New York City Last Will and Testament Lawyer

A last will and testament, commonly referred to as a will, is a legal document in which you leave instructions as to who should receive your property once you pass away. In order for a last will and testament to be valid, it must be written consistent with New York's estate planning laws. With a will you provide instructions as to how you want your estate to be distributed once you pass away. If you do not leave a will, or if you leave a will that is not valid because it is not in compliance with New York law, then you will have died intestate. That means that your estate will be distributed not according to your wishes, but according to New York's intestacy laws. In order to avoid an intestacy problem, it is best not to put off writing a will. As long as you are at least 18 years old and are of "sound mind and memory" you can make a will in New York. To create a will and other estate planning documents that are specifically tailored to accomplish your personal goals, contact an experienced New York City Last Will and Testament Lawyer to guide you through the process.

Why have a Last Will and Testament?

While there are several reasons to have a last will and testament, the most important reason is to retain control over what happens to your estate once you pass away. When you write a will you can decide who gets what portion of your estate. In the absence of a will the State of New York decides the fate of your property based on the laws of intestate succession. In other words, the State of New York will write a will for you. Under New York laws of intestate succession, your primary heir is your surviving spouse. If do not have children your spouse will automatically get our entire estate. If you also have children, your spouse will still get more than half of your estate. If you pass away without a spouse or children, then the law states that your property will go to other blood relatives in a specific order. NY EPTL § 4-1.1

  • Survived only by spouse. If you are survived only by a spouse your surviving spouse will inherit 100% of your estate.
  • Survived by spouse and issue. The term "issue" means children. If you are survived by both a spouse and children, then your spouse will inherit the first $50,000 of your estate, plus 50% of the residue, meaning balance of your estate. Your children will share equally in the remaining 50% of your estate.
  • Survived by issue. If you are survived by children but no spouse, then your children will all share in your estate equally.
  • Survived by grandchild. If any of your children predecease you, but leave children, then your grandchildren will receive your child's share.
  • Survived by parents. If you are survived by one or both of your parents, but not by a spouse, children or grandchildren, then your parents will share equally in 100% of your estate.
  • Survived by siblings. If you are survived by siblings but not by a spouse, children, grandchildren, or parents, then your siblings will share equally in 100% of your property.
  • Survived by grandparents. If you are survived by one or more of your grandparents but not by a spouse, children, grandchildren, parents, or siblings then your property goes to your grandparents as follows. 50% to your paternal grandparents and 50% to your maternal grandparents.
  • Survived by aunts and uncles. In the case where your estate would have gone to your grandparents, if neither of your paternal grandparents survive you, then their share will go to your paternal aunts and uncles. Similarly, if neither of your maternal grandparents survive you, then their share will go to your maternal aunts and uncles.

Keep in mind that without a will no portion of your estate will go to non-relatives such as good friends or business associates even if you wanted to leave them bequests. Furthermore, under the laws of intestate succession none of your property will go to entities such as a charity or religious organization.

What are the requirements for making a will?

Simply explaining to your family members what you want to happen to your property once you pass away is not enough to make a will, neither is writing your wishes on a piece a paper and giving it to your family or attorney. Writing and executing a will is a formal process and must be done according to the requirements of New York law. Otherwise, your will may be declared invalid and may not be probated.

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).

Whether you have testamentary capacity to make a will is based on your mental state at the time you executed the will. For example, 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 is the process for distributing my assets?

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. The steps in the probate process include:

  • Take Control of Assets. One of the first jobs of your executor is to take control over your assets and inventory them. Estate assets may include bank accounts, investment accounts, real estate, artwork, antiques, jewelry, and other personal property.
  • Managing the Estate. While the ultimate goal of probate administration is to distribute your assets to your beneficiaries doing so will take some time. In the meantime your executor must manage the assets that remain in your estate. This may involve making sure that property is secure, paying estate bills such as utility bills or credit card bills. It may also involve collecting money owed to you, or if you owned a business, temporarily running it.
  • Pay Estate Taxes. One of the responsibilities of the executor is to pay estate taxes. If necessary, the executor can hire an attorney or accountant to help calculate any estate taxes that are due. In addition, your executor is responsible for filing your final tax return. If you owe taxes, your executor will pay them out of your estate's assets. If a refund is due, it will be added to the estate and ultimately be passed to the beneficiaries.
  • Closing the estate. After all estate debts are paid, claims are resolved and taxes are paid, the executor must provide the Surrogate's Court with an accounting of the estate showing all any income earned or disbursements made by the estate after your death.
  • Distributing Estate Assets. The last step in the administration process before the estate is closed is distributing the estate assets. Prior to the final distribution of assets, small allowances can be given to your surviving spouse, minor children and others who relied on you for support. In general, however, no significant assets will be distributed until debts paid and all other estate issues are resolved.

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 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:

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