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 must be presented to the Surrogate's Court along with a completed Probate or Administration Petition in order to commence a Probate or Administration Proceeding.
Do I need a Will?
- It depends but it is likely that you do. If you have very few assets, real property (land) or non-probate assets such as institutional accounts then you may not need a Will. However for probate assets solely owned by you, you will certainly need one. In addition, if you have children, you should certainly have one because you may appoint a guardian for your child in the event that both you and your spouse or co-parent predecease your children. Absent extraordinary circumstances where it would not be in the best interests of the child to do so, the Surrogate's Court will uphold whomever you have appointed as guardian. Trusts, as private documents, are not the appropriate documents to appoint guardians.
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 bounty, and how they relate to each other will be deemed by the Surrogate's Court to have testamentary capacity. Testamentary capacity is evaluated by the Surrogate's Court 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?
- Apart from the complexities in drafting proper Will provisions, 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.
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. It does not provide for any trusts for minor children who might inherit wealth prior to being sufficiently mature to handle same or provide for tax planning, and must be 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 any 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. 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 and signed by the testator and executed and attested in accordance with the local law of New York, the jurisdiction where the Will was executed when it 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 Will must be provided. If the original can not be found, then the Surrogate's Court will deem it to be a strong presumption that it has been revoked. However, if the Will original was left with its drafting attorney who then loses it, then the Surrogate Court relaxes these rules and will admit a copy, provided that the drafting attorney submits a Lost Will Affidavit. Therefore for practical purposes, the drafting attorney should retain the original Will and the client should receive a conformed copy.
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, to wit, a formal Will amendment, it is easiest to simply execute a new Will which revokes all previous Wills or codicils. Never attempt to revise a Will by merely writing over it or crossing sections out because such revisions not have legal effect.
I have a valid Will and would like to add a formal letter with an update to be read in conjunction with the Will. May I do so?
- You may not do so. Under New York law, incorporation by reference is prohibited.
Whom must I provide for in my estate under New York Law?
- Under New York law, you may not disinherit your spouse. Therefore, if you are married and fail to provide for your spouse in a Will or another way, upon your death your spouse may exercise what is called a right of election to the greater of $50,000 or one-third of the augmented estate, absent a written valid waiver from your spouse.
May I disinherit my children and 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, if you have not provided for that child financially, he or she will be able to petition the Surrogate's Court for a share in your estate. The share will be ratable to what you have provided to your other children. If the Will maker executes a Will and then has a child and leaves him a very limited disposition, then he will be able to collect an intestate share.
Under New York Law, do embryos count as children?
- No, they do not.
What are my duties as an Executor of a Will?
- An Executor collects and distribute assets pursuant to the terms of a valid Will once it has been probated and letters testamentary are issued to him or her. An Executor in New York must be at least 18 years old and of sound mind.
I was named Executor of a Will but do not wish to serve. Is my appointment required?
- You are not required to serve as an Executor under a Will. Normally, a Will includes an alternative Executor. The Surrogate's Court may request a written renunciation that you do not wish to serve.
The Executor named in a Will contains a non-US person. May that person serve as an Executor?
- Under most circumstances, New York law requires the Executor to be either U.S. Citizen or a non US citizen living in New York. A Surrogate will not appoint an Executor who is not a U.S. Citizen and lives outside of New York unless a Co-Executor who is a resident of New York is appointed and the Surrogate approves.
Who is ineligible to serve as an Executor of a Will?
- In New York, convicted felons, infants or incapacitated persons, and those who are appointed yet are found to be unqualified because of "substance abuse, improvidence, a want of understanding" or who is otherwise deemed as unfit to serve.