New York City Wills Lawyer

Making a will is something that everyone should do. When you make a will you make sure that you are in control of what will happen to your assets once you pass away. You can choose which family members, friends, and educational, civic, or religious organizations will receive which portions of your estate. You can also decide who you do not want to receive any portion of your estate. In the absence of a will you give up control of what happens to your estate and put it in the hands of the State of New York. In other words, if you do not write a will, the New York writes for you based on its laws on intestate succession will may not be the same as what you would have drafted for yourself. In addition, with a will you can name the person who you want to raise your minor children in the event that you pass away before they reach adulthood. While the court will make the final decision as to who will become the guardian of your children, it will likely defer to the choice you made in your will. Estate planning, however, is more than making a will. A trust, durable power of attorney, living will as well as other documents may also be important in helping your reach your estate planning goals. To create a last will and testament as well as other estate planning documents that are specifically tailored to accomplish your goals contact an experienced New York City Wills Lawyer to guide you through the process.

Why is it so important to have a will?

A will is an essential estate planning instrument because it is an effective way to control what will happen with your property after you pass away. It will tell everyone what assets will go to whom so that there should be few, if any, disputes over your assets. Your last will and testament will also make it clear who you have selected to be your children's guardian should you pass away while they are still minors, and who should manage their property. However, the best reason for making a will is to make sure that New York State does not determine what happens to your property and what happens to your minor children upon your death. It is better that you make such decisions.

The legal term for dying without having made a valid will is called dying "intestate." If that happens, even if you have otherwise made your wishes widely known to family and friends, if your wishes are not stated in a properly executed will, then New York intestate succession rules will override your wishes. NY EPTL § 4-1.1. The result is that people who you wanted to receive a share of your estate may not receive anything. This is particularly true of they are not blood relatives. Furthermore, your children may end up being cared for by strangers.

For example, in the case of In the Matter of the Appointment of a Successor Guardian for Timothy R.R., 977 N.Y.S.2d 877 (2013), the testator passed away without having named a guardian for her disabled child. As a result a dispute developed among relatives as to who would care for the child. Ultimately the court had to intervene and settle the dispute by appointing a guardian.

New York law has rules as to which of your statutory heirs will inherit your property and in what order of priority. For instance, if you are survived by your spouse but you do not have surviving children your spouse will receive your entire estate. On the other hand if are survived by both a spouse and children then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children. This means that if your estate is worth less than $50,000, your children will receive nothing. Your surviving children will share in 100% of your estate if you pass away without and do not have a surviving spouse. If you do not leave a spouse or children, your entire estate will go to your parents. There are also provisions for when siblings, grandparents, aunts, uncles and cousins will inherit. NY EPTL § 4-1.1. New York intestacy laws do not allow friends or organizations to be your heirs. Thus, if you want to leave a gift to your best friend, a loyal employee, to a favorite charity or to your college, you would have to do so in your last will and testament. Otherwise, they will not inherit.

Are there different types of wills?

There are several different types of wills with unique features. The type of will that you would need to use depends on such factors as your personal situation, your goals, and your financial condition.

  • Pour Over Will. A popular type of will is a pour over will. A pour over will is used in conjunction with a trust. It contains language that states that any asset that is subject to your will "pour over" into your trust. The property will be transferred to the trust's beneficiaries according to the terms of the trust agreement. Before the assets are transferred to your trust, your will must be probated.
  • Holographic Will. A holographic will is handwritten by the testator and is not witnessed. NY EPTL § 3-2.2. Because of proof problems, in New York holographic wills are normally invalid. The exception is when one is made during a time of armed conflict by a member of the United States armed forces, by someone accompanying the armed forces during a time of armed conflict, or by a mariner who is at sea.
  • Reciprocal Wills. If you and another person such as your spouse, create 2 separate wills with complementary provisions that provide that each person leaves their entire estate to the other person, you have made reciprocal wills. Reciprocal wills typically also provide what happens to the estates if both people die at the same time. Reciprocal wills must be executed according to New York law in order to be valid.
  • Joint Will. A joint will has a similar goal as reciprocal wills. It is a single will that is created by 2 testators. The will provides that each testator would get the survivor's estate.
  • Codicil. A codicil is an amendment to an existing will. Codicils are used to add, change or revoke portions of a previously executed will. Codicils are generally only used to make minor or uncomplicated changes to a will. If the change is major or complicated, then it may be wise to execute a new will. Otherwise, the codicil may end up causing confusion and ultimately leading to probate litigation.
What will happen to my will when I die?

When you pass away, in order for your assets to be distributed to the beneficiaries you name in your will, your will must first go through the probate process. This means that your will must be located and a petition must be filed with New York Surrogate's Court in the county in which you lived at the time of your death and file a Petition. While the executor is often the person to file the probate petition, it can be filed by any interested party such as a beneficiary or heir. The petition must include a copy of your will and any amendments, a certified copy of your death certificate, and the filing fee. On the petition you will have to include the names and addresses of the beneficiaries as well as the approximate value of the estate.

A New York Surrogate's Court judge will review the will to determine if it valid. To be valid New York wills must be signed by the testator in the presences of 2 witnesses. If the will shows this, the judge will admit the will to probate and issue the person you named as executor in your will Letters Testamentary. In doing so, the executor is given the legal authority to begin managing your estate and ultimately distributing your assets to your beneficiaries. However, if a beneficiary or other interested party feels that your will is not valid, that person can initiate a will contest and delay probate.

Managing the estate involves a number of steps:

  • Locating Assets. Your executor must find you assets. This may be as simple as your executor going to your home and inventorying its contents. It may also mean finding bank and investment accounts. You executor's job may become somewhat sticky if your executor must retrieve assets that have been loaned to family and friends. In fact, dispute may arise as to whether or not you gave the asset away or if you loaned it. If you have property in another state, the executor's job becomes more complicated as it may be subject to probate in that state.

    Not all of your assets are subject to your will and probate. Assets such as proceeds of life insurance policies, retirement plans such as pension plans, 401(k) plans and IRAs, property that you own jointly with others, and property that you placed in a trust while you were still living will pass to the beneficiaries outside of your will.

  • Appraising Assets. Before your executor will be able to pay your debts and distribute your asset, your executor will have to figure out the exact value of your estate. The values of a vehicle, bank account or investment account are fairly straightforward to determine. However, other items such as jewelry and collectibles or a small business may require that the executor hire someone to give an appraisal. If your estate does not have enough assets to pay your estate's debts, then not only will some of creditors not be paid, your beneficiaries will not receive anything.

  • Paying Creditors and Final Bills. Your executor will then pay your estate's debts. Your executor must notify known creditors of your death as well as publish a notice so that anyone who has a claim against your estate will be put on notice. Creditors and claimants have 7 months after the date given in the published notice to file claims against the estate. There may be claims that are filed against the estate that your executor determines are not valid. If your executor refuses to pay a claim, the claimant may initiate probate litigation against the estate in an effort to get paid.

    In addition to any bills that you incurred before your death, estates debts also may include funeral expenses and expenses related to managing your estate. For example, if the executor needed to hire an appraiser, attorney, or accountant, their fees would be paid by the executor from estate assets.

  • Filing and Paying Taxes. Your executor must file your final federal, state, and local tax returns and pay any income taxes owed. He or she must also file estate income tax returns, if required. If you are audited, your executor is responsible for resolving the audit.

  • Closing the Estate. Before your executor is legally permitted to distribute your assets to your beneficiaries your estate must be closed. The executor will complete a formal accounting of all estate transactions and file it with the Surrogate's Court. Once the court approves the accounting the estate is closed and the executor may distribute assets to the beneficiaries according to the terms of your will.

  • Distributing Assets. The transfer of assets to beneficiaries is usually not very difficult. For cash gifts the executor will simply write a check to the beneficiary from the estate's bank account. For tangible personal property such as jewelry, clothing or household furnishings, your executor will simply turn it over to the appropriate beneficiary. If the property is real estate, the executor must make sure that the title to the property is properly transferred to the appropriate beneficiary..

    In some cases the executor may have difficulty locating a beneficiary. The executor must make a reasonably diligent effort to locate a missing beneficiary, including possibly employing an heir finder. If the executor cannot find a beneficiary and the property remains unclaimed, the property will eventually be distributed to the missing beneficiary's statutory heirs according to New York's intestacy laws. EPTL § 4-1.1. If the named beneficiary has no statutory heirs, then the property will become the property of New York State according escheat rules. N.Y. ABP. Law § 1215.

What types of problems may arise during probate?

Probate can be a long and expensive process. At a minimum probate will take 9 months. Circumstances such as a will contest or other estate litigation, estate tax issues, or heirs who are difficult to locate can significantly extend probate and negatively impact the value of the estate. Nonetheless, there are estate planning strategies that can positively impact the amount of time that it will take for your beneficiaries to receive property that you leave them such as transferring property to a living trust or adding a payable on death designation on a bank account.

Making a will is an important step in making sure that your last wishes are fulfilled. However, in order for your will to be probated, it must be drafted clearly and executed according to the requirements of New York State. The experienced staff at Stephen Bilkis & Associates, PLLC will not only help you draft a last will and testament, but we will also explain to you about additional estate planning documents that you may need to reach your specific 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:

1.800.NY.NY.LAW (1.800.696.9529)