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Introduction:
Most people erroneously believe that Wills are only for the rich. Accordingly, many Americans die without a Will. Under New York laws a Will is a written instrument made to take effect upon death, whereby a person disposes of property or directs how it should be disposed of, and is revocable during their lifetime. The person making the Will is called the Testator. The amount of property an individual has is irrelevant to whether or not an individual needs a will. The Will serves many essential functions not contingent on the wealth of the Testator.
Function:
In addition to designating the transfer of property and assets a Will may be used to designate guardianship of minor children. Making a Will is the simplest way to ensure that your children are provided for and that your property is distributed according to your wishes. Conversely, without a Will to indicate your wishes, the Courts can distribute your property pursuant to the Laws of Intestacy. Intestacy or Intestate is the legal term for your status if you die without a Will. Moreover, if you have no apparent heirs and die without a Will, your estate may be absorbed by the State. The Process: In order to draft a Will best suited to your situation, your attorney needs to have all relevant information. The domicile of the Testator at the time of death is an important fact. A Will must meet specific State standards to be valid and enforceable. Domicile determines which state laws, including issues of estate tax, will control. It is also important to know the full extent of a Testators real and personal property, the identity of their family members and the identity of any potential beneficiaries.
Surviving Spouse:
Under New York Law, a parent can disinherit their children; however, a surviving spouse can not be disinherited. Any attempt to disinherit a surviving spouse will fail if challenged by the surviving spouse. New York and many states provide a surviving spouse with a right of election. This is a right to elect not to accept the terms of the Will. In New York, upon the death of a spouse, the surviving spouse can choose the greater of $ 50,000 or one third of the decedent spouses net estate. Whether a spouse dies and seeks to completely disinherit the surviving spouse or makes a Will prior to marriage not mentioning the surviving spouse; the surviving spouse has a right of election. In addition, a surviving spouse is entitled to an exempt personal property set aside. These personal items include a car, furniture and cash up to $ 15,000; with a total value not exceeding $ 56,000. Moreover, these items come off the top over and above property passing to the spouse by Will, intestate share or elective share.
Executor:
An Executor is appointed by the Testator in the Will. The Executors job is to carry out the Testators wishes. His duties include (i) collection of all estate assets, (ii) determining any claims against the estate, (iii) filing any required tax and (iv) distributing the assets to beneficiaries listed in the Will. Due to the importance of these functions, a qualified individual should be elected Executor. Additionally, an alternative Executor should be named in the event that the named Executor is unable or unwilling to act. It is important to note that not all assets are subject to the provisions of a Will. A Will controls only the property in your individual name. Property held jointly with a right of survivorship passes, by operation of law to the surviving joint owner (ex: joint bank accounts or joint tenancy). Similarly, retirement benefits, life insurance proceeds, trust accounts and defined beneficiary items generally name specific beneficiaries and are distributed by operation of law.
Guardian:
The appointment of a guardian becomes necessary if a Testator has minor children. A testamentary Guardian is specifically charged with the duty of taking care of the Testators minor children. Accordingly, a Guardian should be chosen with due diligence; they should posses the ethical and moral standards the Testator would want imparted to his or her children. The appointed Guardian will only play a role where Testator and spouse die in a common disaster or the spouse has predeceased the Testator.
Funeral Arrangements:
Notwithstanding the need to designate your wishes in a Will, there are certain instructions which may be inappropriate to place in a Will; namely, burial instructions. Generally, the surviving spouse or next to kin has the right to make funeral arrangements. Funeral arrangement are usually made immediately after the Testators death and well before the Will is examined. It is therefore advisable to communicate burial wishes directly to the spouse and/or next of kin. Many people use a Letter of Instruction for this purpose and have their attorney draft it along with their Will.
Conclusion:
Under New York Law, there is no prescribed format for drafting a Will. However, New York does prescribe strict testamentary formalities for the execution and attestation of a Will. A properly drafter Will can (i) simplify the administration of the estate, (ii) facilitate the smooth transfer of property to designated individuals, (iii) provide for the care of minor children and (iv) give effect to the decedents wishes. A Will is an important legal document. It is always advisable to use a qualified Attorney for the purpose of drafting your Will. Moreover, should the need arise, your Will can be updated or modified by your Attorney by way of an amendment called a Codicil or redrafting the entire document. The advantage of having a Will include impartially setting disputes by the Surrogates Court and shortening the time creditors have to make claims against the estate. A Will is relatively inexpensive to prepare and can be a critical part of any financial plan. It is advisable to have yours prepared as soon as possible.
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