Suffolk County Will Drafting Lawyer
Writing a will may seem as easy as writing down who should get your property after you pass away. However, it is not quite that simple. Your estate planning goals, your personal circumstances, you financial condition, as well as your family situation all dictate what type of will you need and how it should be drafted. If you do not have a will, your property will not necessarily go to the people you want to receive it. Instead, it will go to your heirs according to New York law. The same thing will happen if your will is drafted poorly, or if it is not executed improper. In order for a will to valid, it must be drafted and executed according to New York law. Furthermore, complex financial situations, intricate family relationships will require complex estate planning and will drafting to ensure that your financial and family goals are met. As you contemplate drafting your will it is would be prudent to consult an experienced Suffolk County Will Drafting Lawyer who will makes sure that your will is drafted consistent with not only your estate planning goals, but also with New York estate law.
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Depending on your circumstances, there are several different types of wills. For example, if you and your spouse or significant other would like to provide that you will leave each other the bulk of your estates, then you should consider a reciprocal will or joint wills. If you are in the military or are a mariner at sea and are in a situation where you cannot make a will with the normal formalities, a holographic will or a nuncupative will be considered valid. A holographic is a will that is handwritten by the testator and is not witnessed. A nuncupative will is a will that is oral and is witnessed by at least 2 people. Holographic and nuncupative wills are not valid under New York law unless made by a member of the armed forces or someone accompanying a member of the armed forces during a conflict, or by a mariner at sea. NY EPTL § 3-2.2
If you need to change your will after it has been executed, then you can either amend it with a codicil, or if the changes are substantial or complex, you can draft an entirely new will.Steps in the Will Drafting Process
1. Your Property. The first step in the will drafting process is to make a list of your assets. Assets include anything you own individually, or jointly with others. Assets can include real estate, bank accounts, stock and bonds, jewelry, artwork, collectibles, vehicles, retirement accounts, insurance policies, investments, interests in businesses, property held in trust, and personal such as furniture and clothing.
However, not all property will pass to your beneficiaries through your will. Some property such as proceeds of a life insurance policy or retirement plan, property that you have transferred to a living trust, or property that is co-owned with another person with rights of survivorship, will pass the your beneficiaries outside of your will.
2. Your Beneficiaries. An advantage of writing a will is that you will be able to leave your property to whomever you choose. You can specific property to specific family members. Or you can leave certain dollar amounts or percentage of your property to family members. You can also choose to leave gifts to people who are not family members such as friends, business associates, or employees. With a will you can choose to leave property to a charity, a religious organization, or to a college. Wills give you great flexibility. Indeed, you can specifically leave out family members if you so choose.
3. Your Executor. In your will you will name the person who will be the executor of your estate. This person must be someone who is responsible and trustworthy as he or she will be given a significant amount of responsibility. Your executor will be responsible for managing your estate after your death, including making sure that your property is distributed to your beneficiaries according to your wishes. Management of your estate will also include gathering and appraising your assets, paying your estate debts and taxes, and responding to any claims against your estate.
4. Guardianship. Another important issue that you can address in you will is who will take care of your minor children if you pass away and the other parent is also not available. There may be family members who will assume that they will be your children's guardian. However, in your will you can clearly nominate the person who you want to be your kids' guardian based on factors that are important to you. For example, factors to consider include:
- The age of the guardian. The guardian must be at least 18 years old. You should consider appointing a guardian who is sufficiently older than your children to establish an effective parental relationship.
- Responsible. Make sure the prospective guardian is responsible enough to raise your children. The children's guardian will have to make everyday decisions about your children's life including their health and education.
- Physical capabilities. Raising young children takes stamina and energy. Consider the health of the prospective guardian. Someone who may be in poor health may not be able to keep up with active young children.
- Time Constraints. Someone who already has many commitments may not be able to devote a lot of time focusing on your children.
- Other children. Select a guardian who has other children close in age to your kids may be a good idea as that person understands what it takes to raise children. In addition, it may prove helpful for there to be other kids around to offer comfort and distraction for your children.
- Financial considerations. If your prospective guardian is struggling financially, he or she may not be able to raise your kids as well, unless you also leave a trust for your kids with enough assets to cover expenses related to their care.
- Parenting style considerations. Select a guardian who parenting styles and philosophies align with yours.
- Location. Even if the guardian is perfect in all other ways, if the guardian lives far away from you, consider whether you would want your children raised in a different area.
5. Children's Property. In addition to naming who will be your children's guardian, with a will you can also state who will be the guardian of your children's property. This person could be the same person who you name as your children's guardian, or it could be a if different person. Particularly if your children will be left with substantial assets, it is important that the guardian of their property is trustworthy and responsible with handling finances.
6. Drafting the Will. Work closely with your Suffolk County Will Drafting Lawyer to create your will. In order to ensure that all of your estate planning goals are met and to ensure that your will meets the legal requires of New York Estates, Powers and Trust law, you should have it drafted by someone with experience.
7. Execute your will. New York estate law requires that in order for your will to be valid you must sign it at the end and at least two witnesses must sign it. NY EPTL § 3-2.1(a). In addition, you must have testamentary capacity, meaning that you must be at least 18 years old and you must be of "sound mind." NY EPTL § 3-1.1. This means that at the time of execution you must not suffer from a condition that renders you mentally incapable of understanding that you are executing your will and what that means.
8. Store it and revisit it. Store your will line in a safe, yet accessible place. Let your executor know where it is. Review your will regularly to make sure that it is consistent with your current wishes. For example, life changes such a marriage, death, or birth as well as changes in your finances may signal that you need to change some of the terms of your will.Consequences of Not Having a Will
Under New York law if you die without leaving a will, you will have died intestate. In such as case only your surviving spouse and specific blood relatives can inherit property from your estate. The charity or school that you wanted to support with a gift will not be able to inherit anything from your estate under New York's intestacy rules. Furthermore, if you wanted to take care of both your parents and your spouse by leaving each 50% of your estate, under the law if you have no children then your spouse would get 100% of your estate and your parents would get nothing. While the law does allow parents, grandparents, great-grandparents, siblings and other blood relatives to be statutory heirs, there is a specific priority. Spouses are "first in line," while parents can only inherit if there is no surviving spouse or children. Friends, most non-blood relatives, and institutions cannot inherit at all, even if you do not have any surviving blood relatives. Indeed, if you die without a will and without blood relatives, your estate may very well end up becoming the property of New York state through what is known as escheat. A properly drafted and properly executed will will ensure that your estate avoids the pitfalls associated with intestacy.
Making a will as well as other estate planning documents is an important process that will affect your personal and financial future, as well as those of your family members. It is important to make sure that it is done correctly. The staff at Stephen Bilkis & Associates, PLLC is experienced in drafting wills, trusts, powers of attorney as well as working with clients on all aspects of estate planning. 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: