Nassau County Will Drafting

Writing a will and preparing other estate planning tools may seem like a difficult task. It is unpleasant to think about death. However, we all want to make sure that our loved ones are properly cared for after we pass away. A properly constructed last will and testament will not only ensure that your assets are distributed according to your wishes, it will also make sure that the guardian of your choosing will care for your children, and that a person you trust will be responsible for managing your estate. As you begin the estate planning process, it is wise to consult with an experienced Nassau County Will Drafting Lawyer who will help you develop a plan tailored to your needs.

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Steps in the Will Drafting Process

1. Decide which property you want to include in your will. The first step in the drafting your will is the list your major assets such as real estate, bank accounts, securities, jewelry, and vehicles. Keep in mind that some of your major assets will pass outside of your will. Examples of such property includes life insurance, retirement plans such as 401(k) plans, pension plans, and IRAs, accounts with a payable on death (POD) or transfer on death (TOD) designation, property transferred into a trust, and certain co-owned property.

2. Decide you would like to receive your property. Write down who you want to get each assets. Typically, testators leave their property to their spouse, children, grandchildren, siblings and other close relatives. However, there may also be non-relatives to whom you would like to leave property such as a close friend, a long-term employee or caretaker. In case your primary beneficiaries do not survive you, it is also a good idea to include contingent beneficiaries. You may also decide to leave property to your church, your alma mater, or a charity.

3. Decide on who you would like to be the executor of your estate. The executor of your estate is the person who is responsible for administering your estate and ensuring that your wishes are carried out. The responsibilities of your executor include notifying your creditors and government agencies of your death, inventorying the estate, having the estate appraised, setting up an estate bank account, maintaining estate property until it is distributed, paying estate debts, paying estate taxes, resolving any claims against the estate, and distributing your estate to your named beneficiaries.

4. Choose a guardian for your minor children. If you have any children who are minors, then you can name guardians for them in the event that they are minors when you pass away and the other parent is unavailable to raise them. When considering who you want to raise your children if you cannot, there are a number of factors that you should consider:

  • The age of the guardian. The guardian must be at least 18 years old. However, is a wise idea to name someone who is 19, 20, some other fairly young age as the guardian of your children?
  • Whether the person has a proven track record of being responsible. While you best friend may be fun to hang out with, has that person demonstrated he or she is responsible enough to raise your children.
  • The current relationship of the person with your children. Even if you know someone very well, it may be hard on your children if they end up being cared for by someone who does they do not know very well. Make sure that the prospective guardian truly cares about your children.
  • The physical capabilities of the prospective guardian. If the prospective guardian has any physical limitations, consider whether that person would be physically able to raise your children. Any older person such as your mother or grandmother may not have the physical strength to keep up with active children.
  • Time Constraints. Make sure the person you select has the time to raising your children in the manner you prefer. For example, if your sister is a loving aunt, who dotes on your children, she may be the perfect selection to be the guardian of your kids. On the other hand, if this same aunt also has a rising star in her company and frequently works 60-70 hour weeks, the aunt may not have the time to be the hands on guardian that you would want her to be.
  • Guardian's other children. Selecting a guardian that has other children close in age to your kids may be a good idea as that person understands what it takes to raise children. In addition, it may prove helpful for there to be other kids around to offer comfort and distraction for your children. On the other hand, if your prospective guardian already has 5 kids, for example, he or she may not be able to handle your 3 kids as well.
  • Financial considerations. If your prospective guardian is struggling financially, he or she may not be able to raise your kids as well, unless you also leave a trust for your kids with enough assets to cover expenses related to their care.
  • Parenting style considerations. Consider your parenting style and the prospective guardian's style. This includes religious beliefs. If you do not have shared religious beliefs and have other differences, then you cannot be assured that the guardian will raise your children in a way of which you approve.
  • Location. Even if the guardian is perfect in all other ways, if the guardian lives far away from you, consider whether you would want your children raised in a different area.

5. Choose a guardian for your minor children's property. If you leave assets to your minor children, you will need to name someone to manage their assets until they are adults. Consider setting up a trust. Then name a responsible adult to be the trustee. This person could be the same person that you name as your children's guardian, or it could be a if different person.

6. Draft your will. Work closely with your Nassau County Will Drafting Lawyer to create your will. In order for a will to be valid, New York law requires that you sign the will at the end. There must be at least two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4). The witnesses must be present when you sign the will, or you must acknowledge to each witness that you did indeed sign the will. The witnesses must be adults and cannot be anyone you name as a beneficiary in your will. If a witness is also a beneficiary, the witness will not be permitted to receive the gift you left him or her in the will. Furthermore, failure to properly execute your will will cause a delay in the probate process and possibly subject it to a will contest.

In order to ensure that all of your estate planning goals are met and to ensure that your will meet the legal requirements of New York, you should have it drafted by someone with experience.

7. Execute your will. New York estate law requires that in order for your will to be valid you must sign it at the end and at least two witnesses must sign it. In addition, you must have testamentary capacity, meaning that you must be at least 18 years old and you must be of "sound mind." This means that at the time of execution you must not suffer from a condition that renders you mentally incapable of understanding that you are executing your will and what that means.

8. Store it and revisit it. Store your will line in a safe, yet accessible place. Let your executor know where it is. Review your will regularly to make sure that it is consistent with your current wishes. For example, life changes such a marriage, death, or birth as well as changes in your finances may signal that you need to change some of the terms of your will.

Once your will is drafted, you should periodically review it to make sure that it still reflects your wishes. Certain changes in your family structure such as marriage, the birth or adoption of a child, or divorce present good reasons to review your will and all of your other estate planning tools to make sure that they are consistent with your new circumstances. Likewise, significant changes to your financial situation and changes to tax laws should prompt you to review your will. Should you need to change your will, consult with an New York estate lawyer to ensure that the changes are made properly so that they will be effective.

A will is just one tool of a comprehensive estate plan. Depending your individual circumstances, in order to meet your estate planning goals, you may also need additional estate planning documents such as a trust, living trust, living will, or durable power of attorney. Also, it is important to understand the consequences of not having a will. If you pass away without leaving a valid will, then your estate will be distributed to your heirs 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 not consistent with your wishes and cause financial hardship for your loved ones that you sought to avoid.

To ensure that your will and other estate planning documents are properly drafted and executed, it is important for you to have experienced representation. The staff at Stephen Bilkis and Associates are experienced in estate litigation and have worked extensively in the New York Surrogate's Court. We will help you make the process as painless as possible under the circumstances. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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