Written By:Scott Glatstian
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At some point, everyone must consider the difficult but necessary truth about what happens after they die. This consideration usually occurs during certain life events, such as the birth of a child, the death of a relative, or a change in life status – such as a health diagnosis. While there are a host of considerations to be made, a primary concern for most people is their assets.
Do you have a plan for what will happen to your real estate after you pass on? What about your finances? Your personal belongings? It’s common knowledge that a Last Will and Testament, more commonly referred to as a “last will,” is the route most people take when planning what will happen with their assets. However, the majority of people don’t have a firm understanding of how to create a will, and what can happen if they fail to have one in place.
What Happens if I Choose Not to Create a Last Will?
If someone dies without a will, it is called dying intestate. If someone dies intestate, their property will be divided up by the courts based on New York state law, found in EPTL 4-1.1. Family members are entitled to a share of the estate if the owner dies intestate based on a strict hierarchy outlined in this law.
In the most common scenarios, if the intestate has a spouse but no children, the spouse inherits everything. If they have children but no spouse, the children get everything. If they have both children and a spouse, the spouse inherits the first $50,000 and half of the balance, and the children inherit everything else. We see fewer cases where the intestate has no spouse or children, but these assets usually pass to the closest related family member. The estate will never go to friends or distant relatives unless outlined in a will or other similar estate documents.
While these policies aim to promote fairness when no instruction exists, rarely do they align with the wishes of the deceased. This is why it is highly recommended that individuals create a last will rather than leave it up to the courts for distribution.
What Is a Last Will?
Very simply put, a last will is a written document detailing what a person wants done with their property and assets once they die. A properly written will is legally binding, and must be signed by the subject of the will, called the testator. Effectively, a last will is a set of specific instructions enforced by the courts and dictated by the testator on how to handle their affairs after death.
While naming beneficiaries is a principle goal of creating one, a last will also allows a person to:
- Name guardians for minor children
- Choose an executor to manage their estate
- Choose trustees to manage finances for certain individuals
- Describe any religious practices or rules that should be followed
The list above covers topics that will be necessary for most last wills. In special circumstances, it is also important to consider the following to include in a will:
- Setting up a trust to care for pets
- Choosing charities or other organizations to donate to
- Making sure children or spouses from a previous marriage will receive an inheritance
When creating a last will, it’s especially important to think about each area where individual circumstances could potentially create a complication for surviving beneficiaries or close friends and family.
Let’s say Beth is interested in creating a last will and consults an attorney. While working through the general topics to be addressed in her will, the attorney informs Beth her estate is larger than she thought and would be subject to significant taxes. Even worse, Beth also owns properties outside of New York, which will likely need to go through the probate process in each of those states.
Due to the complexity of these issues, it is highly recommended that Beth seek the help of an estate attorney when creating her will. The attorney will not only ensure that Beth’s will is comprehensive and properly written, but they will also spot potential issues that Beth might not realize on her own, such as the need to create additional estate planning documents like a trust.
Naming Fiduciaries in the Last Will
While naming beneficiaries is standard when creating a last will, it’s also important to name fiduciaries. A fiduciary in a last will is a person or party who will be responsible for ensuring that various elements of the will are followed in accordance with the will creator’s wishes. There are three types of fiduciaries that are necessary to include in a last will:
An executor is the person who will be responsible for administering the estate upon the passing of the will’s creator. This person is arguably the most important person to name, as they are in charge of protecting the property of the will creator until any taxes or debts are taken care of. Afterward, they will be responsible for transferring what is left to beneficiaries. Because of the work involved, New York state law asserts that executors are entitled to a commission based on the size of the estate, although the executor has the right to waive the commission.
Being an executor of a last will is a job that is as time consuming as it is important, so whoever is the executor must be willing and able to perform all the responsibilities. In New York, the executor must be at least 18 years of age, have no felony convictions, and must be of sound mind and able to perform the tasks required by executorship. Additionally, the executor must be a U.S. citizen, or a non-U.S. citizen residing in New York.
New York courts do have the ability to reject a potential executor if they have a history of dishonesty, substance abuse, or are otherwise unfit to serve. In light of the factors listed above, it is of utmost importance that an executor is very carefully selected. An experienced estate attorney is well-versed in asking the right questions to help select someone who is best suited for the role.
In the event of the death of a parent, guardianship over surviving minor children is ultimately decided by the courts. During the process of deciding upon a guardian, any assignment of guardianship captured in a last will has the greatest sway over what the courts will decide.
When considering who should be assigned guardianship, there are a few necessary considerations. First and foremost, the person must be willing to take on the role of a guardian, as raising a child is a tremendous, often life-altering responsibility. Financial assets must also be considered, as raising a child is expensive. Among other considerations, age is also a key factor, as the guardian will often need to assume the responsibility of guardianship for many years.
In some cases, the creator of the last will has specific instructions on how they want their assets, particularly their finances, distributed. In this case, they will create something within their will called a testamentary trust. A trust created in this manner will ensure that the inheritance is not squandered by children once they inherit it as young adults. Additionally, this type of trust can be created for any beneficiary that the creator of the will would like to exercise control over when it comes to the inheritance.
A person must be named within the last will who will oversee the distribution of the trust, called a trustee. A trustee will be in charge of following instructions within the will regarding distribution of the trust, and is held accountable by the New York courts.
However, much like choosing an executor or guardian, a trustee must be very carefully selected. Putting the wrong person in charge can lead to unintended consequences, and it is often a good idea to include backups for any fiduciary positions, as much time can pass before a will is executed. An estate attorney knows the right questions to ask when selecting not just a trustee, but any of the above fiduciaries essential to the successful and effective execution of an estate.
What Makes a Last Will Valid in New York State?
Each state has different processes and requirements to create a valid last will. To create a valid will in New York, the will must be in writing and signed by the testator (creator of the will) and two witnesses who are 18 years of age or older. And, these witnesses must sign it within 30 days of its creation. At least two witnesses must be disinterested parties – not beneficiaries – and failing to have two valid witnesses present will invalidate the will entirely. So although probably not very common, a will creator may want family members (who are also beneficiaries) to witness the signing just to avoid future disputes, but two disinterested witnesses must also sign, according to New York law.
While notarization is not required, it is highly recommended. Ordinarily, witnesses must be present in court during probate regarding the will. However, if the will was created decades before it is executed, witnesses might be difficult to locate. If a will is notarized, it is “self-proving,” meaning that witnesses are not required to testify during court proceedings to say they witnessed the signing; their notarized signatures are enough for the court to deem the will valid.
What Happens to the Will Before the Testator Dies?
A last will is a private document and should be stored in a safe, secure place. However, it will need to be accessible by an executor or other relevant party, especially in the untimely event of death. An estate attorney will be the best resource for planning the optimal strategy for storing and accessing a will.
Why Hire an Attorney?
Creating a last will and testament in New York can sometimes be a complicated process, and always requires careful consideration by the person making the will. There are many ways to create a last will, but only working with a qualified attorney will ensure that the will covers everything, is legally valid, and won’t give rise to any future issues for its creator or their family.
At Rosenblum Law, our experienced attorneys will work with you step-by-step to draft a final will that will prepare you and your family for the future, whatever it may present. Our wills can be created on an affordable flat-fee basis, and require just a few hours of your time to complete. Call us now to get the process underway with a free consultation.
How to Cite Rosenblum Law’s Article
Scott Glatstian (Sep 13, 2022). Creating a Last Will in New York. Rosenblum Law Firm, https://rosenblumlaw.com/estate-planning/ny/creating-will/
Scott Glatstian "Creating a Last Will in New York". Rosenblum Law Firm, Sep 13, 2022. https://rosenblumlaw.com/estate-planning/ny/creating-will/