Nassau County Will

While you may be loathe to make a will as it is difficult to think about your mortality, 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. With a will you can be very specific as to which asset you leave to each of your loved ones. A properly written and executed will can ensure that there is no confusion as to your intentions. On the other hand, in the absence of a clearly written and properly executed will your wishes may not be fulfilled. Instead, the state may end up deciding how your property will be distributed. To help you understand how having a will can help you attain your personal goals, contact an experienced Nassau County 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.

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  • N.Y. Estate Procedure & Practice Nassau County Estate Lawyer
  • N.Y. Estate Procedure & Practice Nassau County Probate Lawyer
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  • N.Y. Estate Procedure & Practice Nassau County Estate Administration
  • N.Y. Estate Procedure & Practice Nassau County Estate Planning
  • N.Y. Estate Procedure & Practice Nassau County Last Will and Testament
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  • N.Y. Estate Procedure & Practice Nassau County Living Will
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  • N.Y. Estate Procedure & Practice Nassau County Will
  • N.Y. Estate Procedure & Practice Nassau County Wills
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  • N.Y. Estate Procedure & Practice Nassau County Fraudulent Transfers
  • N.Y. Estate Procedure & Practice Nassau County Heir Finder
  • N.Y. Estate Procedure & Practice Nassau County Holographic Will
  • N.Y. Estate Procedure & Practice Nassau County Intestate Succession
  • N.Y. Estate Procedure & Practice Nassau County Living Trust
  • N.Y. Estate Procedure & Practice Nassau County Power of Attorney
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Definition of a Will

A will is a legal document that can serve several purposes, including setting forth your instructions as to how your assets are to be distributed upon your death and naming who should take care of your minor children.

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.

  • Pour Over Will. If you have a living trust, you can design your will so that any property that is part of your estate when you pass away automatically "pours over into the trust. Typically your estate will first go through probate before the property is transferred to the trust.
  • Holographic Will. A holographic will is a handwritten will that is not witnessed. NY EPTL § 3-2.2. In New York a holographic will is only valid when made under specific circumstances. The testator must be a member of the United States armed forces, someone accompanying a member of the armed forces during a time of conflict, or a mariner at sea.
  • Nuncupative Will. A nuncupative will is an oral will. It is not written. However, to be valid a nuncupative must be witnesses by at least 2 people. Like a holographic will, a nuncupative will is only valid if the testator must be a member of the United States armed forces, someone accompanying a member of the armed forces during a time of conflict, or a mariner at sea. NY EPTL § 3-2.2.
  • Reciprocal Wills. If you and another person, typically your spouse, make individual wills wherein you each leave your entire estate to each other, you will have made reciprocal wills. These types of wills are also referred to as "mirror wills." Reciprocal wills may also provide what happens to the estates if both people die at the same time.
  • Joint Will. A joint will is similar to reciprocal wills. However, instead of creating two separate wills, the two (or more) individuals make just one will that provides that each person would get the other's estate.
  • Codicil. A codicil is not a will, but an amendment to a will. For example, if there is a change to your family such as the birth of a grandchild, you may decide to amend your will to specifically leave your grandchild property. Instead of executing a completely new will, you can simply execute a codicil. In order for a codicil to be valid, it must be executed with the same formalities as a will.
Property that Cannot be Left in a Will

Not every type of property can be left to others in a will. If you include property that legally passes to another person outside of a will, then that particular bequest as stated in your will will not be followed. Such property includes:

  • Property held in joint tenancy with another person. Property is held in joint tenancy if 2 or more people share ownership of that property. Real estate is often held in joint tenancy. When you pass away, property that you held in joint tenancy with will automatically pass to the surviving co-owner or co-owners.
  • Living Trust. If you had transferred property to a living trust during your lifetime, upon your death that property will be transferred to the beneficiaries you designated in the trust.
  • Life Insurance. Proceeds of a life insurance policy will go to the beneficiaries you designated in the life insurance policy documents. An exception to this rule is if you name your estate as the beneficiary of the insurance policy.
  • Retirement Plans. Money in a pension plan, IRA, 401(k) plan, or any other type of retirement plan will go to the beneficiaries you named. If you are married, your spouse is by law your designated beneficiary. However, you can name alternate or secondary beneficiaries how will receive the proceeds of the retirement plan should your spouse or other primary beneficiary not survive you.
  • Payable-on-Death Account. If you have money in a payable-on-death (POD) or a transfer-on-death (TOD) bank account, whatever money is left in the bank account upon your death automatically goes to the POD or TOD payee. However, the person who you name as the payee has no rights to the bank account prior to your death.
  • Inter Vivos Gifts. Any gifts that you give to another person before you die is not subject to your will. For example, if in your will you leave your car to your nephew, but a few weeks before you pass away you give the car to your niece, the car is no longer a part of your estate and your nephew will have no claim to it.

Because in most cases property that is passed outside of a will is passed based on a beneficiary designation, it is important to regularly review your beneficiary designations and update them if necessary.

Executing a Will

Under New York law in order for a will to be valid certain formalities must be followed. It must be in writing, signed by you at the end, and witnessed by at least two people. NY EPTL § 3-2.1(a).

In addition, at the time the will is executed, you must not be mentally incapacitated or under duress. In In the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the testamentary capacity of the testator was challenged. The judge noted to prove that the testator did not suffer a mental incapacity at the time of making the will, it must be shown that the testator understood the nature and consequences of executing a will, what property he or she owned and its value, and who his or her family members were. It does not matter if you suffer from a mental incapacity at the time of your death, as long as you had the mental capacity to make a will at the time you executed your will.

Administration of Your Estate

When you create a will, you will designate the executor. Once drafted and executed, the executor should retain a copy. Upon your death the executor can then begin the process of estate administration by taking your will to the New York Surrogate's Court to request that your will be admitted to probate. Before admitting the will to probate and formally appointing the executor, the judge must verify that the will is valid. The judge will also contact beneficiaries to let them know about the will.

Once a will is permitted to go to probate, the steps to administering the estate are as follows:

  • Inventory the Estate. One of the first jobs of the executor is collect, inventory and appraise the estate assets. Assets may include almost anything such as cash, securities, real estate, vehicles, and personal property.
  • Pay Estate Bills. The executor then must pay estate debts using assets of the estate. Estate debts and expenses include the costs related to administering the estate, your funeral expenses, estate debts and taxes, and other claims against the estate. If there are outstanding claims such as lawsuits, the executors must resolve them.
  • Distribute Estate Property. Once all legitimate claims and debts are paid, the executor then must distribute the remaining estate property to your beneficiaries according to the terms of your will.

The probate process may be slowed if the executor has difficulty finding beneficiaries and needs to use an heir finder. It may also be slowed if there is a will contest or any type of estate litigation.

Intestate Succession

If you die without a will or your will was not properly executed, the consequence will be that your property may not be distributed according to your wishes. Instead, it would be distributed to your heirs according to New York's rules on intestate succession. NY EPTL § 4-1.1. Furthermore, if you have not named someone to be the guardian of your minor children and there is not a relative willing or able to care for them, it is possible that your children will end up in foster care. These are consequences that can easily be avoided by having a properly executed will.

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. However, if your will is well drafted and executed according to the requirements of New York law, there is less likely to be unnecessary delays during the probate process. In addition to having a will, consult a Nassau County Will Lawyer about the benefits of also other estate planning tools that may allow a speedier distribution of assets. To learn more about writing a will, trust, and other estate planning tools, contact Stephen Bilkis and Associates. 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.

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