What is a will?
It is IMPERATIVE that a will be established for various reasons. Specifically, it ensures your last wishes are not only documented, but implemented as well. It is also imperative you contact a wills lawyer in New York to guide you through the entire process of creating a will.
What exactly is a will? It is a legal document that expresses your choice as to how you want your property to be disbursed and to whom it should be transferred to. The will also sets forth who should take care of your children in the event they are minors. There are several types of wills.
- A testamentary will is the traditional will that people generally tend to opt in for. It is a formal document that is signed, notarized, and includes the attestation of witnesses in it’s making.
- An oral will is not documented but is expressed verbally in front of witnesses. We do not recommend this option.
- A holographic will is documented but it lacks the traditional need for any witnesses. Again, we do not recommend this type of will either.
- A Living will is completely seperate from all of the above varieties because it does not actually discuss the transference of property. Rather, it only gives directives as to what should happen to you when you become incapacitated and you are subject to life support.
The Benefits of a Will
When you have a will, there is an added measure of control to your affairs. YOU decide who should receive your property. YOU decide what should happen with your minor children and who should have custody of them. YOU decide who to include and exclude in your will. If there is no will, there is a possibility the court will make all of these important decisions on your behalf.
Another benefit to a will is keeping peace within the family. You have seen it in movies and read it in books where a large estate was at stake and there was no formal will. Relatives become enemies and friends become foes. This is completely unnecessary and completely avoidable when a will is created.
Be aware although you can specify what should be transferred and to whom in your will, certain assets are not included under the umbrella of a will such as the proceeds from life insurance policies, community property, & retirement assets just to name a few.
No Will In Place
Fact or fiction: If no will is in place, the government takes your assets for good. FICTION (at least in America). In a situation where no will is in place, and please try to avoid this from happening, the court typically decides what your heirs should get based on a specific formulas in place. Usually the spouse gets half of your property and your children get the other half. Let’s say there is a house in which your spouse lives in but everything now has to be split, chances are the house will need to be sold in order to satisfy the judgment.
Issues with Wills
One of the biggest concerns with a will is the fact that it has to undergo a processes called probate in Surrogate’s court. When the will is submitted to Surrogate’s court, the court must now validate the will to ensure it is in fact real. That is essentially what the probate is. This process can take months and even years. Also, a will contest could occur during the probate period. That is when individuals file a petition contesting the validity of the will by either stating the entire will is fraudulent, the decedent was coerced in making the will, or the decedent was not in a sound state of mind when drafting the will.
All of this can lead to long extensive legal battles, attorney fees, and other expenses required to be paid that will be incidental with the situation.
How do you ensure your will will be upheld?
Three items come to mind that will help show the court the will is valid:
- Prior to drafting the will, go for a medical check up. Request for the doctor to attest to the fact that you were mentally sound.
- Have the will notarized and gather at least four witnesses for the will.
- It is ok to get a little creative. You probably own a smart phone. Take a video of you reading the will with some of your witnesses present.
Have you ever seen an actual will? Usually it is several pages with various clauses and directives by the decedent. Finally, the last page has space for all the signatures and notary stamps. I think this is certainly adequate when you have a traditional family and the will merely emphasizes that your property should go to your children and your spouse should now be the guardian of the children.
Let’s say your situation is not very traditional. For example, say you are a same sex couple and you have a child living in your home who you care for as your own but you never actually went through with an official adoption. Or suppose you care more for your best friend then you do for your immediate relatives and you prefer she should be your only beneficiary and everyone should be disinherited. Do we recommend a will to have all of the signatures on the last page? As an added measure, whenever you have directives and clauses that are very impactful (like disinheriting an immediate family member), have space available near that specific clause for your signature and the signature of your witnesses. This just simply reinforces your emphasis on the clause and directive.
How to make a will?
Yes, there is a ton of software and templates out there where you can go ahead and create your own will. There are also various document agencies that can make a will for you at their premises. We, however, highly recommend you instead visit a lawyer who specializes in estate planning, will and trust drafting, and estate administration. Why? They have the training, the experience, and the education to understand of all the various nuances that appear in wills which could adversely affect your beneficiaries. It may cost more then just using a template, but that added measure of security and predictably will all be worth it.