Read This Before You Get a Will!
If you plan on getting a last will and testament, you need to read this article. It may save you and your family a large sum of money.
First Rule: Hire An Attorney. I cannot stress this enough. If you are considering making a Will, you need to hire an estate planning attorney to ensure that it is properly prepared. Not a personal injury attorney or a general practice attorney, but an actual estate planning or probate lawyer. Creating a will is far more nuanced than you would expect. If certain formalities are not met, which I will discuss later in the article, the will is not valid. As a probate lawyer in New York, I have seen many cases where named beneficiaries in a will lost large sums of money because the will was self-made or prepared by a non-lawyer. Estate lawyers know the ins and outs of proper will execution. Quick note: Avoid going to document preparation agencies. They don’t have any skin in the game. An attorney will take extra care in ensuring the will execution is done correctly.
Why Do I Need To Go To a Estate/Probate Lawyer Specifically?
If you create a will and it is challenged by family members who have been left out, one of the first things the Court looks at is who prepared the will. Whenever a will is attorney drafted, the Court applies a special rule that presumes the will was prepared properly. The party challenging the will has to show that the will was not done correctly. Lawyers who specialize in estate planning typically employ the same procedure in every will signing that they can testify to in order to prove proper will execution. Your case is substantially stronger if an estate lawyer created your will and was the one that guided you during execution and signing of the will. The judge will make the assumption that the estate lawyer has the experience in creating wills and applies a benefit of the doubt in assuming the estate lawyer did their job correctly.
Second Rule: Know What Makes a Will Valid. First, understand that you have to be 18 years of age or older. Just as the rule that minors cannot enter into valid contracts, the same principle applies with the creation of a will. Second, you have to have sound mental capacity to create your own will. What that means is you have to be capable of making sound decisions. In the event that you are suffering from dementia and heirs are disinherited, anticipate a will challenge on grounds of unsound mind. Before going to get a will done, pay a visit to your primary care physician. Have him or her jot down somewhere in your file that you were of sound mind. Maybe mention that you are planning to make a will. This is important to do because if someone contests your will stating you were lacking capacity, the file sitting in your doctors office which was updated a few weeks before your will signing can show otherwise.
Learn more about the probate process:
The last will and testament is intertwined with the probate process. They go hand in hand. Learn what probate is here. Also, if you have any questions on what else an estate lawyer can do for you, read more on what an NY Estate Lawyer Does.
Third Rule: Will Execution. If you didn’t pay attention to anything thus far, pay attention to this section. You will be surprised how often loved ones lose fortunes because of minor technicalities. Let’s say your will is printed and now it must be signed. The names of the beneficiaries are in place and your wishes are documented. All that is left is for your signature to be affixed. Right? Wrong! What must be done next is that you MUST “publish” your will. Publication requires that you tell at least two witnesses that this is your will that you are about to sign.
Here is the exact way you should do it:
I will break the publication process down step by step:
- Have your two witnesses come into the room where the will signing will take place. Make sure no one has signed the will.
- Introduce yourself to the witnesses and tell them they are in the room with you today to witness you sign the will.
- Specifically ask the witnesses if they would be a witness to your will.
- Make a public announcement that you are of sound mind and you understand everything written in the will before you.
- Sign your will in front of the two witnesses. Make sure that they watch you sign your will.
- After you sign the will, the witnesses sign it after you. NEVER SIGN YOUR WILL OUTSIDE THE PRESENCE OF THE TWO WITNESSES & MAKE SURE THEY SEE YOU SIGN YOUR WILL FIRST.