How to Write A Will
(I am a NYC Estate Planning lawyer. At home, however, I also take on various roles such as a doctor, nurse, psychologist, plumber, chef, and driver. I rely on Google for guidance in these roles. I routinely find helpful articles.)
Below are some tips on how to write a legal Will. (There are times when you may just need a codicil to a Will and not a Will. This will be the topic of another post).
Create A List of Assets and Figure Out How They are Held
Some guides on writing a will start off by asking if you want to use a lawyer or DIY software. I believe it is important, but the first step in writing a Will isn’t deciding between a lawyer or DIY software. Rather, the first step is to make a list of the assets that you intend to dispose of by Will and figure out how those assets are held.
Many people name beneficiaries for their assets, share assets with others, designate pay on death, or hold assets in living trust. Indeed, many people have multiple names on bank accounts. Many people hold accounts with spouse and children.
All assets with beneficiary designations, jointly held, pod, or “i/t/f” do NOT pass by Will. These assets all pass by operation of law. If you have beneficiaries or joint assets, the Will doesn’t matter for what happens to those assets.
If you hold an account jointly with your child, that account does not pass to your surviving spouse. Rather, it passes to your child.
In addition, one of the most crucial elements of Estates Powers and Trusts Law Section 3-2.1 is that the testator (or Will writer) knew what assets they had and what assets they were giving away when they wrote the Will. (The testator also needs to be of sound mind. You must also sign and date the Will. There should also be a self proving affidavit.
First, make a list of your belongings and determine if they are passed on automatically or not. This is the initial step in our guide on how to write a Will in NY.
Be Specific and Realistic About Who Gets What
The next step in my How to Write A Will Guide is to figure out who gets what. Many times, I meet with clients who have multiple children and just want to leave everything to the children equally. That is excellent in theory but, sometimes, not realistic in practice.
Some common examples of unrealistic requests by parents who love their children equally and dearly are:
- Leave the house to the children equally when one children lives in the house and the other does not.
- Leave the house to the children without instructions on whether the house should be sold promptly after the testator’s death.
- Leave the business to the kids without an operating agreement or clear instructions on how the business should be managed.
- Leaving everything to one child with the intention of having that child distribute everything to the other children
- Not leaving something to one child because that child has disabilities
Although we all love our children (mine are perfect angels until they fight and turn into heathens), let’s not give them more ammunition. Carefully consider what you want to do with your assets and how you want to dispose of them.
If your child lives with you, they will not automatically move out after you die. They will only move out if your Will instructs them to do so in order to sell the house. If you have a business, put provisions in place at the corporate level so that there can be seamless transition.
How to Write A Will – Choose the Right Executor
Not everybody can serve as an Executor. When choosing your executor, you should take into account some important considerations. In fact, this is so important that I wrote a separate blog post on this topic. Non-US citizens or green card holders cannot be executors in NY without being a resident.
I often receive calls from people who want to write wills naming their parents, siblings, friends, etc as guardians. The issue is that some people don’t live in the US, aren’t American citizens, and don’t have green cards. People think I’m crazy when I say those people can’t be a fiduciary under SCPA 707. If you don’t believe, me, here’s the link: SCPA 707(1)(c).
If you insist on wanting your non US citizen friend/family/colleague act as the fiduciary, then consider a Trust or other estate planning documents, instead of a Will. It’s more expensive but it will let you choose that foreign fiduciary. Alternatively, appoint a New York resident to serve with the non US citizen fiduciary.
Choose the person who you trust who will get the job done, who is not incompetent, not a felon, and a US Citizen or Green Card holder.
How to Write A Will – Choose Beneficiaries for Your Will
Make a list of the individuals you want to inherit and how much you want them to receive. Be mindful of individuals who are older than you and who may want government benefits. Consider a supplemental needs trust for the benefit of older individuals so that their benefits are not interrupted when they receive an inheritance.
If your beneficiaries are going to be minor children, then you may want testamentary trusts for the benefit of the children. First of all, children under the age of 18 cannot receive their inheritance outright.
Second, you may want to temper how much money they get. Remember what you wanted to buy when you were 18? That’s exactly what your kids will want to buy. If you don’t want them to buy that, then create a trust for them inside of your Will.
Don’t disinherit somebody because they are on benefits. We have special trusts available to meet their needs.
Figure out Whether you Will Need Any Other Documents
Believe it or not, I do not believe that the Will is the most important document. I believe that the most important documents that a person can have are Advance Directives Advance Directives are a set of documents that you execute during your lifetime that set forth your wishes in the event of incapacity. These documents consist of Power of Attorney, Health Care Proxy; Living Will; HIPAA; Designation of Agent to Control Disposition of Remains; and, Nomination of Guardian for Adult Pursuant to Mental Hygiene Law Article 81.17.
I think Advance Directives are important because I want someone to make decisions and take care of me when I can’t. It’s important to have a plan for what happens to my belongings after I pass away. However, it’s even more beneficial to have legal documents that assist others in taking care of me while I’m still alive.
In addition, to Advance Directives, you may also want to explore whether Trusts are more appropriate. A Living Trust is helpful for avoiding probate, distributing assets easily if Cousins survive you, or if you have risky investments. Click here to read more about Advantages of Trusts.
Find an Estate Planning Attorney or DIY Software to Prepare the Will
In my blog post about how to write a Will, I suggest finding an attorney or DIY software program as the final step. There is no point in downloading the forms if you do not know what you are disposing of, who you are leaving it to, how you want to leave it to them, and who should be responsible for following your instructions at your death.
I am happy to help you figure out how to Write A Will. I also understand if you want to just read this guide in your quest to be a google estate planning lawyer. Once you have finished writing a Will, please review how to Execute A Will.
Good luck and Happy Writing!
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