Suffolk County Will and Estate Lawyer

Estate planning is an important part of securing both your personal and financial future, but also for the futures of your family members and others your care about. A well designed estate plan can both protect your property while you are living and make certain that your estate is distributed to your loved ones according to your wishes. An important part of any estate plan is a last will and testament. A will is a legal document through which you memorialize your preferences as to how your estate should be disposed of upon your death. While a will is an essential estate planning document, as you create your estate plan there are other documents that you should also consider such as a trust and a durable power of attorney. In order to ensure that your estate plan is designed to meet your family and financial goals, contact a Suffolk County Will and Estate Lawyer who will be able to help you create not only a will, but any other estate planning document that you need to achieve your goals.

Why create a will?

A will is a legal document in which you specify who you would like to receive your assets after you pass away. You can be very specific as to which property in your estate should go to which family member or friend. In your will you can also state how your minor children should be cared for in the event there is not a surviving parent to care for them. For example, in your will you can identify who should be their guardian. You can also set up a trust in your will to hold property that you leave to minor children. The executor who you name in your last will and testament will be responsible for managing your estate, distributing your assets to your beneficiaries and generally ensuring that your wishes are followed.

What are the different types of wills?

While all wills are designed for the general purpose of distributing your assets upon your death according to your wishes, your specific goals and family situation may require the use of a specific type of will. There are a number of different types of wills including a pour over will, joint will, reciprocal wills, holographic will, and nuncupative will. The type of will that you should use depends on your personal situation, your goals, and your financial condition.

A pour over will is used in conjunction with a trust. Upon your death any property that will pass through your last will and testament will "pour over" into the trust. If you have already created a trust and transferred property to it, a pour over will can serve as a safety net to ensure that any assets that for whatever reason were not transferred to your living trust prior to your death will be transferred to the trust when you pass away.

A holographic will is designed to allow members of the armed forces and mariners who are at sea make a last will and testament while conditions do not allow for formalities. A holographic will is handwritten by the testator. To be valid, witnesses are not required. However, the testator must be member of the armed forces or a person accompanying the armed forces during a time of conflict. A mariner who is at sea is also permitted to execute a holographic will. NY EPTL § 3-2.2.

A nuncupative will is similar to a holographic will in that only members of the armed forces, those accompanying members of the armed forces or mariners at sea can create and valid nuncupative will. A nuncupative will is oral and must be witnessed by at least 2 people. NY EPTL § 3-2.2.

Reciprocal wills and a joint will have similar features. With a reciprocal will, you and another person, such as your spouse, create individual wills that provide that each of you leaves the bulk of your entire estate to the other. Small amounts or sentimental property may be left to other people, but the bulk of the assets in the estate go to the other person. Reciprocal wills generally also provide for what happens to the remaining estate once the second person passes away. For example the reciprocal wills may both state that you and your spouse get all of each other's estate. When the surviving spouse passes away, then the remainder of the estate goes to your children. The surviving spouse would not be able to change his or her will to leave the remainder of the estate to someone else. Similarly, with a joint will, you and another person create a single will that provides that each person would get the survivor's estate.

If after executing your will you need to change it you can execute a completely new will. Another option is to amend the original will with a codicil. In order for a codicil to be valid it must be executed in the same way a will must be executed. If the changes to your will are extensive or complex, it might be a good idea to execute a new will and revoke the old one. In order to revoke a will you must execute a new will, indicate in writing that your intention to revoke the will, burn or some other way destroy the will. NY EPTL § 3-4.1. If you revoke your will the codicils to that will be revoked as well.

What types of property passes outside of a will?

There is property that by law passes outside of the will. Even if you attempt to include is as a bequest in your will, such a bequest will not be valid. In most cases property that passes outside of a will is a type of property that includes a beneficiary designation as part of that property's documentation. In other cases the property is owned jointly with another person with a right of survivorship.

  • Joint Tenancy Property. Joint tenancy property is property that is owned jointly by 2 or more people. When one owner of the property passes away, that person's interest in the property is passed to the surviving owners. Real estate is often held in joint tenancy.
  • Life Insurance. Proceeds of a life insurance policy will go to the beneficiaries you designated. An exception is where you specifically name your estate as the beneficiary of the insurance policy. In that case the proceeds will be disposed of through your will.
  • Retirement Plans. When you open an IRA, or join a 401(k) plan or pension plan at work, you will be required to complete a beneficiary designation form. Typically you will provide a primary beneficiary as well as a second beneficiary. You can also name co-beneficiaries and the percentage that each person should receive.
  • Payable-on-Death Account. When you open a bank account you can complete a form that indicates who should receive the balance of the bank account upon your death. Doing so will make the bank account a payable-on-death (POD) or a transfer-on-death (TOD) bank account. While the money in bank accounts would normally be a part of your estate that passes through your will, POD and TOD accounts pass outside of your will.
What are the consequences of not having a will?

The consequences of not having a will can be quite serious. If you die without a will, you will have died "intestate." Your estate will not be managed by an executor of your choosing and your property will not necessarily go to the loved ones of your choice. Should you die intestate, the New York Surrogate's Court will appoint an administrator to manage your estate. An estate administrator has duties similar to the duties of an executor. He or she will have to inventory your estate, pay the debts of the estate, and then distribute the remaining estate assets to your heirs. However, the critical difference between having your estate managed by your executor and having your estate managed by a court appointment administrator, is that an executor is typically a trusted friend or family member who uses your will to guide how he or she manages your estate. An administrator , on the other hand, does not have a will to use as a guide. If, for example, you want to leave property to a close friend or to a charity, without a valid will your wishes will not be honored or even known. Instead, the administrator will distribute your estate to your heirs as defined by New York intestate succession rules. NY EPTL § 4-1.1.

Potentially even more devastating are the consequences for your minor children if you do not leave a will with instructions as to their care, such as naming who should be their guardian. The Surrogate's Court will seek to find a family member who is willing and able to care for the children. However, it is also possible that the children end up in foster care.

Once you make your will and other estate planning documents, it is important to revisit them periodically to make sure that they remain consistent with your intentions. Changes in your family situations such as a birth of a child or a grandchild, divorce, marriage or the death of a beneficiary may require you to make changes to your will or to a trust, or make changes to beneficiary designations for life insurance or retirement plans.

A will is a critical part of any estate to any estate plan. In order for it to be effective, it must be well drafted and property executed. The staff at Stephen Bilkis & Associates, PLLC has years of experience drafting wills, trusts, powers of attorney, advanced health care directives and other estate planning documents. We will advise you on the best course of action for your specific estate planning concerns. 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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