and Your Family
Suffolk County Last Will and Testament
Your last will and testament is the linchpin of your estate plan. While depending on your personal and financial situation, you may or may not benefit from other estate documents such as a trust, everybody should have a will. A last will and testament is a legal document that sets forth your wishes regarding the distribution of your estate's assets and the care of your minor children once you pass away. A will is an important document as it gives you sole discretion over the distribution of your assets. Without a will these decisions will be based on New York law. In addition, from a practical standpoint, creating a will also minimizes tensions among family members who might otherwise battle over who gets your property. If you prefer to leave all or part of your estate to a university, museum, or charity, with a will you can direct that your assets be transferred to that institution or organization upon your death. To make sure that your intentions are clearly stated in your will and to make sure that your will is properly executed, it is vital that you contact an experienced Suffolk County last will and testament lawyer who understands how to draft a will that will meet your needs and ensure that it is executed according to the requirements of New York law.Purpose of a last will and testament
While the primary purpose of a will is for you to distribute your assets according to your wishes, there are other goals that a will can accomplish.
- Name executor. The executor is responsible for ensuring that your estate is settled and distributed according to your wishes.
- Distribute property. With your will you can ensure that your property ends up in the hands of the people you want to have it.
- Provide for family members. With your will you can make sure that your family is provided for in the manner of your choosing.
- Disinherit certain family members. With your will you can choose to disinherit those who may otherwise be entitled to your property.
- Appoint guardians. With your will you can name the person or persons who you want to care for your children in the event you pass away while they are still minors.
- Create testamentary trusts. With your will you can create trusts to hold the property of your minor children, disabled loved ones, or anyone else.
New York has specific requirements that must be followed in order for a will to be valid. In order to make a will, you must be at least 18. The vast majority of young people do not have wills. While it may seem morbid to think about death at the young age of 18 or 21, it is smart to start developing an estate plan early on. Unfortunately, young people do pass away and many young people pass away leaving substantial assets.
In addition, you must not be mentally incapacitated. The law requires that testators be “of sound mind and memory” at the time the will is executed. If the testator does not understand the extent of his (or her) estate, who his heirs are, what it means to write a will, and the impact of that specific will, the will would not be valid. The will must be in writing and you must sign it at the end. While in some jurisdictions oral wills are valid, in New York they generally are not. Under New York Estate, Powers, and Trust Law § 3-2.1(a)(4), your will must be witnessed by at least two people. The witnesses must be qualified and they must witness you sign the will, or you must acknowledge to them that you 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.
When a will is filed with the Surrogate’s court, there may be objections to the validity of a will. One of the more common grounds for objecting is that the testator did not have the mental capacity to execute the will. The evidence of lack of testamentary capacity is typically the fact that the testator suffered from a psychological disorder such as a traumatic brain injury or some type of dementia. However, a person who has a diagnosed psychological disorder may still have the cognitive ability to execute a will. As an experienced Suffolk County last will and testament lawyer will explain, whether a testator has the mental capacity to make a will is based on his (or her) mental state at the time he created the will. In In re the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the decedent suffered bouts of psychiatric problems around the time that he executed his will. However, there was no evidence that the testator did not have testamentary capacity at the time the will was executed. The court concluded that all that is required for there to be testamentary capacity is for the testator to experience a "lucid interval" during which time the will is executed. Similarly in In the Matter of the Estate of Rose McCloskey, 307 A.D.2d 737 (2003), the court concluded that although the testator suffered from depression, affective disorder, dementia and other disorders, there was no evidence that she lacked testamentary capacity when the will was executed.
Other common grounds for contesting a will include duress, undue influence, and fraud.Types of wills
There are a number of different types of wills that you may use, depending on your personal circumstances.
- Pour-over will. A pou- over will is used in conjunction with a trust. The testator’s last will and testament directs that instead of his assets going to specific people or institutions, they are to be distributed to or "poured over" into a trust.
- Holographic will. A holographic will is a will that is handwritten by the testator and is not witnesses. This type of will is generally not accepted in New York. The exception to this general rule is where the holographic will is made by a testator who is a member of the armed forces during a time of conflict, is traveling with the armed forces, or who is a mariner at sea. The only other instance that a holographic will will be probated in New York is if it was executed in another jurisdiction that allowed holographic wills and the testator was a resident of that jurisdiction at the time it was executed.
- Nuncupative Will. A nuncupative will is a will that is spoken before witnesses. It is also referred to as an oral will. Like a holographic will, an oral will will not typically hold up court. In fact, most states do not recognize nuncupative wills. However, New York does. Like a holographic will, if the oral will is made by a testator who is a member of the armed forces during a time of conflict, is traveling with the armed forces, or who is a mariner at sea, it will be considered valid.
- Codicil. A codicil is not a last will and testament, but is an amendment to a will. If you already executed will and need to make changes, a codicil is a way to do so without drafting an entirely new will. However, a codicil must be executed with the same formalities as a will. If you need to change your will, a codicil I one way. However, as an experienced Suffolk County last will and testament lawyer will explain, many people opt to simply execute an entirely new will. Doing so will revoke the prior will.
- Living will. While some may think that a living will is a type of will, it is not. It is an advance health care directive in which you set forth your wishes for medical treatment in the event you become incapacitated and cannot speak for yourself.
If a testator does not execute a will, then his property will go to his relatives who under New York law are considered to be his legal heir. Generally this means that his property will go to his surviving spouse and children. However, in the absence of a surviving spouse or children (or grandchildren), the testator’s property will go to other relatives such as the testator’s parents, siblings, grandparents, aunts, or uncles. New York’s intestate succession statute lists to order in which certain classifications of relatives would be entitled to inherit. To learn more about intestate succession, contact an experienced last will and testament attorney in Suffolk County.
It is important to understand that only relatives can inherit under intestate succession. Friends, business associates, and charities will not be entitled to inherit unless you include them in your will.Probate
Before your assets can be distributed to the beneficiaries you designate in your will, your will must go through probate. Probate is the process during which your will is proved. It is typically initiated by the testator's executor, when he or she presents the testator’s will to the Surrogate's Court. The court will review the will to ensure that it was executed in compliance with New York law. If the court determines that will is valid, then the Surrogate's Court judge will issue the executor a order called “letters testamentary” officially appointing the executor and giving him or her full authority to manage your estate.
Your executor will then go about the business of settling your estate. Estate administration includes gathering and inventorying your assets, paying your final debts, resolving claims, and ultimately distributing your property to your beneficiaries.Contact the Law Offices of Stephen Bilkis & Associates
A last will and testament is an important piece to your estate plan because it is not only document that, if drafted properly, can ensure that none of your property is subject to intestate succession. To ensure that you will and other estate documents are property drafted, contact an experienced last will and testament attorney serving Suffolk County at the Law Offices of Stephen Bilkis & Associates. We are here to help. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Bronx, Staten Island, Nassau County, Brooklyn, Manhattan, Queens, Long Island, and Westchester County.