Your Last Will and Testament is an expression of your intention concerning the disposition of your property following your death. Besides providing for an orderly distribution of your assets after your death, a will also allows you to select the person who will handle your estate and even allows you to name a guardian for your minor children. In the state of New York, there are statutory formalities that govern the execution of a Last Will and Testament. While you can prepare a do-it-yourself will from an internet form, this is rarely a good idea.
Even the smallest mistake can render your Last Will and Testament void, leaving your loved ones to deal with the fallout at a time they should be allowed to mourn. An experienced New York elder law attorney can draft a Last Will and Testament on your behalf, which will carefully follow your plan for the distribution of your estate. Esther Schwartz Zelmanovitz, PLLC will ensure your will has no unintended legal consequences and that it is executed in accordance with the strict formal requirements of New York law.
Why You Should Have a Will—and What Can Happen if You Don’t
The number of American adults without a will has not changed much since the early 2000s. Fifty-eight percent of the adult population do not have a will; among GenXers, that number is 64 percent, among Millennials, 78 percent, and barely more than a third of all parents with minor children have a will. Women are particularly at risk, according to the report, with 80 percent of all women dying single, meaning women need to master the art of managing their assets. While it is true that most people simply do not feel the need for a will until they are elderly, the top reason stated for not having a will was simply, “I haven’t gotten around to it.” About a third of all those polled felt they just didn’t have sufficient assets to leave to anyone.
Top Question: Do I need a will?
Having a will allows you to do a number of very important things, including:
- Name an executor whom you trust to manage your assets after your death;
- Leave your assets to loved ones or to organizations of your choice;
- Ensure your loved ones do not have to deal with chaos after your death;
- Name a guardian to care for your minor children, and
- Name a trusted person to manage any assets you leave to your minor children.
If you do not have a will when you die, you have died intestate, and, under New York law, who receives your assets will depend on whether you have a spouse, children, and other living relatives. If you have a spouse and no children, your spouse will inherit all your assets. Likewise, if you have children but no spouse, your children will inherit all your assets, divided equally among them. If you have a spouse and children, your spouse will inherit the first $50,000 of your assets, as well as half of the remaining assets. Your children will inherit the remainder of the assets. The court will decide who will manage your minor children’s inheritance. This may very well not be what you would wish for.
If you have parents, but no spouse and no children, your parents will inherit all your assets. If your parents are receiving long-term care benefits, their benefits may be at risk, or their inheritance may simply be a payment to the nursing home in which they reside. If the decedent has no family at all and leaves no will, the state of New York will receive the decedent’s assets. There are very specific statutory requirements under New York law to have a valid will; it is advisable to only prepare a will with the careful guidance of an attorney who is experienced in New York estate planning.
Can I Change My New York Last Will and Testament?
As long as you have the capacity to do so, you can revoke or update your will at any time during your lifetime. As a matter of fact, what you may wish to include in your will today, can be different than your wishes in several years from now. However, because a person never knows when they may die or become incapacitated, it is responsible and wise to have valid will in place.
What Should be Included in a Last Will and Testament?
A person’s last will and testament provides instructions as to what should happen to his worldly possessions after he dies, who should be in charge of administering his final wishes, and in the case of minor children, who should take care of the orphaned children until they reach majority age.
You will want to make sure that your last will and testament properly identifies you. It normally will begin with your full name, and your city or county of residence, and should include a list of your most immediate family members or indicate that you have none. This will help identify who may have legal interest in your estate after you pass away.
Your will should declare your intent that this is your will so it is undisputed that you intended this to be your Last Will and Testament.
Further, your will should appoint the person, or succession of people that you wish to act as your Executor, the person in charge of administering the terms of your will, and the guardian for any minor children that survive you.
For the most important part of the will, you will want to clearly include who your assets should be distributed to, and if there are any specific terms or conditions for such distributions.
A will can be very basic and include a limited statement covering each of the above points, or it can be expanded with many other additional provisions. For example, you can have specific clauses that govern the care your pets and you can include certain trusts for your beneficiaries.
Can I Prepare My Own Last Will and Testament?
Technically, the law does not require you to use the assistance of a lawyer to prepare your Last Will and Testament. However, your will must follow very strict statutory guidelines in order for it to be legally binding and for the court to accept it. If a court does not accept your will when it is presented after you die, it will be too late to correct it. Without the court accepting your will, it will have no effect and will not be legally binding.
New York State, in particular, has very strict formalities governing the execution of wills. If a formality is not strictly followed, it is possible that the deceased person’s wishes may not be honored and the laws of intestacy (laws that govern when there is no will) will be applied to that person’s estate.
Further, by preparing a will by yourself, you may miss important provisions that could be beneficial to your estate plan or you may include provisions that would really be detrimental to your plan. An experienced estate planning attorney would review your full situation, and identify what should be included and not included in your will, and also, advise you on which assets would actually be governed by your will, which is often confused.
Example: Dad owned a house and 3 bank accounts. He prepared a will leaving his entire estate to his daughter. His house and bank accounts were jointly held with his son. His poor daughter was out of luck when dad died, because irrespective of what the will said, the son became 100% owner of all of dad’s assets.
Having your will prepared by an experienced estate planning attorney will not only ensure that the will was prepared with the formalities required by the law, but will also give you peace of mind that your estate plan is set up reflecting your overall wishes.
What happens if someone dies without a Last Will and Testament in place?
Why Having an Experienced New York Estate Planning Attorney is Crucial When Preparing a Will
Decisions you make when having your will prepared are only as good as your overall information regarding New York Wills. The extensive experience of the Esther Schwartz Zelmanovitz estate planning attorneys give you confidence in the information and advice provided. Once you make the necessary decisions, you can have peace of mind in knowing all documents are properly prepared and executed, and that circumstances you may not even have thought were issues, are all addressed in this important document. We understand how important it is that your wishes be carried out and we will minimize, to the extent possible, the likelihood of a will contest or challenge. Our attorneys will make you feel comfortable throughout the entire process, carefully reviewing your unique situation and drafting a will that meets your needs.
Having Your Last Will and Testament Prepared by Esther Schwartz Zelmanovitz, PLLC
Esther Zelmanovitz can help you prepare a will, but she will also review your complete estate plan to ensure that all your estate planning needs have been addressed. It is possible that just having a will may be insufficient to ensure the smooth administration of one’s estate. To ensure your estate is protected to the extent possible, you should consult with a qualified attorney from Esther Schwartz Zelmanovitz, PLLC who is cognizant of New York laws and procedures governing estates. When you need a highly experienced, highly skilled estate planning attorney, contact Esther Schwartz Zelmanovitz, PLLC.
While we are located in Great Neck, NY, we can help those located on Long Island, the five boroughs of New York City, and statewide. We can meet with you in our office in Great Neck, NY, or we can schedule a home visit to you or to an assisted living facility or nursing home. Do not wait until it is too late and your loved ones are left to deal with the state of New York—take the time to have—at the very least—a simple will prepared, then ask your Esther Schwartz Zelmanovitz, PLLC attorney about a more comprehensive estate plan.