Westchester County Wills Lawyer

A will is not just for wealthy people. A will is not just for senior citizens. A will is an important estate planning document that everyone should have. The main function of a will is to specify how your assets should be distributed upon your death. If you do not have a will your assets will be distributed according to the laws of intestate succession. What this means is that New York State will essentially write a will for you. It will decide how your property is distributed. However, there are other reasons for having a will. In a will you name an executor who will be responsible for managing your property until it is distributed to your beneficiaries. If you have minor children, in your will you can specify who will care for them and their property. You can even state who you want to take care of your pet when you pass away. Without a will, all of these important decisions will not be made by you, but by the State of New York. To create a will that is consistent with your wishes and not the wishes of the State of New York it is important to contact an experienced Westchester County Wills Lawyer who will not only help you draft a will, but will also explain to you other estate planning documents that you may need to help meet your estate planning goals.

The Importance of a Will

Creating a will allows you to retain control over what happens to your estate. You will be the person who decides what happens to your property such as your house, your car, and your personal belongings such as your jewelry, furniture and clothing. While a will may not guarantee that there will not be any family squabbles about your belongings, with a well-written, properly executed will there is more likely to be a smooth transfer of assets.

More importantly than your assets, a will is the place where you state your preference for who should care for your minor children. You can also name the person who will manage your children's property until they become adults. In In the Matter of the Appointment of a Successor Guardian for Timothy R.R., 977 N.Y.S.2d 877 (2013), the testator passed away without providing for the guardianship of her developmentally disabled child. As happens all too often with families, a dispute developed among relatives as to who should serve as the child's guardian. As a result, the court had to step in. Of course, simply because you name someone in a will does not mean that the court will definitely appoint that person. However, the court will give strong deference to your opinion and will only appoint a different person in unusual cases.

In addition, if you want to leave property to the college you attended, to your church, or to a charity, a will lets you direct your assets to the institution or organization of your choice. If you die without a will, the law will only allow your assets to go to certain specified family members and not to institutions.

Types of Wills

There are several different types of wills. The type of will that you should use depends on your personal situation, your goals, and your financial situation. Regardless of the type of will you choose, it is important that the will be well-drafted and properly executed according to the laws of New York.

  • Pour Over Will. A pour over will is used in conjunction with a trust. Upon your death any property that will pass through your will will "pour over" into the trust. The property will then be transferred to the trust's beneficiaries according to its terms.
  • Holographic Will. A holographic will is a will that is handwritten by the testator and is not witnessed. NY EPTL § 3-2.2. In New York a holographic will is only valid when made during a time of conflict by a member of the United States armed forces or someone accompanying a member of the armed forces during a time of conflict. A holographic will is also valid if made by a mariner at sea.
  • Nuncupative Will. A nuncupative will is similar to a holographic will in that it is not created using the formalities that are normally required by New York law. It is not written at all, but is oral will. Unlike a holographic will, to be valid a nuncupative must be witnessed by at least 2 people. Like a holographic will, a nuncupative will is only valid if it is created by someone who is a member of the United States armed forces, someone accompanying a member of the armed forces during a time of conflict, or a mariner at sea. NY EPTL § 3-2.2.
  • Reciprocal Wills. If you and another person, such as your spouse, create 2 separate wills that provide that each of you leaves your entire estates to each other, you have made reciprocal wills. Reciprocal wills typically also provide what happens to the estates if both people die at the same time.
  • Joint Will. A joint will is created when the two (or more) individuals make just one will that provides that each person would get the survivor's estate.
  • Codicil. A codicil is a document that amends a previously executed will. Codicils are typically used to add, change or revoke portions of a will. Codicils should only be use to make minor or uncomplicated changes to a will. If the change is major or complicated, then it may be a good idea to execute a new will.
What types of property does not pass through a will?

Almost any type of personal or real property will be covered by your will such as your house, condominium or other real estate, your car, collectibles, jewelry, household items, clothing, bank accounts, and property in a safe deposit box.

However, there are some exceptions. Property such as life insurance policy proceeds, pension plans, IRAs, 401(k) plans, and similar accounts will go to the person you named as the designated beneficiary. Furthermore, your share of property that you own jointly with another person will who has a right of survivorship will got to that person. Bank accounts or investment accounts that have a transfer of death or payable on death payee will transfer to that payee upon your death.

What should I do with my will after it is completed?

Once your will has been written and executed according to the laws of New York, you should put it in a safe place and give a copy to you executor. Upon your death your executor will take it to the New York Surrogate's Court to begin the process of getting your will admitted to probate.

If you need to change your will, you can simply write a new will to replace the old one, or you can amend it using a codicil.

What are the consequences of not having a will?

If you do not have a will, you die intestate. In such a case, the State of New York will manage the distribution of your assets based on the rules of intestate succession. If you have a surviving spouse but no children, then your entire estate will go to your spouse. However, if you have both a spouse and children, your spouse will get the first $50,000 of your estate. The balance will be split between your spouse and your children, with your spouse getting 50% and your children getting the remaining 50%. The result could be problematic. If, for example, your estate is small and with the bulk of it being made up of the family home, then in order to distribute the estate according to New York law, the house may have to be sold and so that your spouse and your children can each get their share. Such a scenario can create financial and emotional difficulties. It can also result in strained family relationships.

Is a will all that I need?

Not likely. A will is but one of several types of estate planning documents that you may need in order to accomplish your estate planning goals in the most cost-effective, efficient manner. In order to determine the additional documents that you will need, it is important that you determine your goals. Some goals to consider include:

  • Helping your children pay for college
  • Providing for a disabled relative
  • Planning for long-term care
  • Planning for incapacity
  • Preserving assets

Based on your goals other types of estate planning documents that you may need include one or more trusts, a power of attorney, a healthcare proxy and a living will. In addition, it is important to regularly review your will and all other estate planning documents to make sure that they remain consistent with your wishes. It is particularly important to review them after major life events such as the birth of a child or grandchild, marriage, divorce or the death of one of the heirs that you named in the will. It is also a good idea to review them if your financial situation significantly changes. 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)