What Should Not Be Included In A Will In New York
A last will and testament is not the right place for designating end-of-life care or funeral instructions. Usually, when a person dies, the funeral arrangements are made immediately. The will is typically not consulted until the process of settling the estate begins. If you leave funeral instructions in your will, it is possible that your family will not know about them until after the funeral. Medical directives or end-of-life care stipulations require a separate legal document.
To designate end-of-life care, create a living will.
To leave your funeral directions, you can write an informal document describing your wishes for your funeral arrangements. It does not need to be notarized or witnessed it is just a document that your family can refer to when planning the funeral. You can also just talk to your family about your wishes. If you choose to make a document, be sure you give copies of it to the executor of your estate and other trusted family members.
What Should You Include In A Will In New York
When writing a will in the state of New York, you can specify almost anything related to assets and beneficiaries. You can give away money, personal belongings, high-value assets and even real estate property. The beneficiary of a will can be a family member, friend, charity, business or even a trust. It only makes sense that you would want to make sure you leave your property to the right person or people. Other notable assets to take stock of before finalizing your will include the following:
- Any vehicles you possess
- Stock options
- And any other valuable possessions
What Not To Do With A Will After Someone Dies
Any time there is a will, there is potential that someone may challenge its sufficiency. Consequently, it is a good idea to refrain from doing anything that makes the document appear as if it was tampered with in some way, making it invalid.
For example, do not remove staples from the paperwork when making copies. When staple removal occurs, the remover of the staples must provide a signed, notarized affidavit detailing why the staples were removed, the location of the paperwork since the time it was executed, and the staple remover’s belief that no substitutions or changes occurred since the time the document was executed.
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Dying Without A Will In New York
When someone dies without a will, the court will determine their heirs based on state laws ofintestate succession, and those heirs may not be who you wouldâve wanted. To prevent that from happening, you need to create an estate plan, which often includes a will.
Why Do You Need A New York Last Will And Testament Form
In the State of New York, creating a legal document known as a last will and testament is an important step in the estate planning process. A will outlines how your property should be divided, names an executor to carry out any wishes listed in the will, and can be used to name a guardian or conservator for minors. It can also be used to make charitable contributions.
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Probating A Copy Of A Lost Will In New York
In order to probate a will, i.e. to have it accepted by the Court as the decedents Last Will and Testament, New York States Surrogates Courts require the original Will to be turned over to the Court. What happens, however, if the original Will is lost or destroyed? Can a copy of the Will take the place of the original, or do the wishes of the decedent disappear with the original Will? What if no copy is found is all hope lost? The answer, as always, depends on the facts.
The Law: The rules allow for a lost or destroyed will be to be admitted to probate if all three of the following conditions are met:
Lets take a look at each of these three requirements individually:
Will Not Revoked: New York law presumes that if someone had a Will in their possession which cant be located, that the Will was revoked. If the Will was not in the possession of the individual, there is no such presumption. That is part of the reason, as we discussed in an earlier article, it is recommended that clients leave the original Will with their lawyer. If the Will is lost or destroyed while in the possession of an attorney , the Will is much more likely to be admitted to probate.
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Do You Need An Attorney To Create A Will
You are not required to hire an attorney to create a will, and you do not have to notarize a will in New York for it to be valid. However, if you want the will to be self-proving and thus make probate quicker and easier, a notary attestation is required. Probate is the court process of validating your will. Many people seek to avoid probate to reduce cost and time as well as to protect privacy. But still creating a will by yourself is dangerous.
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More Than 44 Years Of Experience
At Busson & Sikorski, PC, we use our extensive experience to create the wills our clients need. Everyone deserves the peace of mind that comes from knowing your affairs are all in order and that you will be able to help those you love even after you are gone. Your will deserves the attention of a team of attorneys who understand everything a will can do and who will ensure that all of your issues are addressed.
Can I Name An Executor In New York
In New York, an executor can be named in an online will. The executor is the person designated to settle the estate and ensure that the will is followed after the Testators death. It is a good idea to name an executor in the will, and you want to choose someone you know well and trust. If you do not name an executor in your will, then the probate court will appoint someone .
New York, like all states, has its own laws regarding who can serve as an executor. In New York, the following is required:
- The executor must be at least 18 years of age and of sound mind.
- The executor must be a United States citizen. A non-U.S. citizen living in New York may be accepted if there is a named co-executor who is a resident of the state, but only if the judge approves.
- The executor must not have any felony convictions.
- The executor may be rejected by the court if found unqualified due to substance abuse, dishonesty, improvidence, a want of understanding, as the court may reject someone who is unable to read and write in English.
New York does not require any special conditions to name an out-of-state executor, as long as they meet the above requirements. However, for practical purposes, it is usually better to name someone who lives nearby as the executor. The process of settling an estate can take weeks, months, or even longer sometimes.
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How To Prepare Before Meeting With Your Attorney
What Is The Difference Between A Will And A Trust
A common myth is that a Will is enough to pass your estate to heirs. However, a Will alone is not enough as it takes at least one year in New York to validate or probate it in court, and until the court actually gives its permission by issuing Letters Testamentary, no one can touch even a dime from your estate. A Will is practically useless if your estate has significant value, or if you have real estate in different States, or if you have minor children or children from different marriages.
You need a Trust to pass your estate to your children without a challenge and court proceedings. A Will always has to go through probate. A Trust never goes through probate. A Trust allows your loved ones to get direct access to your estate immediately after you pass away.
Call 333-2394 to set up a consultation or contact us online with the best trust attorney in Brooklyn.
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Where Can I Find New York’s Laws About Making Wills
For more on New York estate planning issues, see our section on New York Estate Planning.
Ready to create your will?
Should My Will Name An Executor
Yes. In New York, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo’s Quicken WillMaker produces a letter to your executor that generally explains what the job requires. If you don’t name an executor, the probate court will appoint someone to take on the job of winding up your estate.
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Creating A Cornerstone For Your Estate Plan
When effectively drafted, a will can address a much wider range of issues than most people realize. This makes your choice of trusts and estate planning attorney an especially crucial one. There are many attorneys who can draft a simple will for you.
We are able to draw on decades of experience in drafting wills that allows us to identify a wide range of potential issues such as:
- Potential tax consequences
- Providing for the care of minor children
- Avoiding potential conflict among your heirs
We can draft wills as standalone legal documents when peoples needs are more straightforward. We can also draft wills that can serve more complex needs as part of a more comprehensive estate plan that could include:
Writing A Will In New York
Itâs perfectly legal to make a will without a lawyer in New York state, like through an online will making service, which is often cheaper. An estate attorney can charge as much as hundreds or thousands of dollars to prepare your will and the cost could be higher in the city than it would be in a smaller town. However, you may benefit from hiring a lawyer to draft your will in New York if you have a complex estate or many assets.
A strong estate plan starts with life insurance
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Do I Need To Say Or Do Anything Special In Order To Execute A Will In New York
While there is no special dance or song or magic words, the testator needs to do something to publish the Will. That is, the testator must either say or demonstrate through actions, that the instrument that is being signed is the Will. The testator must make clear to the witnesses that the document being signed is a Will and not just any ordinary document. The witnesses must walk away from the signing believing that they are witnessing a Will being signed so that the incident can hopefully stick out in their minds.
Common Mistakes In Do
We create wills to ensure that our wishes are carried out if we die. This is one of the reasons why a will should never be created without the help of an experienced estate planning attorney if you are dead, you will be unable to address any unforeseen problems that an improperly drafted will may cause. Below are some of the most common mistakes seen in do-it-yourself wills.
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Can I Revoke Or Change My Will
In New York, you may revoke or change your will at any time. You can revoke your will by:
- burning, tearing, cutting, canceling, obliterating, mutilating, or destroying the will
- ordering someone else to burn, tear, cut, cancel, obliterate, mutilate or destroy your will in front of you and two other witnesses
- making a new will, or
- making a new writing that says you are revoking your will and following the same formalities you used to make your original will . N.Y. Estates, Powers & Trusts Law § 3-4.1.
If you need to make changes to your will, it’s best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will .
The Benefits Of Having A Will
New York has no legal requirement in place for the creation of a last will and testament. However, creating one can provide you with many benefits.
- A valid will allows you to outline your wishes for any personal property.
- Any digital assets, bank accounts, real estate, vehicles, etc., can be included for disbursement to any loved ones, friends, or family members in your will.
- Having a will also allows for you to name an executor who will be legally required to carry out any wishes outlined in the will.
- A last will and testament can also include guardianship instructions for minors in your care.
- You can make charitable donations.
- You can create pet trusts.
- Small estates can qualify for a simplified probate process if the executor requests it.
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New York Inheritance Law
A surviving spouse has the right to inherit when someone dies without a will. This is how much they would receives in a few different circumstances:
|If the decedent is survived by a spouse and:||Surviving spouse’s share|
|One more children||The first $50,000 plus 1/2 of the remaining intestate estate|
Siblings of the decedent, or their children
Grandparents, or their descendants
Descendants of great-grandparents
For someone to receive an inheritance, there must not be anyone left in the category above them. If an inheritor is dead, then their share typically passes to their children per stirpes.
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How Is A Living Will Different From An Online Will In New York
A living will is a separate legal document that contains instructions on medical decisions and end-of-life care whereas, a last will and testament pertains to matters of your estate and matters of guardianship for minor children. A living will, which is also known as an advance directive, is its own legally binding document with its own requirements for making it valid. You can make both a last will and testament and a living will online for more information on living wills and other medical directives in New York, you can go here.
In New York, these are the general requirements for a living will to be recognized as valid:
- You must include your name, indicating you are the person creating the Living Will.
- You must date the document.
- You must include a statement regarding your health care wishes.
- You must sign the document in front of two witnesses.
- You must have two witnesses sign and date the document, along with a statement attesting that you were not under any undue influence when signing.
It is not necessary to notarize the living will for it to be legally binding however, it is always better to do so. You want to make sure you make copies of it as well, giving them to trusted family members and your medical providers.
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