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New York Estate Planning FAQ

(The following information applies in the state of New York only.)

What is a Will

A will is a legally enforceable written document that takes effect upon death, and directs the distribution of a person’s personal property and real estate.

What If I Die Without a Will

When dying without a will you are “intestate”. This means that the state, not you, decides how your property is to be distributed. New York’s rules for intestate succession say that your property will be distributed in the following manner:

* If your spouse survives you, your spouse receives:

– All of your property if you die without children
– $50,000.00 plus 1/2 of the rest of your estate, if you die with children (the rest divided equally among your children)

* If you have no surviving spouse, your property will be distributed in
the following manner:

– Your children in equal shares, or if you have none, to their children in equal shares, or if you have no descendants;
– Your surviving parent or parents, or if you have none;
– Your surviving sibling or siblings, or their children by representation; or if none
– Your grandparents or the children of your grandparents, 1/2 of your estate going to your mother’s side and 1/2 of your estate going to your father’s side, or if you have none;
– Great-grandchildren of your grandparents

In New York any relatives you may have that are adopted, are treated as though they are your full-blooded relative.

What are the Legal Requirements for a valid will in New York?

In order to make a valid will in New York an individual must be at least 18 years old, and have a sound mind and memory.

The will must be in writing and signed at the end by the testator. If the testator is unable to sign the will another person may do so for the testator at the testators direction and in the testator’s presence.

The will must be signed or acknowledged in front of 2 witnesses and the testator must declare in front of these 2 witnesses that the documents is the testator’s will. Each witness must then sign his or her name and address.

New York will accept self-proving wills which will allow the will to be probated without having to locate witnesses. There are specific cases when witnesses will still need to be found which include (a) the physical appearance of the will requires explanation (there are deletions, additions, etc), (b) the will has been signed by a mark, (c) testator dies within 3 months of executing the will, (d) it appears the will was not drawn and executed under the supervision of an attorney.

What is Probate?

See General FAQ, not state specific. In New York the person presenting the will for probate must be a party interested in the estate. This can include a creditor of the estate.

In New York a will is not admitted into probate unless a Court is satisfied that the will is genuine and was validly executed.

What is the difference between a Specific vs. General Gift?

See General FAQ, not state specific.

Should I appoint a Guardian for my Minor Children?

See General FAQ, not state specific.

What happens to my debts?

See General FAQ, not state specific.

Should my Will Create a Trust?

See General FAQ, not state specific.

Can I Change or Completely Revoke my Will?

You can make changes to, or revoke your will at any time. There are, however, some important rules to follow.

One way to change your will is to make a codicil, which is an amendment to your will. Another way is to make an entirely new will which revokes and takes precedence over any and all older wills.

A codicil is a separate document and must be signed and witnessed the same as a regular will or it will not be honored. Because of these requirements, it is generally easier just to make a whole new will.

It is important not to make any markings on your will once it has been witnessed and signed. This is absolutely vital. If you cross out a name or add any other writings to a will that has already been signed, you risk making the whole will invalid.

To revoke a will without making a new one all you have to do is intentionally tear it up, deface it, or otherwise destroy it. If this occurs accidentally, you will is not invalidated.

Can I revive my old will by destroying my new one?

In New York you cannot revive an old will simply by destroying the new will you have signed. It is possible to revive your old will; however this can only be done in one of three ways:

– By executing a codicil, which stated your intent to revive your old will

– By executing a new writing stating you are reviving your old will. This writing must be executed in the same manner as a valid will.

– By republishing your prior will by re-executing it in front of 2 witnesses

What happens if I marry, divorce, or have children after I sign my will?

In New York a will and its codicils are not invalidated or revoked because of a later marriage or birth of a child. In such a case the survivng spouse is entitled to take their “elective share” against the estate of the testator (see below), and the child will be entitled to the appropriate share as though the testator died intestate (see above). This is true unless the will and/or codicil shows that the spouse and/or child was intentionally excluded from the will and/or codicil.

In the case of a later divorce, any provisions in your will or codicils relating to your prior spouse are revoked unless there is an express provision within the will stating that a different intent.

Will the Federal Estate Tax Effect My Estate?

See General FAQ, not state specific.

Is my out-of-state will valid if I move?

See General FAQ, not state specific.

Can I make a handwritten will?

A handwritten will is called a “holographic will”. New York recognizes handwritten wills only in there very limited situations:

– By a member of the armed forces of the United States while in actual naval or military service during war or other armed conflict in which members of armed forces are engaged.

– Person who serves with or accompanies an armed force engaged in actual military or naval service during such war or armed conflict

– Mariner while at sea

To be accepted as a handwritten will, the making of the will must clearly be established by two witnesses.

Do I have to file my will with a court or in public records?

In New York you are not required to file your will with a court or public record during your lifetime.

Can I disinherit someone?

Depending on who it is you wish to disinherit, the answer varies.

In New York, you may leave your spouse out of your will, but unless you have signed a valid prenuptial or postnuptial agreement your spouse will be entitled to what is called the “elective share”. In New York the spouse would be entitled to the greater of $50,000.00 or 1/3 of our estate through this elective share. If your spouse is going to take an elective share of your estate this request must be filed within 6 months of the date of service of a copy of the notice of administration or within 2 years after the date the decedent died. This request must be filed with the county where the estate is probated.

In New York you may disinherit your children or any other relatives. To ensure that it is clear that you are intentionally disinheriting an individual it helps to state this in your will so there can be no question about what you intended.

Where can I get my will notarized?

Your bank is an excellent place to locate not only a notary, but also witnesses for your documents.

Do I need a Lawyer to Make a Will?

As long as a Will has satisfied all the requirements set forth by the state in which your live or the state in which you sign the Will, the Will is valid. No state has made having a lawyer draft the document be a requirement of a valid Will. The problem, of course, is that unless you regularly work as an Estate Planning Attorney you likely do not know what is required to make a valid Will or Trust. A lawyer that focuses exclusively on Wills and Trusts can help make sure your wishes are followed after your death.

Do Jointly Held or “In Trust For” Assets Pass Under the Terms of My Will?

No. Jointly Held assets pass to the other joint owner at your death and “In Trust For” assets will pass to whomever you have designated as the beneficiary. It is a common, erroneous, mistake to believe that if you draft a Will that its terms cover an IRA, Life Insurance Policy or a Bank Account that names a beneficiary. Your Lawyer should work with you to review all your accounts, deeds and IRAs to make sure your assets pass to the correct person at your death.

Can I Use My Will to Care for a Special Needs Person so They Still Qualify for Their Government Programs?

Yes, if done properly. This is a rather complex area of the law and the terms in your Will must be exact. But, if done properly a Special Needs Trust can be created to care for a Special Needs Person while keeping the Person on their existing government programs.

Can I Put My Funeral Arrangements in my Will?

Yes, but be careful, as your family will likely not contact your Estate Planning Lawyer or look at your Will until after your funeral. Make sure that your plans are in your Will and are known to key people who will be contacted at your death.

How Often Should I Review My Will?

Will reviews are situational, but as a general rule you should review Will terms annually. At our firm we send you a summary of your Will’s terms at least twice a year and do not charge for an in-person Will review if there are no changes.

Can a Will help Reduce Death Taxes?

The terms of your Will and the Estate Planning techniques used can certainly reduce or even avoid Estate and Inheritance Taxes. This is a very complex area of the law and you should work closely with your Estate Planning Lawyer.

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