wills in new york - the basics, the options and frequently asked questions

The BasicsThe Options

And Commonly Asked Questions

Wills in New York

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Also called a last will and testament, a will is a legal document you can make as soon as you reach adulthood.

They serve as an important piece of any complete estate plan…

…and allow you to make specific decisions concerning who will

manage and receive your assets when you die.

What You Can Do

With Your Will

Under New York law there are some decisions you can only make through your last will and testament.

If you don’t create a will

that addresses

these decisions, you leave it up to state law to make those choices for

you.

Through your will you can:

Make inheritance decisions about your property

Through your will you can:

Make inheritance decisions about your propertyChoose someone who will serve as guardian over your young children

Through your will you can:

Make inheritance decisions about your propertyChoose someone who will serve as guardian over your young children

Create a testamentary trust and appoint someone you trust to manage its property

Through your will you can:

Make inheritance decisions about your propertyChoose someone who will serve as guardian over your young children

Create a testamentary trust and appoint someone you trust to manage its property

Name someone who will care for your property after you die

Legal Requirements

Even though New York allows for different types

of wills

the most commonly created type is known as an attested will.

PRINTED

Attested wills are printed. They are most commonly made by an attorney who prints the wills for their clients after consultation.

PRINTED

SIGNED

Once you write your will or have it printed for you, you will then have to sign it.

PRINTED

SIGNED

You also have to sign your will in the presence of two capable adult witnesses. After witnessing you sign the will and affirming that it reflects your wishes, the witnesses will then have to sign the document as well.

WITNESSES

Other Wills

Though less commonly used, New York also allows for oral

and handwritten wills.

Handwritten Wills

Called holographic wills, a handwritten will is one that you make entirely in your own handwriting.

As long as no one else writes any part of your handwritten will you do not need to have it signed by witnesses.

Oral Wills

In very limited situations you might be able to create an oral, or verbal, will. Written wills are always preferable to oral wills.

Who

Can

Make a Will

TestatorsA person who makes a will is known as a testator.

This term is used to describe both men and women, though you may see the word “testatrix” used to refer to a woman who makes a will

AgeOnly

someone 18 or older can make a will in New York.

Sound Mind

You must be of sound mind in order to

make a will.

AgeOnly

someone 18 or older can make a will in New York.

If a court has ruled that you are legally incapacitated or you are

suffering from a medical condition that makes you unable

to understand your choices or make decisions, you are not of

sound mind.

Intent and Capacity

When you make a will you have to intend that the document you create represents your final wishes.

You also have to have legal capacity at the time you do this.

When you make a will you have to intend that the document you create represents your final wishes.

Intent

You must make the document of your own free will, and without duress or undue influence.

Capacity

You have to know what you own, who your family is, and understand how your choices will affect your property.

Additional Provisions

Optional Clauses

Though these clauses aren’t necessary, they address decisions that you can only make through your last will and testament.

Representative

After you die, your will must be admitted to a New York Surrogate’s Court to begin the probate process.

Representative

You can name the person who will represent your estate during this

process by nominating someone in your will.

Representative

This person is known as a personal representative or an executor.

Guardian

Parents with children under the age of 18 should nominate a guardian in their wills. A guardian will take over parenting responsibilities should you die before the child reaches adulthood.

Testamentary Trust

Unlike a living trust, a testamentary trust is one that is only created after you die.

Testamentary Trust

These trusts are commonly used to manage property you wish to give to a minor child.

Testamentary Trust

You can create a will clause that allows for the creation of a testamentary trust, and you can appoint a trustee to manage it.

NOT MAKING A WILL

A lot of people never get around to making a will. Because this situation is so common, the state of New York, as well as all other states. has laws that address it.

YOU LEAVE EVERYTHING TO THE STATE TO DECIDE

If you don’t make a last will and testament you are said to have died intestate. In such a situation, New York’s intestacy laws determine who inherits your property. Even if you know how you want to distribute your property after you die, intestacy laws will still apply to your estate unless you make a will.

THE STATE MAY INHERIT YOUR PROPERTY

Even though it is very rare, it’s possible that the state of New York could become the legal inheritor of all of your property if you die without a will.

If you die without a will and no living relatives survive you, all of your property will transfer to

the state.

Through the law known as escheat, New York serves as the final inheritor of any intestate estate.

Do I have to have to notarize my will?

Do I have to have to notarize my will?

No. New York law does not require testators to have their wills notarized.

Can I change my will?

Can I change my will?

Yes. Wills are not contracts. If you change your mind about the choices you have made in your will you can change it at any time as long as you maintain capacity.

Changing Your Will

If you completely change your mind about the choices you have made in your will you can revoke the document entirely. This is best done by creating a new will or codicil, but you can also physically destroy the original will with the intention to revoke it.

Revoking a Will

CODICIL

If you want to update a will or make some minor changes you can create a codicil. Codicils amend the terms of a previously written will and must meet the same creation requirements as a will.

NEW WILL

If you want to make significant changes to an old will it is best to create an entirely new one. New wills state that the old will is no longer valid and allow you to make entirely different choices.

CONCLUSIONS

If you only learn one thing about wills, you need to understand that they are documents that you

use to make choices that affect you and your family.

Making a will is something many people procrastinate about and never get around to actually doing.

If you don’t take the opportunity to make those choices, someone else will make them for you.

NOTA will is

A will is not capable of serving all of your estate planning needs. There are some choices you can make that will have to be made through tools other than a will.

Wills state your choices about what you want to

happen after you die. But what happens if you are rendered unconscious or

otherwise incapacitated? In such a situation you will need to create medical

directives that state the kinds of medical choices

you want to receive. Wills cannot do this.

HEALTH CARE DECISIONS

Delegation of authority

In some situations you might want someone else to manage important affairs on your behalf. You can create

powers of attorney to give others financial decision-making authority, although creating a Living Trust often is

a better option, but you cannot do so through a will.

Other Options

The complete estate plan involves numerous different elements, and no two plans are

identical.

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