New York City Will and Estate Lawyer

A will is an important estate planning document. A will allows you to let the world know what you would like to happen to your estate once you pass away. You can leave specific pieces of your property such as your home, your vehicle, or your bank account to specific people you care about such as your spouse, your children, your siblings, your best friend, or your alma mater. You can even choose to specifically exclude certain relatives from getting any part of your estate once you pass away. However, to make sure that your wishes for what happens to your estate are followed, it is important to understand what property is part of your estate and what property will be considered part of your probate estate once you pass away. In order to make sure you make a will that is both consistent with your goals and compliant with the laws of New York, it is critical that you work with an experienced New York City Will and Estate Lawyer who will work closely with you to help ensure that your property goes to the people of your choosing.

What are the requirements for making a will in New York?

Creating a will is an important part of estate planning. However, if you do not properly write and execute your will then all or part of your will be invalidated, and your wishes for how your estate is to be distributed may not be fulfilled.

  • Age and mental capacity requirement. In order for a will to be valid in New York you must be at least 18 years old and your must be of sound mind and memory. NY EPTL § 3-1.1
  • Signature requirement. In New York a will must be signed by the testator. If the testator is physically unable to sign the will, another person may sign the will at the direction of the testator and in the presence of the testator. If another person signs for the testator, that person must also sign the will in his own name. An unsigned will is invalid.
  • Witnesses. A will must be signed by the testator in the presence of at least two witnesses, or the testator must acknowledge his signature to the witnesses. The witnesses must also sign the will. A witness should not also be a beneficiary as any gift left to a beneficiary who is also a witness will fail.
  • Writing. New York law requires that a will must be in writing in order to be valid. The only exception to this rule is a nuncupative will. A nuncupative will is an oral will that is legally enforceable only under very limited circumstances.
What are the different types of wills?

While all wills are designed for the general purpose of disposing of your property upon your death according to your wishes, your specific goals and personal situation may require the use of a will that has special features.

  • A pour over will is a will that is used in conjunction with a living trust. Provisions in a pour over last will and testament will provide that upon your death any property from your estate that is subject to your last will and testament will "pour over" into the trust. It will then be distributed to the beneficiaries of that trust according to the terms of the trust agreement. In essence, a pour over will serves as safety-net to ensure that any property that was not transferred to your trust prior to your death will be transferred to it upon your death.
  • A holographic will is one that is handwritten by the testator but is not witnessed. It is designed to allow members of the armed forces and mariners at sea to make a will while under conditions do not allow for formalities. If a holographic will is made by anyone who is not a member of the armed forces during a time of armed conflict, a person accompanying the armed forces, or a mariner at sea, then under New York law that last will and testament will not be considered valid. NY EPTL § 3-2.2.
  • A nuncupative will is an oral will that is witnessed by at least 2 people. Because it is oral it is not signed it will only be valid under New York law under the same conditions that a holographic will be considered valid. NY EPTL § 3-2.2.
  • Reciprocal wills are wills created by two people who chose to coordinate their estate planning. If you and another person, such as your spouse, create 2 separate wills that provide that each of you leaves your entire estates to each other, you have made reciprocal wills. Reciprocal wills typically also provide what happens to the estates if both people die at the same time.
  • A joint will is similar to reciprocal wills. Instead of 2 wills, however, a joint will is a single will that is used to provide that the surviving testator receives the other's estate.
What types of property can be distributed with your will?

While most of your property can be passed to others via your will, there is some that will pass outside of your will. Property that is part of your probate estate includes:

  • Real property owned by you individually as well as jointly with others in a tenancy in common. Tenancy in common is a form of concurrent ownership of real or personal property by two or more persons called tenants in common. Each person owns a separate undivided interest in the property.
  • Personal property such as jewelry, home furnishings, clothing, collectibles, and artwork.
  • Debts owed to you such as debts in the form of promissory notes, loans, rents, income tax refunds, mortgages, royalties and stock dividends
  • Gain from a sale of a business
  • Damages from civil lawsuits such as a personal injury lawsuit you filed

There is property that will go to your beneficiaries outside of your will. Even if you attempt to this type of property in your will, the bequest will fail. This this property is not considered to be part of your probate estate. In most cases property that passes outside of a will is property that includes a beneficiary designation as part of that property's documentation. In other cases the property is owned jointly with another person with a right of survivorship.

  • Joint Tenancy Property. Joint tenancy property is property such as real estate that is owned jointly by 2 or more people with a right of survivorship. When one owner of the property passes away, that person's interest in the property is automatically passed to the surviving owners.
  • Life Insurance. Proceeds of a life insurance policy will go to the beneficiaries you designated. An exception to this general rule is where you specifically name your estate as the beneficiary of the insurance policy. In that case the proceeds will be disposed of through your will.
  • Retirement Plans. When you join a 401(k) plan or pension plan at work, or when you open an IRA account you will be required to complete a beneficiary designation form.
  • Payable-on-Death Account. When you open a bank account or an investment account you can choose to complete a form that indicates who should receive the balance of the account upon your death. Doing so will make the bank account a payable-on-death (POD) or a transfer-on-death (TOD) account. While the money in such accounts would normally be a part of your estate that passes through your will, POD and TOD accounts pass outside of your will.

Any property that would normally pass outside of a will may end up as part of your estate that is subject to your will if the beneficiary you designated predeceases you and you did not designate a secondary beneficiary.

What will happen if I do not have a will?

The consequences of not having a will can be quite serious. If you die without a will you will have died "intestate," and your probate property will be distributed not to the beneficiaries that you selected, but to your heirs according to the laws of intestate succession. This means that your estate will not be managed by an executor of your choosing and your property will not necessarily go to the loved ones of your choice. An estate administrator selected by a New York Surrogate's Court judge will be appointed to manage your estate. An estate administrator has duties similar to the duties of an executor. The administrator will have to inventory your estate, pay your estate's debts, and ultimately distribute the remaining assets in your estate to your heirs. However, the critical difference between having your estate managed by your executor and having it managed by a court appointed estate administrator is that an executor is typically a trusted friend or family member who would have your will and at least some knowledge of your family dynamics to inform him or her as to how he or she should manage your estate.

In order for your estate to be settled in the manner of your choosing and avoid the problems related to intestate succession, it is important that your will is drafted an executed in compliance with the laws of New York state. The staff at Stephen Bilkis & Associates, PLLC has years of experience drafting wills for our clients as well as creating other essential estate planning documents such as trusts, living wills, powers of attorney and advance health care directives. We will advise you on the best course of action for your specific estate planning concerns. 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)