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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.
