It is never too early to start crafting an estate plan, which will undoubtedly change over time. Core estate planning documents include wills or trusts, powers of attorney, health care proxies and living wills. Regardless of the type of planning you need, I will carefully analyze your assets in light of tax and non-tax estate planning goals. I am also your dedicated resource to carefully review any current estate plan and to sync it with current federal and state laws, which are subject to change annually, to ensure that your estate plan is up to date.
What is a Will?
A Will is a testamentary instrument that works on probate assets that are solely owned by the decedent upon his or her death. A valid Will original along with a completed Probate or Administration Petition must be presented to the Surrogate's Court in order to obtain letters testamentary or of administration in order to distribute an estate.
Do I need a Will?
If you have very few assets, jointly-held real property (land) or non-probate assets such as institutional accounts then you may not need a Will. However for other assets solely owned by you, you will likely need one. In addition, if you have children, you will need a Will in order to guardians for your children in the unlikely event you and your spouse or partner predecease them. Absent extraordinary circumstances, the Surrogate's Court will uphold whomever you have appointed as guardian.
Who may create a valid Will?
In New York, an adult aged 18 or older who has testamentary capacity, to wit, the capacity to understand generally what property he owns, the natural objects (persons) of his/her bounty, and how these elements relate to each other will be deemed by the Surrogate's Court to have testamentary capacity. Testamentary capacity is measured only when the Will is executed, not before or after.
What is the standard for testamentary capacity?
Testamentary capacity is a relatively low standard, considerably lower than the capacity required to enter into a valid contract.
May I just create and sign my own Will?
There are strict formalities regarding Will execution in New York. Although it is possible for a non-attorney to execute a valid Will, it is highly advisable that you work with an experienced attorney to do so.
What are "Sweetheart Wills"?
"Sweetheart Wills" are also known as mirror Wills. Two people, usually a married couple, execute identical Wills where each spouse leaves all of his or her assets to the surviving spouse. Generally, these Wills do not provide for trusts for minor children who might inherit wealth before they are mature to handle their inheritances or provide for tax planning. They must also probated which could lead to additional expenses.
What are Joint and Mutual Wills?
A joint Will is a single document executed by more than one person but is a separate distribution of property by each executor. Mutual Wills are two or more Wills which are mutually binding so that upon the death of the first spouse, the surviving spouse is limited to disposing of property as per the terms of the mutual Will. Mutual Wills are more like contracts and lock the surviving spouse into its terms, sometimes with unfair results for the spouse and the beneficiaries. A Will may be both joint and mutual.
When is a Will valid and admissible to probate in New York?
A Will executed by a domiciliary or non-domiciliary within or without New York will be valid and admissible to probate in New York if it is in writing, signed by the Will maker and executed in accordance with one of the following: the local law of New York, the jurisdiction where the Will was executed, or the jurisdiction where the testator was domiciled, either at the time of Will execution or upon the death of the testator.
Where should I keep my Will?
Absent extraordinary circumstances, if a Will needs to be probated in NY then the original must be provided. If the original can not be found, then the Surrogate's Court will presume that it has been revoked. However, if the Will original was left with its drafting attorney who can not locate it, then the Surrogate Court might relaxes these rules and will admit a copy, provided that the drafting attorney submits a Lost Will Affidavit. The Surrogate’s Court might also relax the rules for admission to probate if it was executed a long time ago. For practical purposes, the drafting attorney should retain the original Will and the client should receive both a photocopy and a conformed copy. For my clients, I offer to safeguard their Wills moving forward in my Will vault.
I have an old Will that I need to update. What is the best way to proceed?
Although you may update your Will by executing a codicil or a formal Will amendment, it is easiest to simply execute a new Will which automatically revokes all previous Wills or codicils. Never attempt to revise a Will by merely writing over it or crossing sections out because such revisions will not have legal effect.
I have a valid Will and would like to add a formal letter or list with an update to be read in conjunction with the Will. May I do so?
You may not do so. Under New York law, this is known as incorporation by reference and is prohibited.
Whom must I provide for in my estate under New York Law?
Under New York law, you may not disinherit your spouse. If you are married and fail to provide for your spouse in your Will, then upon your death your spouse may exercise a right of election to collect the greater of $50,000 or one-third of the augmented estate, absent a written valid waiver.
May I disinherit my children and other family members apart from my spouse under New York Law?
Yes you may because there is no forced inheritance under New York law. However, if you have previously provided for your children in a Will and then have another child and have not provided for him or her financially, he or she will be able to petition the Surrogate's Court for a share of your estate. Such share will be equal to what you have provided to your other children.
Under New York Law, do embryos count as children for purposes of inheriting under a Will?
No, they do not.
Other key estate planning documents
What is a power of attorney and why is it important?
A power of attorney allows its creator to appoint an agent to make some or all financial decisions on his or her behalf only in the event of incapacity. It is an important document that in the hands of the wrong person can be a license to steal.
What is a heath care proxy and why is it important?
A health care proxy is similar to a power of attorney in that a principal appoints an agent in the event of incapacity but the agent may only make decisions regarding health care related matters.
What is a living Will?
A living Will is a misnomer: it is a health care directive where its signer provides his or her wishes regarding being kept alive in the event that such could only occur via artificial means and also permits one to make anatomical gifts. This directive provides guidance to the agent of a health care proxy in deciding what should be done medically on your behalf.
I have specific instructions regarding burial. How may I relay the same to those who survive me?
You may prepare an appointment of burial remains directive or list those wishes within a Will.
Please reach out to me via email or phone below if you have a question or comment that I have not addressed above.