Suffolk County Holographic Will Attorney

A will is an estate planning tool that dictates the manner in which your assets will be distributed after your death. It also appoints an executor who will be responsible for managing your estate. If you have minor children, you can indicate in the will who will be their guardian. In order to be valid, New York law requires a will to be executed with certain formalities. NY EPTL § 3-2.1. If those formalities are not followed a court may find that the will is invalid and refuse to follow its terms. However, there are several different types of wills that require different formalities. A holographic will is one this is entirely handwritten and signed by you as the testator. It is not executed using the formalities such as witnesses, that are normally required for a will to be properly executed. Under New York law, there are special rules that determine whether or not a holographic will will be accepted as legally sufficient. In order to ensure that your will as well as any other estate planning document that you draft is legally sufficient, it is wise to consult an experienced Suffolk County Holographic Will Attorney who will explain to you what is required to draft and execute a valid will in New York.

Requirements for a Valid Will in New York

New York law has very specific requirements that must be followed in order for a Surrogate's Court judge to find that a will is valid and admit it to probate. Generally, the will must be signed at the end by the testator, or by another person at the direction of the testator. There must also be two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4) The witnesses must be present when the testator signs the will, or the testator must acknowledge to each witness that he or she did indeed sign the will. If these formal requirements are not followed, the Surrogate's Court judge may refuse to admit the will to probate, or the will may be subjected to a will contest.

Holographic Will. An exception to New York's formal requirements of execution is the holographic will. A holographic will is a last will and testament that has been entirely handwritten by the testator and was not attested to by witnesses. NY EPTL § 3-2.2. The purpose of New York's requirements that two witnesses observe the testator sign the will is to reduce the possibility of fraudulent wills being admitted to probate. A holographic will poses proof problems since no one witnessed the testator drafting it or signing it. However, because of the unique circumstances members of the armed forces may find themselves in, a holographic will will be considered valid only in the limited circumstance where it is written by a member of the United States armed forces or someone accompanying a member of the armed forces during a time of conflict. A holographic will becomes invalid 1 year after the testator ceases serving with the armed forces.

This means that if you are not in the armed forces and decide to jot down on a piece of paper who gets your property after you pass away, you will have failed to create a legally effective holographic will.

Nuncupative Will. Another type of will that is sometimes valid even though not created and executed according law is a nuncupative will. A nuncupative will is an oral will. Like a holographic will, in New York a nuncupative will is only valid when made by a member of the United States armed forces during a time of conflict, someone accompanying a member of the armed forces, or a mariner at sea. In order to be valid under those circumstances a nuncupative will must be witnessed by at least two people. NY EPTL § 3-2.2.

Nuncupative wills and holographic wills allow individuals whose lives are in peril to make a will without the normal formalities. Those who are in the military in the middle of a conflict do not have the luxury of being able to draft a will on a computer. On the other hand people who are not in the military during a time of conflict typically have the time and access to the resources to draft and execute a will in the manner required by New York law.

Other types of wills. In addition to holographic wills and nuncupative wills there are other types of wills that while created with specific terms and features, still must be executed according to the standard requirements of New York estate law.

For example, a joint will is a single will that is covers the estates of two or more people. This type of will is often by spouses. Typically testators who make a joint will have decided to dispose of their estates in the exact same way. The spouse that passes away first leaves the bulk of his or her estate to the surviving spouse. The testators agree what would then happen to the remainder of the estate when the second spouse passes away. If the couple have children, the remainder may be left to the children. Or, the couple may agree that the remainder will go to a charitable organization. Sometimes such wills are crafted in such a way that should the surviving spouse remarry, he or she would not be able to leave the remainder of the estate to the new spouse.

Spouses can accomplish the same goals with mutual wills. Mutual wills, however, involve two people making separate wills, but the terms are similar. Each will will provide that the testator leaves the bulk of his or her estate to the other spouse. Other terms of the will be also be complementary.

While joint wills and mutual wills are often made by spouses, they can be made by any two people such as unmarried couples, siblings, business associates, or any two people who decided that they want to coordinate certain aspects of their estate planning.

Consequences of not having will

One of the reasons that New York permits holographic and nuncupative wills is to ensure that people in perilous conditions do not pass away without making a will. The consequences of doing so are that your estate may not be distributed in the manner that you prefer. If you do not have a will, the court will determine how your estate is to be distributed based on New York intestacy laws. NY EPTL § 4-1.1. In other words, you have no control over who gets your property.

Under intestacy your spouse and your children will be taken care in that the law requires that your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. The remaining portion of your estate will be distributed in equal shares to your children. If you do not have children, your spouse will get your entire estate, while if you do not have a surviving spouse but you have children, your children will share equally in your entire estate.

If you do not have a spouse or children, then you estate will go to your parents, siblings, followed by other blood relatives, depending on who survives you. If you wanted to leave property to people who are not relatives such as an army buddy, a best friend, an employee, or a charity, you would have to leave a will, as this is not possible under the laws of intestate succession.

While a court will admit a holographic or a nuncupative under specific circumstances, once those circumstances no longer exist, these types of wills lose their validity. If such a will is made by a member of the armed forces, it will become invalid one year after his or her discharge from the armed forces. If a nuncupative or holographic will is made by a person who accompanies armed forces, it will become invalid one year from the time he or she has ceased accompanying such armed force. If made by a mariner at sea, the will becomes invalid three years the time will was made. NY EPTL § 3-2.2(c)

If the testator who made a valid holographic or nuncupative will fails to make a new will once the holographic or nuncupative becomes invalid, then when upon passing away that will will be ignored and his or her estate will pass based on the laws of intestacy.

Keep in mind that without effective estate planning, there are additional consequences in addition to your assets not being left to people of your choosing. If you do not specify in a will who should be the guardian of your minor children, they may end up being raised by a person that you would not want to raise them. If you do not plan for the possibility that in the future you may become incapacitated by an accident or illness, then the court may have to step in and appoint a conservator to make decisions about your healthcare and finances.

The best way to maintain control over what happens to you, your property, your finances and your family members is to not put off making a comprehensive estate plan.

Under most circumstances holographic wills and nuncupative wills are not valid in New York. If you have a handwritten will or an oral will, even if you have witnesses in order to ensure that your wishes will be followed after you pass away it is critical that you draft and execute a new will that is in compliance with the standard requirements of New York Estates, Powers and Trusts law. The staff at Stephen Bilkis & Associates, PLLC has extensive experience drafting wills and other estate planning documents and 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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