What is a Will?
A will is a document which declares who will receive your property when you die. Through your will you:
Direct how assets are to be distributed.
- A will directs the disposition of all assets in your name alone. Not all assets, however, pass through a will.
- Life insurance, pension plans and the like usually pass directly to named beneficiaries. In the same way, joint property and trust bank accounts usually pass to the named survivor outside of the will.
Appoint an Executor:
- An executor takes care that the debts and other expenses of the estate are paid and that the assets are distributed according to your desire. The executor performs these duties under the supervision of the Surrogate’s Court, usually with the assistance of an attorney.
- Appoint a Guardian for your minor children
What Happens if I Die Without a Will?
If you do not have a valid will at the time of death, your property may not be distributed in accordance with your wishes. In addition, if any of the persons entitled to part of the estate are minors, long difficult procedures and additional expense may result for them and their parents.
The court will appoint an administrator, usually a close relative, who distributes the property of the deceased according to New York state law, not necessarily according to the wishes of the decedent. Your property will be distributed according to a formula created by New York State. In most instances, your property will be distributed among your family members, however not in the way you may have wished.
Under the New York State formula, if you are survived by:
- A spouse and descendants, your spouse takes the first $50,000 and one-half the balance of the property, and the descendants share the rest.
- A spouse but no descendants: spouse takes all.
- Descendants, no spouse: descendants take all.
- Parent or parents, no spouse, no descendants: the parent or parents take all.
- Parents’ descendants but none of the closer relatives: the parents’ descendants take all.
- One or more grandparents or their descendants, but none of the closer relatives: half goes to the maternal side and half to the paternal (but not including second cousins if you have any first cousin on either side)
What are the Requirements for a Valid Will in New York?
A testator (person making the will) must be 18 years of age or over, and of sound mind and memory. The will must be witnessed by at least two persons who are not beneficiaries under the will. A will must be executed in strict compliance with the law or it will not be valid. Homemade wills are extremely dangerous and are frequently the subject of lawsuits. Do NOT execute, alter, amend, or change a will, except under the direction of a lawyer.
How Long is a Will Good?
A will remains valid until it is revoked.
How Can I Make a Change to my Will?
One may either execute a new will, or make a change (called a codicil). You may want to modify your will following changes in your marital status, deaths among beneficiaries, a desire to eliminate gifts to certain beneficiaries, changes in property holdings, additions to your family or those of your heirs. Consult with your attorney as to whether a new will is necessary, or whether a codicil is appropriate.
In order for the codicil to be legal, it must be executed under the same strict requirements that a will must be. Failure to observe statutory requirements for proper execution of a will can invalidate the will or codicil.
Is a Form Will Satisfactory?
A form will can be legal, but use of a form by non-lawyers is risky. Wills are not “one size fits all.” A will should be drafted to address the specific needs to the individual, not to fit some form. When a lawyer prepares a will in New York, there is a presumption the will is valid.
If you are preparing your will, you should also consider the following documents:
- Power of Attorney – this appoints an individual to act on you behalf in financial and other transactions.
- Living Will – This document directs your physicians to withhold and withdraw treatment that serves only to prolong your dying, should your be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery.
- Health Care Proxy – This document appoints an agent to act for you with regard to making and communicating health care decisions to your attending physician.