guardian for your children's estate you should select someone 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 job. You do not want to make this a surprise. However, you should name successor guardians in the event that your first choices are unable to serve.
  3. Distribute your property. Decide who will get your property. You can be very specific about your bequests or you 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. A second option is to be very specific with your bequests. For example, you could leave your baseball card collection to your Uncle Dan, leave your boat to cousin Joe, your vacation home to Aunt Telia, your rare book collection to the public library, and leave the balance of your estate to your spouse.
  4. Special Situations. If you have a special situation that you want to care for in your will, you can. For example, suppose your mother is starting to show signs of dementia and you want to make sure she is properly cared for for the rest of her life, then you can set up a Supplemental Trust with your mother as the beneficiary. You can even leave money to a pet trust that is established to take care of Buster, your Yorkshire terrier, after you pass away.
  5. Choose an executor. The primary responsibilities of your executor will be to assemble your assets, pay your estate debts, and see to the distribution of your estate. While much of what executors 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. Because of this the decision as to who is to be your executor is an important one. Your executor should be someone you trust implicitly such as spouse, adult child, sibling, or your best friend. However, a corporation or a professional executor bring experience and may be a good option, particularly if your estate is complicated.
  6. Put it altogether. Once you have a good idea of what you want to include in your will, or what your estate planning goals are, you need 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 in the presence of a least 2 witnesses.
  8. Store it in a safe place. 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.
  9. Change it if you want. It is important to regularly review your will. This is to allow you to update it based on changes to your family and financial situation. For example, if you get married or divorced, or if there is a birth or death in your family, you made decide that it is necessary to change 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 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.
Duties of an Executor

Your executor is the person who will be responsible for managing your estate. He or she will be in charge of such tasks as paying your estate's debts, responding to claims from creditors, and distributing your property. Upon your death, your executor may be the one who approaches the New York Surrogate's Court to request that your will be admitted to probate. Once a will is permitted to go to probate the steps to administering the estate are as follows:

  • Inventory the Estate. Inventorying your estate involves collecting and appraising your assets. This may involve collecting any money owed to your estate, taking control of bank accounts, and taking control of personal and real property that are part of your estate. Some property may be in the possession of another person. It will be up to the executor to retrieve it.
  • Pay Estate Bills. Once the executor knows the value of your estate, he or she can then start paying any bills owed by that estate. The executor will notify your creditors of your debts and pay all final bills. Creditors and other claimants will have 7 months after the executor is appointed to file claims against your estate. The executor must review each claim and make sure it is valid before using estate assets to pay it. Part of paying estate debts is paying taxes. The executor must file your final federal, state, and local income tax returns, pay any property taxes that are due, and pay estate taxes. If you are audited after your death, then the executor must respond to the audit and resolve it. Estate bills will also include costs related to administering your estate such court costs, attorney fees and accountant fees if any.
  • Distribute Estate Property. Once all valid claims and debts are paid and all disputes settled, the executor may then distribute the remaining estate property to your beneficiaries according to the terms of your will.
Problems During Probate

Probate can be a long and expensive process. At a minimum probate will take 9 months. Circumstances such as hard-to-find heirs, estate tax issues, or estate litigation can significantly extend the process and negatively impact the value of the estate. However, there are estate planning strategies that may significantly decrease the amount of time that it will take for your beneficiaries to receive property that you leave them such as transferring property to a living trust.

Having a last will and testament will is an important document that will help ensure that your wishes are carried out. However, there are other estate planning documents that are also important to make sure your estate is settled as efficiently as possible. Contact the experienced staff at Stephen Bilkis & Associates, PLLC who 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)