Staten Island Will Drafting Lawyer

Your will is one of the most important documents that you will draft. With your will you document exactly what you want to happen with your property once you pass away. You can use your will to provide for your spouse, you children, or a relative who is disabled. You can leave special gifts to your niece and your godchild. You can even leave property to your alma mater or your favorite charity. However, if you do not have a will or if you have a will that is poorly drafted, your wishes may not be fulfilled. Your estate may end up being distributed in a way that you did not intend. Because of the importance of making sure that your will is drafted in a way that your estate planning goals will be met and to ensure that it is also in compliance with New York law, it is important to work with an experienced Staten Island Will Drafting Lawyer who will help you document your wishes in a last will and testament that will withstand the scrutiny of the New York Surrogate's Court when it is probated.

What is a will?

A will, also referred to as a last will and testament, is a legally enforceable document in which you specify how you wish your assets to be distributed once you pass away. In addition, in your will you can nominate someone to be the guardian of your children should you pass away while they are still minors.

Are there different types of wills?

There are several different types of wills. The type of will that you will need depends on several factors including the size of your estate, the needs of the beneficiaries to whom you want to leave gifts, the size of your estate, and your personal situation.

  • Pour Over Will. With a pour over will, upon your death any property that is in your estate that must pass through your will automatically is transferred to your trust. The trustee can then distribute the property to the trust's beneficiaries according to the terms of the trust.
  • Reciprocal Wills. Reciprocal wills are 2 wills made by 2 testators that have similar bequests. Each testator leaves the other testator all of or the bulk of his or her estate. Reciprocal wills are commonly made by spouses or significant others, but can be made by anyone who feels a need to coordinate their estate planning such as business partners or siblings.
  • Joint Will. A joint will accomplishes the same goal as reciprocal wills. It is a single will that is created by two people and provides that that each person would get the survivor's estate. In addition, the joint testators also come to an agreement as to what should happen to common property after the passing of the first testator.
  • Holographic Will. A holographic will is handwritten by the testator, but is not witnessed. Under most circumstances a holographic will would be invalid in New York because it would not have been executed according to the requirements of New York law. However, under a few circumstances a holographic last will and testament will be admitted to probate in New York. If a holographic will is made by a member of the armed forces during a time of declared or undeclared war, by someone who is accompanying the armed forces, or by someone who is a mariner at sea, it will be deemed valid. NY EPTL § 3-2.2. Such a will would become invalid a year after the member of the armed forces is discharged, or 3 years after made by a mariner at sea.
Who should write a will?

Under New York law, any one 18 years or older can legally write a will. Since you do not know what is going to happen in the future, it is a good idea not to put off writing a will. If you want your wishes followed after you pass away, you should write a will. Besides being an adult, the only other requirement for writing a will is that you not be mentally incapacitated.

What if I just tell my family my wishes?

In New York simply telling your family members your wishes will not ensure that they will be carried out. New York has strict laws as to what is required to make a will. If you attempt to make an oral will by simply telling your family your wishes, you will not have made a legally valid will. Without a valid will, the State of New York will determine how your property will be distributed. It will be distributed according to the laws of intestate succession which means that only certain relatives will inherit your property.

What is a beneficiary, executor, and heir?

There are several legal terms that are used in will-making and estate planning. Here are definitions of some of the more commonly used terms.

  • Beneficiary: A beneficiary is a person who you name in your will to receive a portion of your estate.
  • Bequest. A gift left to a beneficiary in a will. Technically the term refers to a gift of personal property. However, it is commonly used to describe any type of gift.
  • Devise. A gift of real property in a will.
  • Estate: All of your property, including both real and personal property.
  • Executor: The person you name in your will to manage your estate and ensure your wishes are carried out after you pass away. An executor is also referred to as a personal representative. A male personal representative is traditionally called an executor and a female, an executrix.
  • Heir: Any person who by statute may be entitled to a portion of your estate in the absence of a will.
  • Intestacy: Dying without a will.
What steps are involved in drafting a will?

1. Decide which property you want to include in your will. The first step in the drafting of your will is to list your major assets such as your house, other real estate, checking and savings accounts, investment accounts, artwork, other collectibles, jewelry, and vehicles. Some assets of substantial value will pass to your beneficiaries outside of your will. Examples of such property includes proceeds of life insurance policies, banking and investment accounts that have a payable on death or transfer on death payee, retirement plans such as 401(k) plans, pension plans, and IRAs, property transferred into a trust, and co-owned property with a right of survivorship.

2. Decide who you would like to receive your property. Write down who you want to get each asset. Some testators leave their entire estate to their spouses. Others split it between their spouses and children. One advantage of a will is that you can leave your property to whomever you want to. On the other hand, if you do not leave a will you have no control over who gets your property. In addition, with a will you can also leave property to organizations such as a charity, a religious organization or an educational institution.

3. Decide who you would like to name as the executor of your estate. The executor of your estate is the person who is responsible for administering your estate and ensuring that your wishes are carried out. The responsibilities of your executor include notifying your creditors and government agencies of your death, inventorying the estate, having the estate appraised, setting up an estate bank account, maintaining estate property until it is distributed, paying estate debts, paying estate taxes, resolving any claims against the estate, and distributing your estate to your named beneficiaries.

4. Choose a guardian for your minor children. If you have minor children when you pass away and the other parent is not available to care for them, in your will you can appoint another adult to rise them. This person is referred to as your children's "personal guardian." The guardian will be responsible for raising your children until they become legal adults. When considering who you want to raise your children if you cannot, there are several questions to think about:

  • Does the potential guardian love your children?
  • Is the potential guardian responsible and up to the challenge of raising your children?
  • Is the potential guardian at least 18 years old?
  • Does this person live far away so that your children would have to move away from their friends and family members ?
  • What is the potential guardian's living situation? Does he or she live in a house with adequate space?
  • Is the potential guardian married or in a stable relationship?
  • Will your children still have easy access to their other relatives?
  • Are the potential guardian's religious and moral beliefs consistent with yours?
  • Is the potential guardian's parenting style consistent with your parenting style?
  • Is the potential guardian healthy enough and fit enough to care for young children?
  • Can the potential guardian afford to raise your kids?
  • Does the potential guardian already have children? If so, do your kids get along with them?

5. Choose a guardian for your minor children's property. The guardian of your children is referred to as the guardian of the person, while the guardian of your children' property is referred to as the guardian of the estate. If you leave assets to your minor children you will need to name someone to manage their assets until they are adults. Consider setting up a trust. Then name a responsible adult to be the trustee. This person could be the same person that you name as your children's personal guardian, or it could be a if different person.

6. Draft your will. In order for your will to do what you want it to do it cannot be oral or via video. It must be written carefully and clearly. Otherwise, provisions in your will may be open to multiple interpretation, exposing your will to a will contest or estate litigation.

7. Execute your will. Furthermore, in order for a will to be valid, New York law requires that you sign the will at the end in the presence of at least two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4). The witnesses must be present when you sign the will. If not, you must acknowledge to each witness that you did indeed sign the will. The witnesses must be adults and should not be anyone you name as a beneficiary in your will. If a witness is also a beneficiary the witness will not be permitted to receive the gift you left him or her in the will. If you fail to properly execute your last will and testament, the Surrogate's Court judge may not allow your will to be probated, or they may be a will contest.

In addition, in order for your will to be valid you must have testamentary capacity at the time you made it, meaning that you must be at least 18 years old and you must be of "sound mind and memory." This means that when you made your will you must not have suffered from a condition that renders you mentally incapable of understanding what it means for you, your estate and your family that you are executing that particular will.

In order to make it less likely that a last will and testament will be successfully challenged you can make it self-proving. A will is self-proving if it includes an affidavit from the 2 witnesses attesting to the facts surrounding the signing of the will. N.Y. SCP. LAW § 1406. If a will is self-proving, the Surrogate's Court judge does not need to go examine the 2 witnesses or review other evidence to determine the validity of the will.

8. Store it and revisit it. Store your will in a safe, yet accessible place. Give your executor a copy of it. Review your will regularly to make sure that it is consistent with your current wishes. As your life evolves, so should your will. For example, major life changes such as marriage, divorce, death, or birth as well as changes in your finances may signal that you need to change some of the terms of your will. In addition, federal and state laws that effect estate planning change. You should check your will to make sure changes to the law have not impacted any of the provisions of your will.

If you need to change your will you can re-write your will completely, or you can amend it using a codicil. If you need to make major changes to your will, it may be a good idea to execute a new will. However, if the changes are relatively minor, you can simply amend your will using a codicil. Keep in mind that a codicil must be executed in the same manner that a will must be executed.

What happens if a will is poorly drafted?

A poorly drafted will can have unintended, even devastating results. For example, if you inadvertently leave out the name of a beneficiary, someone who you really wanted to have your property will not get it. Unclear or poorly written provisions in your will could also lead to lengthy, expensive estate litigation and fights among your beneficiaries or other interested parties.

If your will is not properly executed the Surrogate's Court may determine that it cannot be probated. If that happens, then your estate will be treated as if you did not have a will at all. Your assets will not go to those you intended them to go to, but to people that the state determines should get them based on the laws of intestate succession. The beneficiaries of your last will and testament will be family members such as your spouse, children, parents, and siblings. However, if you wanted to leave a non-relative a gift such as your best friend or an employee, you must have a valid will. Similarly, if you want to leave an organization a donation, you must have a valid will.

No will or a will that is poorly written may cause your family members financial distress and emotional pain. Furthermore, if your will is not drafted clearly, the result may be disputes that lead to estate litigate. Not only will this cause a delay in probate, but it will also drain you estate's assets. To ensure that your last will and testament is properly drafted and executed, it is important for you to work with someone with experience. The staff at Stephen Bilkis & Associates, PLLC is experienced in will drafting and have worked extensively in the New York Surrogate's Court. We will help you make the process as painless as possible. 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)