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Educational Brochures
Your Will: A Consumer's Guide
What Is A Will?
It is a written document which names the persons who will receive the deceased's property after death. The will describes the manner of distribution, and appoints an executor to see to it that the debts, funeral and other expenses of the estate are paid and distribution is made to the beneficiaries. The executor carries out these duties, usually with the guidance of an attorney, and always subject to the supervision of the Surrogate's Court.
A will disposes of all assets which are in a person's name alone when he or she dies. Generally, things like life insurance and pension plans pass outside of the will to named beneficiaries. Similarly, joint property and trust bank accounts usually pass to the named survivor outside of the will.
What Are the Requirements for a Valid Will in New York?
Every person 18 years of age or over, of sound mind and memory, may dispose of all of his or her property by will. It must be witnessed by at least two persons who should not be beneficiaries under the will. A will must be executed in strict compliance with the law or it won't be valid.
How Long Is A Will Good?
If the will is valid, it remains "good" until revoked. Changes in your marital status, deaths among beneficiaries, a desire to eliminate gifts to certain beneficiaries, changes in property holdings, additions to your family or those of your heirs, may require a revision of the will. A periodic consultation with your lawyer is recommended. Sometimes a new will is necessary, but in certain instances a codicil, an addition to a will, may suffice.
A will or codicil should be prepared by a lawyer and signed by you and the witnesses under the supervision of a lawyer. Failure to observe statutory requirements for proper execution of a will can invalidate the will or codicil.
What Happens If There Is No Will?
The court appoints an administrator, usually a close relative, who distributes the property of the deceased according to New York state law, not necessarily according to the wishes of the decedent.
If the deceased leaves no relatives of the classes mentioned in the law, then the assets pass to the state of New York.
If any of the persons entitled to part of the estate are minors, difficulty and additional expense may result for them and their parents in the absence of a will.
What Does It Cost to Make a Will?
The cost of a will often depends upon how much time the lawyer must spend in helping you plan the disposition of your estate and in preparing the will. Considering the value of your estate, the cost of a will which properly disposes of your estate is very small. Further, a properly-drawn will can save your family taxes and other expenses after your death.
Does A Will Increase Expenses After Death?
No. A will frequently reduces expenses. And whether you die with or without a will, the estate is under the supervision of the Surrogate's Court. Therefore, it is best that a will be drafted to conform to your wishes.
What Effect Does a Will Have on Estate and Income Taxes?
A will can be drawn to take advantage of estate and income tax benefits which may not be available if you die without a will. Recent changes in tax law may necessitate a revision of a will.
Is A Form Will Satisfactory?
A form will can be legal, but use of a form by non-lawyers is very risky. Wills are not "one size fits all." A will should be drafted to address the specific needs to the individual, not to fit some form.
Is A Living Trust Better Than A Will?
Wills and living trusts generally accomplish the same thing - disposition of your assets after your death. There is nothing which a living trust can do with respect to disposition of your estrate that cannot be done with a will. Living trusts can be useful in certain situations, and it is best to consult with a knowledgeable lawyer to determine which is best for you.
Who Should Draft A Will?
The drafting of a will involves knowledge of practically every field of law and the making of decisions requiring experienced professional judgment. Only a practicing lawyer can avoid the many pitfalls and can advise you of the best course for your personal situation.
Remember!
1. If you do not have a valid will at the time of death, your property may not be distributed in accordance with your wishes.
2. Every adult should have a properly prepared will in a safe place. Notify the executor of its location. The will may be filed for safekeeping in the local Surrogate's Court or with your attorney.
3. A will does not increase expenses and frequently reduces them.
4. A will can mimimize estate and income taxes.
5. Homemade wills are extremely dangerous and are frequently the subject of lawsuits.
6. Life insurance and joint property are not substitutes for a will.
7. Do NOT execute, alter, amend, or change a will, except under the direction of a lawyer. If you do not have an attorney, contact the
Lawyer Referral and Information Service of the Bar Association of Erie County at (716) 852-3100.
NOTE: This material, based on New York Law, is issued to inform, not advise. No person should ever apply or interpret any law without the aid of an attorney who knows the facts, because the facts may change the application of the law.