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Last Will and Testament
What is a Last Will and Testament?
A Last
Will and Testament is a written document describing how you wish your estate to be handled upon your death. A Will should include
instructions regarding whom you wish to designate as your Executor
(a person legally authorized to manage your estate after your death),
how you wish to dispose of your remains and who will be the guardian
of any minor children (assuming no other parent is living or legally
responsible for them). Most importantly, your Will can and should be
used to specify to whom you wish to give your remaining assets
(called named Beneficiaries). Your Last Will and Testament can also be
used to provide specific instructions for a variety of other potential
matters. In order to avoid possible disputes (as they can be costly
legal actions) after your death, your Will needs to be written as
clearly and with as much specificity as possible. Estates that consist
of substantial real and personal property and where there are multiple
beneficiaries, generally should be drafted by an attorney in order to
assure that your wishes are followed and that expenses associated with
the distribution of your estate are kept to a minimum.
What if I don't have a Last
Will and Testament?
If you die without a valid
(legally acceptable) Last Will and Testament, you will be considered to
have died intestate. Generally, this means that your estate will
be distributed in accordance with the intestacy laws of the state you
reside in when you die. The distribution of assets under intestacy laws
may not be in accordance with the way you would prefer to see your
assets handled. In addition, any other decisions about how your remains
will be handled, who will become guardians of minor children, etc. will
be made either by a judge or by a person appointed by the court to make
these decisions. Having a legally valid Last Will and Testament assures
that all of these matters are handled in accordance with your wishes.
What is a legally valid will?
A Last Will and Testament
will be considered valid when submitted to probate if it complies
with the statutory or case law requirements of the state in which the
Will was executed. In New York State, there are very strict
requirements for Wills that were executed in New York. A legally valid
Will must be in writing, signed by the testator (the person who’s
Will it is) and it must be witnessed by at least two adults. The
witnesses must be told by the testator that the document is that
person’s Last Will and Testament (this is called "publishing" the Will)
and either signed in their presence or told that the signature on the
Will is that of the testator. Witnesses must sign the Will within 30
days of it being signed by the testator. A beneficiary of the Will
should not be used as a witness; this may invalidate the gift to that
person. In order to speed the probate process, an attorney will usually
have each witness also execute an affidavit regarding their witnessing
of the Will.
Can I write and execute my own will?
Generally, the answer is,
yes, as long as the Will complies with all the statutory and case law
requirements for a valid Will, as noted above. Some states accept what
are known as holographic Wills. These are documents that were
written and signed by the testator and provide some clear indication of
their wishes upon their death, but,do not meet the requirements of
having been witnessed, published and attested to by the person who has
written the Will. In New York State holographic wills are not
valid (except under very rare and limited circumstances);
instead a person who died with only a holographic Will be treated as
having died intestate. However, if a person executed a holographic Will
in another state that does deem holographic Wills to be valid, New York
will recognize that holographic Will. In general, an attorney will
draft a legally valid Last Will and Testament for a reasonable fee, the
size of which will be determined by the complexity of your estate. This
will assure that your final wishes are followed by the courts and your
estate is distributed as you desire. It can also assure you that your
beneficiaries will experience a minimal amount of delay in receiving
your gifts to them.
Estate Planning
If the total value of your estate is
substantial, your estate may be subject to payment of federal estate
tax. There are strategies that you can employ to minimize the impact of
estate taxes.
For more information about estate planning,
click here.
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