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Writing Your Will: Tips to Ensure Your Wishes Are Respected

Wills

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Families in New Hyde Park want to know that their life’s work stays protected after they pass away. A last will and testament acts as a primary tool to ensure your belongings go to the people you have named as a beneficiary. While many people consider drafting these documents alone, New York law requires specific steps to make a will valid.

Is My Will Legally Binding?

A properly signed and witnessed will is a legally binding document in New York. Some believe an executor can simply choose to ignore the instructions in a will; but this is a serious legal error. Under the New York Estates, Powers and Trusts Law (EPTL), an executor has a fiduciary duty to follow the will.

If an executor fails to carry out the instructions, the Surrogate’s Court may take action. The court has the authority to remove the executor or hold them personally liable for financial losses through a surcharge (NY SCPA § 711). Working with an estate law and probate attorney helps you follow the formal legal steps required for the court to accept your will.

How Is a Will Carried Out?

The first step in the process involves naming an executor. This person holds the legal responsibility to settle debts, manage assets, and distribute property according to your wishes. Because the probate process involves court filings and tax requirements, some people choose to name an attorney as their executor.

Using a professional as an executor may help prevent family conflicts. It provides a neutral party to handle distribution and helps ensure the estate meets all legal deadlines. This can reduce the stress on your family during a difficult time.

What Happens if I Don’t Have a Will?

When someone dies without a will, they are intestate. In these cases, your property enters a legal process called probate. Without a will, the court decides who receives your assets based on a strict hierarchy in New York law. This usually follows a specific order:

  • Spouse and children
  • Parents
  • Siblings

This court-ordered distribution may not reflect your actual wishes. Dying without a will often leads to a longer and more expensive court process for your heirs.

Using Living Trusts and Health Care Proxies

A will is only one part of a complete plan. A living trust is another strategy that helps your family stay out of the probate court entirely. In a trust, you transfer ownership of your property to a trustee. When you pass away, the trustee distributes the assets directly to your beneficiaries without court intervention.

Planning for incapacity is also necessary. In New York, the Health Care Proxy serves as the primary medical decision-making tool. It allows you to name a person you trust to make medical decisions for you if you cannot communicate (NY PBH § 2981). While a living will provides guidance on your wishes, the Health Care Proxy gives your representative the legal authority to act on your behalf.

Protecting Your Legacy in New Hyde Park

A will should provide security for your family. At Davidov Law Group, we assist clients with the legal complexities of estate and probate law. We help you draft documents that meet the strict execution standards of New York to minimize the chance of a will contest.

Our attorneys handle the legal drafting while considering the financial needs of your estate. If you need to draft a will or update an existing plan, call Davidov Law Group today at 516-253-1366 to schedule a consultation.

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Dying Without a Will in New York

Planning for the future ensures that assets are distributed according to your wishes. A will allows individuals to determine how they want their property and possessions divided after death. Unfortunately, many people pass away without a will, a situation legally referred to as dying “intestate.” In New York, intestate succession laws govern how an individual’s estate is distributed when there is no will. The consequences of not having a will can be significant and may lead to unintended consequences for surviving family members and beneficiaries.

The New York Intestate Succession Law

When an individual dies without a will, their assets are distributed according to New York’s intestacy laws. These laws prioritize family members regardless of the deceased’s wishes or relationships.

How Are Assets Distributed?

The estate is distributed according to New York’s legal guidelines when a person dies without a will. These rules determine who receives the deceased’s assets and in what proportions, ensuring that the closest living relatives inherit first. Intestacy laws apply only to assets solely owned by the deceased. Jointly owned property, life insurance policies, and accounts with designated beneficiaries bypass these laws and go directly to the named recipients.

Surviving Spouse and Children

In cases where the deceased was married and had children, the first $50,000 of the estate goes to the surviving spouse, along with half of the remaining balance. The other half is divided equally among the children. This rule ensures that the spouse and children receive financial support, but it may not reflect what the deceased would have wanted, particularly if they wished to allocate different amounts to each heir.

Surviving Spouse with No Children

The surviving spouse inherits the entire estate if the deceased had no children. This is a relatively straightforward scenario, but assets cannot be left to other relatives, friends, or charitable organizations without a will.

Children with No Surviving Spouse

If the deceased had children but no surviving spouse, the estate is divided equally among the children. The inheritance may be placed in a custodial account until adulthood if any children are minors.

Surviving Parents with No Spouse or Children

If the deceased had no spouse or children, the estate is passed on to the surviving parent(s). This ensures that the closest living family members receive the assets.

Siblings with No Spouse, Children, or Parents

The estate is distributed equally among the siblings if the deceased had no surviving spouse, children, or parents. This can sometimes lead to disputes, especially in cases where the siblings have had little contact with one another.

No Close Relatives

If no eligible relatives can be located, the deceased’s assets may pass to the state of New York. This means the state will take ownership of the estate rather than distributing it to distant relatives, friends, or charitable organizations.

Lack of Control Over Asset Distribution

One disadvantage of dying without a will is the lack of control over how assets are distributed. New York’s intestate laws may not align with the deceased’s wishes. For example, if an individual wanted to leave a portion of their estate to a lifelong friend or a charity, that would not happen under intestate succession laws.

Family Disputes and Legal Complications

Dying without a will can result in family disputes, especially when multiple heirs are entitled to a share of the estate. Disagreements may arise over how assets should be divided and who should receive specific properties or valuables.

The absence of a will may also result in expensive legal battles if family members challenge the state’s distribution plan. This delays inheritances and may reduce the estate’s overall value due to legal fees.

Guardianship for Minor Children

Not having a will can create uncertainty about guardianship for parents with minor children. A will allows parents to name a legal guardian for their children in the event of their passing. Without this designation, the court will determine who will care for the children, often defaulting to a close relative. This may not always align with the parents’ wishes or be in the children’s best interests.

Higher Probate Costs and Delays

Estate administration is a legal process that settles a deceased person’s estate. The more complex the estate, the more time-consuming and costly it can become. Without a will to give clear instructions, the court must take steps to determine rightful heirs and appoint an administrator according to state intestacy laws, which can delay the distribution of assets. 

Because the estate administration process requires several steps, it can become expensive due to court fees, attorney fees, appraisal costs, and the time it takes to resolve any disputes that may occur, which can reduce the estate’s overall value.  This may leave heirs with less than what they might have received if a will had been in place. 

No Provisions for Unmarried Partners or Non-Biological Family Members

New York’s intestate succession laws do not recognize unmarried partners, stepchildren, or close friends. This means that long-term partners who are not legally married could be left with nothing if their significant other dies without a will. Stepchildren who were not legally adopted will not automatically inherit any part of the estate unless specifically outlined in a will.

Protect Your Legacy – Davidov Law Group Provides the Legal Help You Need!

Dying without a will in New York can leave your loved ones facing costly legal battles, long administration delays, and unintended asset distribution. Don’t let the state decide what happens to your estate! Davidov Law Group can help you create a will that ensures your assets are distributed according to your wishes. If you need to draft a will, we provide personalized legal guidance to protect your family’s future. Call 516-253-1366 for a complimentary session.

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What is a Will, and Why is it Important?

A will is a relatively straightforward document that states how you wish to handle things of importance upon your death. Items such as who will receive assets or property or become guardians of your children are included in a will.

Another critical aspect of a will is who will oversee your affairs and handle them according to your wishes after you are gone. The person appointed with this responsibility is the executor. An executor is a critical role and should not be taken lightly. It is imperative to choose someone for this role who is highly trustworthy, efficient, and able to manage your affairs as you see fit. They may need to be resourceful, as well, and reach out to attorneys or accountants as necessary to ensure your assets are handled effectively. You can also name a secondary executor to step in should the primary executor not be able to carry out the duties when it comes time.

Creating a will is essential to ensure your wishes are communicated and carried out upon your death. Without a will in place, the State of New York will need to determine how to distribute your assets and who will become guardians of your minor children should the other parent not be able to care for them.

What Ensures a Will is Legal in New York?

For a will to be enforceable, it must be written, dated, and signed by you and two witnesses. It is best practice to have your witnesses add their addresses below their signatures. The witnesses don’t need to be aware of the information in the will, just that it is your will, and they are signing as witnesses. From a legal standpoint, a handwritten will without witnesses is legal in New York but is not recommended, so it is best to take the extra step of having two witnesses.

Can I Make Changes to My Original Will Once Completed?

The best way to achieve changes to an existing will is to create a new one. By doing so, you can ensure that the process is handled effectively via the help of a trusted attorney and that your new will is enforceable and complete.

Common reasons to change a will in the future may be that tax or estate laws have changed in your state, relationship status has changed, or you have acquired significant assets since the creation of the original will.

A will can not be changed or revoked simply by crossing out verbiage in the document. You can have a codicil to a will drafted, essentially an addendum. However, the best practice is creating a new will to reflect the changes.

Do Lawyers Keep Original Copies of Wills in New York?

A lawyer may choose to keep your will on file and in a safe place but is not required to do so in New York. It is an excellent option to have an original on file with your lawyer as they typically have fireproof options for original documents, and they can assist the executor upon the client’s death in the initial steps based on the original will.

Your lawyer may deliver you an original copy of your will for you to oversee. The following section will discuss the best and worst places to store your will.

Where Should I Store My Will?

As you can imagine, a will is an essential document to create and store so that nothing happens to it. In most cases, New York probate court will require the original document rather than copies of the will, so you must be able to present the original will when necessary.

If you have a waterproof and fireproof safe deposit box at home, you can place the document there.

If you work with an estate attorney that offers storage of your will in the attorney’s office, this is a great option. They are familiar with you and your wishes as they helped you create your will, so they can easily navigate the transition and guide your executor through the critical steps necessary for your final wishes after your death.

In the state of New York, you also have the option to store your original will with the Surrogate Court. Many find this option appealing because the fees associated with storage are minimal, and as the will is filed with the probate court, there is no room for error upon your death or mistakes regarding your not having a will in place. The drawback to this option is that if you need to make changes to the original wills or create a new will, you may be charged additional fees to retrieve and replace your existing one.

Regardless of where your will is stored, it is crucial to let the executor know where they can access it. They will need to easily access it upon your death to carry out their responsibilities without trying to hunt down a secret hiding place that was not communicated to them and risk issues with your estate.

Do I Need a Lawyer to Create a Will?

The simple answer is no, but it may not be the best approach to handle such an important document alone. An experienced estate lawyer can ensure that you have included all pertinent details, have planned accordingly, and have created a legally enforceable will. After all, you have spent more of your life working towards building your estate, so let’s work together in drafting your estate planning documents to ensure that hard work is protected when it matters the most to your family.

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Handwritten Wills: What You Need to Know

It’s true that you don’t get to take your possessions with you when you die, but you can make sure they end up where you want them to go. When you create an estate plan, you get to decide who will be beneficiaries of your estate and how your assets will be distributed. And an important part of an estate plan is your last will and testament. Find out what the rules are for how wills are created and under what circumstances a handwritten will is valid in the state of New York.

Is a Handwritten Will a Valid Will in New York?

In the state of New York, a will must be dated and signed by the testator. The testator must be at least 18 years old and of sound mind. The will must also be properly signed by two witnesses. If all of these are true and the will is simply handwritten instead of typed up, the will is legally valid as long as it is clear and legible.

A will that is handwritten but is not properly witnessed is called a holographic will. In general, a holographic will is not legally valid in the state of New York except in very specific circumstances, discussed below. Even if a holographic will meets those criteria, it may have a higher chance of being challenged during probate.

Rules for Holographic Wills

A holographic will is only legally valid within New York if one of the three situations apply:

● The testator is a member of the U.S. armed forces and is in active duty service during a war or other armed conflict. “War” has a loose legal definition here and can be either declared or undeclared, but armed forces have to be specifically engaged in the conflict for this to apply.
● The testator is not a military member but is someone who “serves with or accompanies” armed forces engaged in an active military conflict.
● The testator is a “mariner while at sea.”

There have been a few other specific cases where the New York probate courts have upheld a holographic will as valid, but these are rare, and the majority of holographic wills are deemed invalid. If you’re not sure if your situation meets the definition of one of the above criteria for a holographic will to be accepted, talk with a wills attorney who can provide more information.

What Happens If a Will Is Deemed Invalid?

If a will is set aside by the probate courts because it is invalid, there are generally two options. Either the estate is distributed according to the instructions in a previous will, or the person is declared intestate — meaning having died without a will — and the state laws for distributing assets go into effect. The state of New York has specific rules for how intestate estates are distributed:

● If there is a surviving spouse but no children, everything in the estate passes to the spouse.
● If there is a spouse and children, the spouse gets the first $50,000 of the estate and half of what remains. The other half is distributed among the deceased’s legal children.
● If there are children but no spouse, the children inherit the entire estate to be divided equally between them.
● If the person dies without a spouse or children but has immediate family members, the deceased’s parents and/or siblings inherit the estate, depending on what family is there.
● If the person dies with no living relatives, the estate reverts back to the state of New York.

Keep in mind that for these guidelines, legal children means that it is the person’s biological children or adopted children. If the child was born outside the marriage, legal paternity must have been established for the child to inherit.

Working With an Estate Planning Attorney

To give your will the best chance of going through probate without an issue or being challenged, it’s best to work with an estate planning attorney who can help you draft a will and ensure that it meets all the legal requirements. An attorney can help you understand what laws apply to those you name as your beneficiaries. For example, in New York, you must leave some of your estate to a living spouse and any minor children. If you don’t, the will can be set aside because the law requires that you maintain adequate provisions for dependents.

A lawyer can also help you understand how your will functions as part of your larger estate plan and whether other tools, such as establishing a trust, may be a better option to handle some of your assets. A will is a valuable tool, but it does have its drawbacks. For example, the probate process can be quite lengthy, so if there is an immediate need for property or funds to be used directly after your death, these may be inaccessible for several months if they are in a will as opposed to a trust.

There are many reasons someone may consider a handwritten will, but it’s important to understand that trying to create a will on your own without following the proper guidelines can mean that your will ends up being thrown out and your estate may not be distributed according to your wishes. If you need to create a will or want to know how to alter or rescind a will that is already made, contact Davidov Law Group at (516) 928-6594. A member of our team can help you schedule a consultation so you can understand what you need to ensure your will is valid and how to protect your estate.

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While nobody ever wants to entertain the thought of their own death, it is an inevitability that must be planned for ahead of time. One of the most important ways for you to plan your final affairs is to draft a thorough and legally sound last will and testament. This document will provide your surviving loved ones with clear instructions regarding how you want your property and assets to be distributed. But, like many legal matters, creating a will can be complex and somewhat confusing at first glance. Where do you even begin, and what exactly should you include within your will’s language? Our firm has put together a quick list of matters that must be addressed when drafting your will to ensure your wishes are properly memorialized.

  • Decide what property to include: To begin, make a list of your significant assets and determine which you will include in your will and which you will distribute through other means. While real property, vehicles, and more may be included within your will, assets such as jointly-owned property, proceeds of a life insurance policy, or money in certain retirement accounts may require alternative methods to be distributed, such as a payable-on-death account or a living trust. Likewise, it is important to remember that if you are married, both you and your spouse must each make a separate will, and you may only leave your share of assets you jointly own with your spouse. An attorney can help you sort through your assets and determine the most appropriate method for each.
  • Decide who will inherit your property: Once you decide which property to include, your next priority will be to determine who gets what. While this may seem relatively straightforward, things can get complicated if you are considering leaving certain individuals out of your will, such as your spouse or children. Once you decide, make sure to include alternate beneficiaries in case your first choices do not survive you.
  • Name an executor: Every will must name someone to serve as an “executor” or “administrator” who will carry out its terms, including distributing your assets and ensuring that your final debts are paid. Make sure you choose someone you trust and that they are willing to serve this responsibility when the time comes.
  • Choose guardians: If you have children younger than 18, it is imperative you decide who you want to raise them in the unlikely event that you and your child’s other parent should be unable to care for them. Prospective guardians must be at least 18 years of age and should have a genuine concern for your children’s welfare. It is also important to consider any special needs of your children, the health and financial stability of your chosen guardian, and whether or not they share the same values.
  • Choose someone to manage your children’s property: If you have chosen to leave property or money to your minor children, you must also choose someone to manage whatever they inherit until they become of age. This person may be considered a property guardian, a property custodian, or a trustee depending on your state.

Prepare for the Future with Davidov Law Group

While many websites provide do-it-yourself will creation forms, they often contain legal loopholes or are so generic that they fail to cover all issues that may arise in the event of your death. At Davidov Law Group, our skilled Nassau County estate planning attorneys can walk you step-by-step through the process of creating a comprehensive will and estate plan, ensuring all aspects of your and your family’s future are covered.

To find out more about what our 25+ years of experience can do for you, call (516)-928-6594 or contact our office online today.

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We have written many times in this space that you need to update your Will whenever there is a significant change in your circumstances. There is another reason that you should update your Will from time to time. You should also update you Will when the life circumstances of your Executor change significantly.

In the early years of the United States, if one of the goals of your estate was to free slaves, then Thomas Jefferson would have been an excellent choice to designate as the Executor in your Will. Out of all of the founding fathers, Jefferson was the most outspoken in condemning slavery. The only reason he did not free his own slaves was that as property under the law, the slaves were subject to the claims of Jefferson’s many creditors. In 1798, a wealthy man named Tadeusz Kosciuszko nominated Jefferson to be the Executor of his Will, which left money that was to be used to purchase and free slaves. However, by the time that Kosciuszko passed away in 1817, Jefferson was in poor health and had to decline to serve as Executor. Eventually, litigation over the estate ensued and the money was never used to free slaves.

Make sure that you update your Will and name a new Executor when the person designated is no longer able to serve in that capacity.

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It’s hard to think of almost anything good that has come out of the scandal at Penn State. When children are abused, it’s never good. Now that Jerry Sandusky has been convicted by a jury of his peers, however, it’s time to ask what we can learn from the scandal. There are certainly a lot of lessons that should be learned by university administrators and athletic departments, but this is an estate planning blog. As it turns out, there is an estate lesson in the scandal too.

If you know anything about the scandal, you have heard the allegations that head football coach knew about Sandusky’s abuse of children and helped to cover it up. Of course, that may not be the case and we might never know what happened as Paterno passed away shortly after the scandal broke. He did not tell his side of the story. However, his family might not have gotten the lesson about keeping things from public consumption as they requested that Paterno’s Will be sealed by the Court. After a media outcry, the family backtracked in a couple of days and released the Will to the public.

As it turns out, there was nothing controversial in the Will and it was originally sealed for privacy reasons. However, the lesson to be learned is that when you hide things from a public that wants to know, you create more speculation than the situation often calls for.

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People are often similar and predictable. It is no different when it comes to their estate plans. Most people want the same thing. Almost universally, when a husband and wife in a first marriage devise an estate plan they want the same thing: when the first spouse passes away, everything goes to the surviving spouse. When the second spouse passes away, everything goes to the children. Executing this plan with joint Wills is not always the best option.

Most people do not want to think about it, but there is always a possibility that a surviving spouse will get remarried. It happens all the time. The new spouse is entitled to a share of the surviving spouse’s estate by law. This may or may not leave enough of the property available for the original couple’s children to receive the originally contemplated inheritance.

The initial goal of most couples is laudable. It is an excellent idea to leave your assets to your surviving spouse with the plan that everything will eventually pass on to your children. It is not the idea that is wrong. It is often the execution. Circumstances change and what we expect to happen often doesn’t. Talk to an estate planning attorney about ways that you and your spouse can accomplish the same goals in ways that take changing circumstances into consideration.

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To create a valid will in New York, you must comply with the New York Estates, Powers, and Trusts Law or “EPTL.” The New York EPTL governs all wills and trusts drafted by New York residents. Once your executor or custodian probates your will, the New York Surrogate’s Court Procedure Act or “SCPA” govern the procedural parts of your estate administration. Other various state, federal and common laws may apply to your will. Generally, the state statute governs most aspects of wills and estates in New York.

What do you need to do to create a valid will in New York? At a minimum, your will must be in writing, and you must comply with the statutory testamentary formalities established by the New York EPTL. In very limited situations, an oral will may be valid, but because of the limitations, we recommend drafting a written will. You must also sign your will in front of two independent witnesses who will also sign your written will. You and your witnesses will include addresses in your will and participate in a “will signing ceremony.” During the ceremony, you will state that you are signing your will. According to the NY EPTL, you must be at least 18 years old and legally competent to sign a contract or will. This means that you are of sound mind and legally capable of understanding that the document that you are signing is your will.

Check out our blog tomorrow to read Part 2 of What are the Necessary Ingredients of a Valid Will.