Westchester County Will and Trust Lawyer

One of the most effective ways for you to plan for your family's future is to create a will. With a will you as the testator declare who gets your property upon your death. If you do not have a will, the distribution of your estate is left up to the State of New York. A will helps ensure that your wishes are carried out. Another important estate planning document is a trust. A trust is a fiduciary relationship in which you as the trustor, gives another party, the trustee, the right to hold title to property or assets for the benefit of a third party, the beneficiary. If a trust is created by a will, it is called a testamentary trust. While a will and trust both are means to leave property to your beneficiaries, there are distinctions which my important to your estate plan goals such that it may be wise to not only create a will, but to also establish a trust through your will. To help you understand how having a will, a trust and other estate planning documents can help you attain your personal goals, contact an experienced Westchester County Will and Trust Lawyer who will be able to guide you through the estate planning process.

What is a Will?

A will is a legal document that can serve several purposes and have many different features and terms. Its basic purpose is to set forth your instructions as to how your assets are to be distributed when you pass away. You can also leave instructions as to who should care for your minor children upon your death should the other parent also not be available.

There are several different types of wills. A pour over will is used in conjunction with a trust. If you have set a trust, you would name the trust as the primary beneficiary. Upon your death, an assets that are not already in the trust will be transferred to the trust. The trust assets would then be distributed to your beneficiaries according to the terms of the trust.

A holographic will is a last will and testament that is handwritten by the testator. It is not witnessed. Typically under New York law such a will would not be valid, as New York law requires that wills must be signed by at least 2 witnesses. In fact, several states do not permit holographic wills. However, a holographic will would be considered valid in New York if the testator is a member of the armed forces who is in serving during a time of conflict, or if the testator is a mariner at sea.

A nuncupative will is an oral will. Like a holographic will, nuncupative wills are not universally accepted by all jurisdictions. In New York an oral will is valid if it is witnessed by two people and if the testator is a member of the armed forces who is in serving during a time of conflict, or if the testator is a mariner at sea.

A joint will, typically created by spouses, is designed by two testators who wish to leave their property to each other. In other words, the testator who passes away leaves everything to the surviving testator. A joint will indicates who the remainder of the estate will be distributed when the second testator passes away. A joint will cannot be revoked without the consent of both parties and becomes irrevocable upon the death of the first testator. Some couples chose to make a joint will to prevent the survivor from remarrying and leaving the estate property to the new spouse.

A codicil is not a will, but an amendment to a will. If you need to make relatively minor changes, instead of creating an entirely new will you can simply add provisions, revoke provisions or change provisions using a codicil.

Some think that a living will is the same as a last will and testament. It is not. Despite its name, the purpose of a living will is not to distribute your property after your death. In fact a the purpose of a living will is to provide instructions for your medical care should you ever become incapacitated and are unable to communicate.

What is a Trust?

A powerful option when designing your will is to create a trust. A trust is a legal entity that holds property and is managed by a trustee. When you create a trust, you transfer your property to the trust giving the trust legal title to the property. The trustee controls the property for the benefit of the trust's beneficiaries. A trust created in a will is known as a testamentary trust. To create a trust in a will you must specifically state in the will your intention to do so. You must also indicate who you have selected to be the trustee, who the beneficiaries of the trust are, and which assets will be held in the trust. Furthermore with a will trust, you can leave detailed instructions on how the trust should be managed, including when the beneficiary will receive distribution of assets and how the assets are to be used prior to distribution.

Unlike other types of trusts such as living trusts, trusts created in a will do not become effective until you pass away. Furthermore, testamentary trusts do not escape probate like living trusts. However, will trusts do have advantages. For example, using a will trust you can leave property to minor children and set conditions for when and in what manner the child will have access to the trust property. Or if you have an adult child or other relative to whom you would like to leave property, but that person is not financially responsible, a will trust can provide long-term management of the property, ensuring long-term financial benefits to the beneficiary. A trustee will manage the trust assets for the benefit of the beneficiary, until the beneficiary is given control of the assets.

As with your will, a will trust can be revoked or changed at any time while you are still living. Upon your death, however, the will trust becomes irrevocable. Thus, it is important for you to periodically review your will and the will trust to make sure that it remains consistent with your current intentions.

What if I Die Without a Will or a Trust?

If you pass away without making a will or creating a trust to transfer property to you designated beneficiaries upon your death, then your estate will be distributed according to New York intestacy laws. New York intestacy laws identify only spouses and select blood relatives as possible heirs. For instance, if you are survived by a spouse, but have no surviving children, your surviving spouse will receive your entire estate. If you are survived by children and a spouse, then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your children will share in 100% of your estate if you do not have a surviving spouse. There are also provisions for parents, grandparents, siblings, and other blood relatives to inherit. NY EPTL § 4-1.1. Other than a spouse, generally, only blood relatives are considered heirs under intestacy laws.

New York also has specific rules regarding who is considered a child for purposes of inheriting. A biological child born after your death is entitled to an intestate share. If you father a child outside of marriage and paternity is established under New York law, that child is also entitled to an intestate share. Adopted children are treated in the same manner as biological children. This means that are entitled to receive the same share of your estate as biological children. If one of your biological children was adopted by another family, that child would not be entitled to inherit through intestacy. You would have to provide for that child through a will or trust. Foster children are not considered the same as biological children, and neither are stepchildren. Unless you leave a will including foster children and stepchildren as beneficiaries, they will receive nothing unless you legal adopt them. NY EPTL § 4-1.2

If you would like to leave friend, non-blood relative, employee or charitable organization cash or property, it is critical that you make a will or transfer property to a trust. Under the New York law friends, organizations, and even certain blood relatives will not otherwise be able to inherit.

Just as bad as those you care about not inheriting is those who you are not close to inheriting. Under the laws of intestacy, depending on who survives you, it is possible that blood relatives who you do not wish to share in your estate might receive a share if you die intestate. For example, suppose you have a brother that you have never been very close to. If you do not have a surviving spouse, children, or parents when you die, your brother would inherit your entire estate. The best way for you to control what happens with your estate is to have a both a will and a trust.

You financial situation as well as your family dynamic may change multiple times over the years. You may purchase property, get significant pay raises, or inherit money. You may get married, have children, and have grandchildren. Each of these changes in your life may warrant a change in your will and other estate planning documents. It is prudent to revisit each document each year to make sure they still reflect your planning goals, financial situation and family situation.

In order to ensure that your will and your trust are each set up correctly, it is important that someone with experience creates them for you. Not only must they be designed to meet your estate planning goals, it is essential to that they be in compliance with New York probate law. The staff at Stephen Bilkis & Associates, PLLC has years of experience working closely with clients to design comprehensive estate plans, including wills, trusts, and other estate planning tools. 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:

1.800.NY.NY.LAW (1.800.696.9529)