Estate Planning





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Wills FAQs

What is a will? Why do people have wills?

A will is a document by which a person arranges for the distribution of his/her property upon death. A typical will might provide that a person's property will pass to his/her spouse, and upon the spouse's death, to his/her children. In addition, a person can make gifts to charity in a will, and can provide for the distribution of specific assets to specific people (i.e., "I give, devise and bequeath my Picasso painting to my good friend, Tom Jones . . . ). People have wills because they want to make sure their property is distributed according to their wishes not New York State’s wishes. And remember, sometimes the main purpose of a will is to not distribute property; that is to say, some people write wills to prevent their property from going to someone who would otherwise receive it (the best example of this is a parent who "disinherits" his or her children). 

In addition, it is critical that each Will names a guardian for a child (under 18 years of age) in the event both parents die. When there is a minor child and no guardian is named, the court will make the final determination, but a temporary guardian will be appointed in the interim and estate laws dictate the court may appoint a lawyer for the guardian and a court evaluator. Each of these expenses will be paid out of the assets of the estate. 

What do you have to do in order to have a will? Does it have to be typed, or can it be written out in longhand? Does it have to be notarized? 

There are two basic types of wills: (1) A typed will and (2) a handwritten (or holographic) will. 

For a typewritten will to be valid, it must be properly executed (signed) and that means it must be witnessed (most states require two independent witnesses, who must both be present when the will is signed). The execution ceremony is really quite simple. The person making the will (called the testator) declares in the presence of the witnesses that "This is my last will and testament" (or words to that effect) and requests that the witnesses serve as official witnesses of his/her signature. There is usually an attestation clause for the witnesses to sign also; it states that they were present, were requested to be witnesses, and that they know the testator to be the person who actually signed the will. The witnesses sign under penalty of perjury. A will does not need to be notarized. Typically, “self-proving” affidavits accompany a will execution to avoid the added expense of finding attesting witnesses to validate the will through the probate process.

A holographic will is a different story. A holographic (or handwritten) will must be all in the testator's own handwriting, and it must be dated. It does not have to be witnessed or notarized. 

One of the obvious problems with a holographic will is proving that the testator actually prepared and signed it. One of the benefits of a typewritten will is that there are built in witnesses and the procedure will usually stand up to challenge. Holographs often invite challenges, especially if the deceased person has provided for an unusual disposition of his/her property. 

A Holographic Will is considered a valid Will only in the limited circumstance where it is made by certain members of the U.S. armed forces while serving in a conflict or by another person who serves with or accompanies the member of the armed forces.  Such a Will must be entirely in the handwriting of the testator to be valid. Such a Will becomes invalid after 1 year after he or she ceases serving with the armed forces. (NY Law EPTA Section 3-2.2)

Is there a requirement required that a person have a will?

No. If you die without a will, it is called dying "intestate." There are statutes in most states, including New York, that provide for intestate succession to a person's property. A typical intestacy statute might provide, for example, that if there is no will, half a person's property passes to his spouse, and the other half to his children. Many people write wills because they want to a distribution different from that set out in the statutes. A will can accomplish that. 

I am a single 35 year old with no dependents and few assets. Do I need a Will? (NY)

It is always helpful to have a Will written as soon as possible. The risk of undue hardship on family and friends is significantly greater in the absence of a written Will. Estate law declares that without an Executor named in the Will, no one has authority to gather whatever assets the deceased may have and pay outstanding debts. Family and friends will have to pay the funeral bills but without a written Will they may have trouble being reimbursed. Without a Will, the New York Surrogate’s Court of the County where the property sits or the decedent resided will appoint an administrator (who may or may not be a family member) upon petition to that court and the administrator may appoint an estate lawyer for the administration, both of whom will be paid out of the decedent’s estate. 

I am married and have a 4-year-old daughter. Everything is in my wife’s name and she has a Will. Do I need a Will? (NY)

It is always prudent for both parents to write a Will. In addition to the facts that assets may be owned unevenly between spouses, there exists a possibility of each spouse’s death occurring within a short time of each other. In the event of one spouse electing not to have a Will, New York estate laws will in effect determine the division of assets. There remains the chance that a written will’s heirs do not include the spouse, who under estate law may claim one-third of their spouse’s assets. This assumes the absence of a pre-nuptial agreement. Finally, estate tax laws may provide unfortunate consequences in the absence of a will. 

Should separated and/or divorced spouses execute a new will?

It is an excellent idea, especially if there is an outstanding will that passes property to the estranged spouse. In fact, there are many points in time when a person should reevaluate an estate plan. It is a good idea to do so upon marriage; divorce; separation; the birth of a child; the death of a spouse or child; the marriage of a child; acquisition of property and assets. Any significant change in family circumstances should trigger at least a review of an existing estate plan to see if a change is needed or desired. 

How should I dispose of my personal effects?

Many people want to write wills that provide for very specific gifts of personal property. Example: "I give devise and bequeath my golf clubs to Bob Jones; my leather jacket to my friend Phil Smith; my fishing rod to Sam Clemmons" and so on. This can be quite cumbersome, because often times people either change their mind; acquire new property that they wish to add to the list; or else remember items that they forgot to put on the list in the first place. There is an easy solution to this dilemma. Instead of burdening a will or trust document with the designation, simply state that you have communicated your wishes to the person in charge of your estate (your executor) and that it is your desire for your executor to follow your wishes. Then, write a letter to the executor explaining who gets what. If you change your mind, revise the letter (this will be no problem if the letter is stored on your personal computer). The point here is that it is far easier (and certainly less expensive) for you to rewrite the letter than it is to have your attorney continually rewriting your will.