New York City Will and Testament Lawyer

A will and testament is the most common, and arguably the most important estate planning document. A will and testament is typically referred to as simply a "will." The purpose of a will is to leave instructions as to what should happen to your property once you pass away. You can decide what property to leave to your spouse, each of your children, other relatives, and close friends. You can even choose to leave property to educational institutions, civic organizations, and religious organizations. With a will you can also nominate someone to serve as your children's guardian if you should pass away while they are still minors. In the absence of a will you lose control over what happens to your estate and who will be appointed as the guardian of your children. While some wills are fairly simple, other wills are quite complex. However, whether your will is simple or complex, it needs to be drafted and executed in a way that is consistent with the laws of New York. Otherwise, your will and testament may be considered to be invalid. If you are contemplating making a will, it is important that you contact an experienced New York City Will and Testament Lawyer who will explain to you how a will can help meet your estate planning goals and who will make sure your will is consistent with the requirements of New York law.

What happens if you die without a will?

If you pass away without leaving a valid will the New York Surrogate's Court will appoint an estate administrator to wind up your estate and New York law will determine how your assets will be distributed. Under New York laws of intestate succession your primary heirs are your spouse and your children. However, 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 of priority. NY EPTL § 4-1.1

  • Survived by spouse. If you are survived by a spouse and no children, your spouse will receive 100% of your property.
  • Survived by spouse and children. If you are survived by both a spouse and children, then all share in your estate, with your spouse getting a greater share then your children. Your spouse will get the first $50,000 of your estate, plus 50% of the balance. Your children will share equally in the remaining 50% of your estate.
  • Survived by children. If you are survived by children but no spouse, then they will all share in your estate equally. Your grandchildren (whose parent is your child) will inherit the share that would have been your child's share if that child had not predeceased you.
  • 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 property.
  • Survived by brothers and sisters. If you are survived by brothers and sisters (whole or half blood) but not by a spouse, children, grandchildren or parents, then your brothers and sisters will share in 100% of your estate.
  • 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 entire estate goes to your grandparents. Half would go to your paternal grandparents and the other half to your maternal grandparents.
  • Survived by aunts and uncles. In the case where your estate would have gone to your grandparents, if they do not survive you, their share would go to your aunts and uncles.

New York intestacy rules do not allow for friends or organizations to be heirs. Thus, the only way to leave property to a person who is not a blood relative (other than a spouse), or to an institution or organization is to make a will.

Another consequence of not having a will is that if pass away leaving minor children and the other parent is not available to care for them, in the absence of a will specifying who you want to raise your minor children, the court will choose a guardian for you. Courts look first to family members to name as guardian. If no family member is qualified, willing or able, then the court may place the children into foster care. Even if the court places your children with a family member, the court's choice may not be a choice you would have made. For example, the court may choose a guardian who does not share the same child-rearing values as you, or someone who your children do not know particularly well.

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. In order for your will to be valid, you must have testamentary capacity. Testamentary capacity means that you were at least 18 years old and you were not mentally incapacitated. In the case of In the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the court described a 3 part test for whether or not a testator had testamentary capacity. At the time the will was executed the testator must have understood the nature and consequences of executing a will, the testator must have understood what his or her estate included, and the testator must understand who his or her family members were. It is not relevant that at the time of the testator's death or at some other time the testator was mentally incapacitated.
  • 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. The statute does not mention specific requirements for a person to be a witness. However, ideally the witnesses are not also beneficiaries named in the will, as witnesses are not permitted to also receive gifts in the will. NY EPTL § 3-3.2(a)(1). In other words, an "interested" witness' bequest will fail. The exception to this is if there is a third disinterested witness to the signing of the will.
  • 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 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. For example, if your estate includes a bank account with a $50,000 balance, upon your death and after probate that balance will be transferred to the trust that you set up. It will then be distributed to the beneficiaries of that trust according to the terms of the trust. 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.
  • A codicil is a document that amends a previously executed will. Codicils are typically used to add, change or revoke portions of a will. Codicils should only be use 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.
What happens with my will when I die?

After your death someone will take your will to the Surrogate's Court in the county of your death and submit it along with a petition asking the court to admit the will to probate. The person submitting your will and petition would be your executor, a beneficiary, an heir or some other interested party. Once the judge admits your will to probate, your executor will have the legal authority to manage your estate and distribute your assets. There are several steps that must be completed before your estate can be closed and your assets distributed. These steps include collecting and appraising your property, paying debts owed by your estate, and resolving any claims against your restate. The final step is for the executor to transfer legal title to your property to beneficiaries according to the instructions you provided in your will. The probate process will take at least 9 months and could take more than a year. Factors which may delay probate and distribution of estate assets include estate litigation, estate tax issues, and missing heirs.

What happens if someone objects to my will?

Any interested party may contest the validity of a will. A person is considered "interested" if the person is a beneficiary under the will, was a beneficiary under a prior will, is a statutory heir, or has a claim against the estate. In generally, to successfully challenge a validity of a will, the objecting party must establish, by clear and convincing evidence, that the testator was mentally incompetent at the time the will was executed or was subject to undue influence in the preparation of the will.

A will and testament is essential to any estate plan. However, there are other documents that are also important for a complete estate plan. In order to meet your planning goals and provide for both your future needs and the needs of your family, you may need additional estate planning documents such as a trust, living will and health care proxy. To learn more about estate planning, contact Stephen Bilkis & Associates, PLLC. 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. We serve individuals throughout the following locations:

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