Suffolk County Will Lawyer
While you may be hesitant to write a will or even think about writing a will as it is difficult to think about death, the consequences of not having a will is that the loved ones who you would like to leave your property when you pass away may not receive them. With a last will and testament you can state exactly which asset you would like to leave to whom. If you want to not leave a family member any of your property, you can make that clear in your will. A will that is well-written and properly executed can make certain that there is no uncertainty as to your intentions. In contrast, in the absence of a clearly written and properly executed will your wishes may not be followed. Instead, the State of New York may end up determining how your assets will be distributed. To create a will and other estate planning documents that are customized to accomplish your personal goals, contact an experienced Suffolk County Will Lawyer who will be able to educate you about the importance of a will and help you create a will that is both consistent with your goals and in compliance with New York law.
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A will is an legal estate planning vehicle that serves a number of purposes, including stating your instructions as to how your property is to be distributed upon your death and naming who will be the guardian of your minor children should their other parent also be unavailable.Is there more than one type of will?
There are several different types of wills. The type of will that you should create depends on your family dynamic, your personal goals, and your financial situation.
- Reciprocal Wills. If you and your spouse each create a will in which you each leave your entire estate to each other, you will have made reciprocal wills. These types of wills are also referred to as "mirror wills." Reciprocal wills typically also include clauses that state what happens to the each spouse's remaining estates if both die at the same time. While reciprocal wills can be made by anybody, they are typically made by wills.
- Joint Will. A joint will is comparable to reciprocal wills. However, instead of creating two separate wills, the two testators create just one will that provides that the surviving testator would get the other person's estate.
- Pour Over Will. If you have a living trust, you can design your will so that any assets that are part of your estate when you pass away "pours over into the trust. Typically your estate will first go through probate before the property is transferred to the trust.
- Holographic Will. A holographic will is a handwritten will that is not witnessed. NY EPTL § 3-2.2. New York law requires that wills be witnessed by at least 2 people. Holographic wills are an exception to this general rule. In New York a holographic will is only valid when made under specific circumstances. The testator must be a member of the United States armed forces during a time of conflict, someone accompanying the armed forces, or a mariner who is at sea.
- Nuncupative Will. Like a holographic will a nuncupative will does not comply with the general requirements of New York Estates, Powers and Trusts law. A nuncupative will is an oral will that is witnessed by at least 2 people. Like a holographic will, a nuncupative will is only valid if the testator must be a member of the United States armed forces, someone accompanying the armed forces during a time of conflict, or a mariner who is at sea. NY EPTL § 3-2.2.
- Codicil. A codicil is an amendment to a will. For example, if there is a change to your family such as the birth of a child, you may decide to amend your will to specifically leave your child property. Instead of executing a new will, you can simply execute a codicil. In order for a codicil to be valid, it must be executed with the same formalities as a will.
Not every asset is governed by a will. If you include in your will assets that legally passes to another person outside of a will, then that specific bequest will fail. Such property includes:
- Property held in joint tenancy with another person. Property is held in joint tenancy if 2 or more people share ownership of that property. Real estate is often held in joint tenancy. When you pass away, property that you held in joint tenancy commonly has a right of survivorship, meaning that it will automatically pass to the surviving co-owner or co-owners.
- Living Trust. If you had transferred assets to a living trust during your lifetime, upon your death those assets will be transferred to the beneficiaries you designated in the trust.
- Life Insurance. Proceeds of a life insurance policy will go to the beneficiaries you designated in the life insurance policy documentation. However, if you name your estate as the beneficiary of the insurance policy, then the proceeds will go into your estate and be distributed according to the terms of your will.
- Retirement Plans. Money in a retirement plan such as a pension plan, IRA, 401(k) plan, or any other type of retirement plan will go to the beneficiaries you named on the beneficiary designation form. If you are married, your spouse is by law your designated beneficiary.
- Payable-on-Death Account. If you have money in a payable-on-death (POD) or a transfer-on-death (TOD) bank account or other type of account, whatever money is left in the bank account upon your death automatically goes to the POD or TOD payee.
- Inter Vivos Gifts. Any gifts that you give before you die are not subject to your will. For example, if in your will you leave your SUV to your niece, but a few weeks before you pass away you give it to another relative, the SUV is no longer a part of your estate and your niece will have no claim to it.
Because in most cases property that is passed outside of a will is passed based on a beneficiary designation, it is important to regularly review your beneficiary designations and update them if necessary.Executing a Will
Under New York law in order for a will to be valid certain formalities must be followed. It must be in writing, signed by you at the end, and witnessed by at least two people. NY EPTL § 3-2.1(a). In addition, you must have testamentary capacity at the time you sign the will. This means that you must be at least 18 years old and your must not be mentally incapacitated.
In addition, at the time the will is executed, you must not be mentally incapacitated or under duress. In In the Matter of the Estate of Butler, 957 N.Y.S.2d 263 (2012), the mental capacity of the testator was challenged. The court noted that in order to prove that the testator did not suffer a mental incapacity at the time of making the will, it must be shown that the testator understood the nature and consequences of executing a will, what property he or she owned and its value, and who his or her family members were. It is not relevant that you suffer from a mental incapacity at the time of your death, as long as you had testamentary capacity at the time you executed your will.Administration of Your Estate
When you create a will, you will nominate the executor. Once drafted and executed, the executor should retain a copy. Upon your death the executor of your estate can then begin the process of winding up your estate by taking your will to the New York Surrogate's Court to request that the court admit it to probate. Before admitting your will to probate and formally appointing the executor, the judge must verify that the will is valid. The judge will also contact beneficiaries to let them know about the will.
Once a will is permitted to go to probate, the steps to administering the estate are as follows:
- Inventory the Estate. One of the first responsibilities of your executor is to gather, inventory and appraise the estate assets. Assets may include almost anything such as cash, securities, real estate, vehicles, and personal property.
- Pay Estate Debts. The executor then must pay estate bills using assets of the estate. Estate debts and expenses include the costs related to administering the estate, your funeral expenses, estate debts and taxes, and other claims against the estate. If there are outstanding claims such as lawsuits, the executors must resolve them.
- Distribute Estate Property. Once all legitimate claims and debts are paid, the executor then must distribute the remaining estate property to your beneficiaries according to the terms of your will.
The probate process may be hampered if the executor has difficulty finding beneficiaries and needs to use an heir finder. It may also be slowed if there is a will contest or any type of estate litigation.Intestate Succession
If you die without a will or your will was not properly executed, the consequence will be that your property may not be distributed according to your wishes. Instead, it would be distributed to your heirs according to New York's rules on intestate succession. NY EPTL § 4-1.1. Furthermore, if you have not named someone to be the guardian of your minor children and there is not a relative willing or able to care for them, it is possible that your children will end up in foster care. These are consequences that can easily be avoided by having a properly executed will.
If you die without having created a last will and testament, an already difficult time for your family may become even more stressful. An experienced Suffolk County Will Lawyer, can help you create a will that will satisfy your personal and financial goals. To learn more about writing a will, trust, and other estate planning tools, contact Stephen Bilkis & Associates, PLLC. We 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: