Westchester County Will Lawyer

A will is a set of instructions, usually in writing, that controls how your property will be managed and distributed upon your death. It also can provide instructions as to who is to serve as the guardian of your minor children and who will take care of their property until they become adults. When you make a will, you are referred to as the testator. Those who receive property from your will are called beneficiaries. In addition to specifying who gets your property a will also serves to make sure people who you do not want to get your property will not. In the absence of a clearly written and properly executed will your wishes may not be followed. Instead, the State of New York will determine how your assets will be distributed. This would mean that there is a chance that your wishes will not be honored. To create a will and other estate planning documents that are customized to accomplish your personal goals, contact an experienced Westchester County Will Lawyer who will explain to you the importance of a properly drafted will and who will help you create a will that is both consistent with your goals and in compliance with New York law.

Who can create a will in New York?

Everyone should have a will. While you might believe that only wealthy people need wills, that is not the case. The size and value of your estate is not important in determining if you should have a will. In addition, while it is difficult to contemplate death at any age, it is important for each person who is at least 18 years old to create a will and other estate planning documents. Sadly, accidents and illnesses happened to both the young and the old. Under New York law you can create a will if you are 18 and are of sound mind and memory.

What is required to make a will valid?

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 you must not be mentally incapacitated.

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 important to note that it is not relevant that you suffer from a mental incapacity at the time of your death. Testamentary capacity means that you must have had mental capacity at the time you executed your will. This also means that if you suffer from an ailment that results in you suffering bouts of mental incapacity you can still legally execute a will as long as you do so during a time in which you are experiencing mental clarity.

What can a will do?

There are several estate planning goals that a will can accomplish.

Give away property. Through your will you can give away your assets to the people you designate. The great thing about a will is that you can be very specific about who gets what. You do not have to leave your entire estate to your blood relatives. You can choose to give part of your estate to non-family members or even to institutions such as a charity that is important to you.

Appoint an executor. You can name a person to manage your estate upon your death. This person is called your executor. Your executor will have several responsibilities upon your death including:

  • Gathering your property and distributing it to your beneficiaries according to the terms of your will
  • Hiring professionals such attorneys and accountants to help with the management of your estate
  • Paying your estate's bills and taxes

Name a guardian. A will can be used to name a guardian for your minor children. If you do not do so, there may be disagreement among family members as to who should care for your children. There are many different issues that you should take into consideration when nominating a guardian for your children. An experienced practitioner can help you sort through those issues.

Create a trust. If instead of giving outright gifts to your beneficiaries your will can direct that some or all of your assets be placed in a trust for the benefit of your beneficiaries. Upon your death the assets will go to the trust. You can then be very specific about under what conditions the beneficiaries will receive distributions from the trust.

What type of property cannot be left in a will?

Not every asset is governed by a will. If you include in your will assets that legally pass 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 by spouses, but can be held jointly by people who are not spouses. 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 financial account, whatever money is left in the bank account upon your death automatically goes to the POD or TOD payee. It is not necessary to include that bank account as an asset in your will. If you attempt to leave that bank account t someone other than the POD designee, that bequest will fail.
  • 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.

How can I change my will?

While some people write a will just once and never change it, it is a good idea to regularly review your will to make sure that it remains consistent with your wishes, your current financial status, and your current family status. Events that may require you to update your will include:

  • Marriage, divorce, or remarriage
  • Birth or adoption of children or grandchildren
  • Death of a parent, spouse, child, or anyone named in your will
  • Significant changes in your financial situation such as a losses, gains, or acquisition of major property such as a home or other real estate
  • Change of your state of residence

One way to make changes to your will is to simply execute a new will. Another way is to create a codicil. A codicil is a separate document that serves as an amendment to a will. To be valid a codicil must be executed with the same formalities as a will.

What happens if I die without a will?

If you pass away without creating a will, then you would have died intestate. The consequence is that the court will appoint someone to act as your estate's administrator and your property will be distributed to your heirs according to New York's rules on intestate succession. NY EPTL § 4-1.1. In other words, you lose control over what happens to your estate. 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.

What should I do to get started with the will making process?

An experienced Westchester 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:

1.800.NY.NY.LAW (1.800.696.9529)