Wills and Probate in New York
Everyone, no matter the size of your estate and whether you own real estate or not, needs to have a will. Having a will provides assurance that those in which you care about, whether it be your children, your home health aide, or your neighbor will receive your personal effects and any real property in the order of distribution you see fit. By implementing appropriate estate planning strategies, a simple will can save your family and friends tens of thousands of dollars in the administering your estate and in federal and state taxes.
No matter the situation or the size of the estate, an attorney should always be the one who drafts the will and guides you through its proper execution. More and more wills are challenged by unhappy family members each day. If the will was not executed properly by the testator (person making the will) and the witnesses, Surrogate’s Court will rule the instrument invalid and property shall pass according to the intestacy laws of NY State. Even if you already have a will, it is wise to have an attorney review it from time to time to make sure any positive or negative changes to estate law are accounted for in your estate plan.
What exactly is a will? Is it the same as having an estate plan?
In basic terms, a will is a legal document that names the individuals and any entities that will inherit your property upon your death. It states the person that is responsible for making sure that the beneficiaries receive their designated share, and names a guardian for any minor children. The State of New York has formal and stringent requirements that must be abided to for a will be valid. Preparing this document is not as easy as most people believe. Contrary to popular belief, writing a letter naming the persons that should receive your property and affixing your signature at the end is not a valid will.
An estate plan typically consists of a number of documents that were created with your death and the likeness of a disability in mind. An estate plan almost always includes a will, power of attorney, and a health care proxy. It can also include trust instruments, life insurance policies, and retirement accounts.
What happens to my property if I die without a will?
In New York State, should you pass away without a valid will, your personal and real property will be disposed according to the laws of the state. The intestacy law controls who gets what and their share. Your property does not escheat to the state if you have no will. Instead, it is distributed to your family members, all the way down to your first cousin if no other closer relatives exist. If you die with absolutely no family members, not even a first cousin, the property will go the state of NY.
How do I make a will?
In New York, in order for your will be deemed valid by Surrogate’s Court, the following criteria must be met:
- You must be at least 18 years old.
- You must be of “sound mind.”
- The entire will must be in writing.
- You must sign the will in front of two witnesses, who are at least 16 years old.
- The witnesses must understand that they are signing your will.
- You must ask the persons you pick to be your witnesses.
- You must sign the will at the end. Any language after your signature will be ignored.
While it is not a legal necessity, most wills include a self-proving affidavit by the witnesses attesting that the person making the will was over the legal age and of sound mind. This way your executor does not have to find the witnesses when filing the will for probate.
The assistance of an attorney is always recommended, especially if you believe that your will may be challenged by unhappy family members. When a will is drafted by a lawyer as opposed to a online software or a non-law firm, Surrogate’s Court in NYS applies a legal presumption that the will was executed properly.
What is an executor?
The executor is the person you name in the will that is responsible for fulfilling your wishes as it relates to your personal and real property. You can name co-executors that can act together at the same time. You should always name an alternate executor (ie successor) in case the first executor predeceases you or is otherwise is unable to act. Failing to name an executor will only lead to the undue delay of administering your estate. In such a case, the Surrogate’s Court will appoint an executor to act on behalf of your estate.
How long is a will valid?
A will does not have an expiration date. A will that is properly executed continues to remain in effect until your death unless you revoke or amend the document. Circumstances in your life may change, such as you may get married or divorced, or there might be a new addition to your family. It may be the case that you realize that the person included in your original will is no longer deserving of your estate. Such occurrences require a revision of the earlier instrument. There are two ways of going about in changing a will. The first is making a brand new will, thereby revoking the last. The second is drafting a “codicil,” which a separate document that contains the amendments. The codicil must be executed in the same manner as a will. The later option is recommended when the changes to your will are minor, such as changing the name of a beneficiary or adding a new bequest. Under no circumstances, should you make changes to the original will by yourself. Any changes that are made to the will that do not take the form of a codicil or a new will are not be accepted by the court.
How can a will be revoked?
A will can be rescinded several ways. You can burn it or shred it into pieces. If the original document is being held by your lawyer or the executor, you must tell them to destroy the will. Otherwise, destroying the copy will serve no purpose as the executor can still admit the original instrument for probate upon your death. The best way to revoke a will is to properly execute a new will. If you destroy your will and do not make a new will, your property will pass by the laws of the state of NY.
What is probate?
The probate process takes place in Surrogate’s Court. If the deceased had a will at the time of his or her death, the nominated executor must file it with the Surrogate’s Court for the following purposes:
- The court determines the validity of the will in order to ensure that no undue influence and/or fraud took place.
- After the proper procedures, the assets of the deceased is distributed to the named beneficiaries.
- It allows the creditors of the estate to submit their claims and get paid.
- A disinherited spouse may challenge the will or decide to collect their share based on the right of election law (one-third of the net estate).
Is hiring an estate planning lawyer to draft a will expensive?
The ultimate price of a will depends on the extent of your property and the complexity of the document. The cost of hiring an estate lawyer compared to preparing a will online or having no will is typically insignificant. The sense of security you and your loved ones receive from knowing that a well prepared estate plan exists is priceless.
If you are in need of a will or require assistance in a probate matter, contact Mishiyeva Law, PLLC., at (646) 535-1667. We are located on 85 Broad Street 18th Floor, New York, NY 10004.