How to Write Your Will
Although I am a NYC Estate Planning lawyer, I often play google doctor, google nurse, google psychologist, google plumber, google chef, and google driver. I often find relevant articles and thought I would take the time to help all you google will writers out there by providing an informative guide on “How to Write Your Will”
Create A List of Assets and Figure Out How They are Held
Many “How to Write Your Will” Guides start off by asking you to figure out whether you want to use an estate planning attorney or to select some form of do-it-yourself software. While I think that is an important part of the process, in my opinion, 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 have beneficiary designations on their assets, hold assets jointly, have pay on death designations, or hold assets “in trust for.” 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. Indeed, if you have beneficiaries on your assets, or hold assets jointly, then the Will is irrelevant to the disposition of those assets.
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 they were disposing of when they wrote the Will.
Therefore, the first step of my How to Write your Will guide is to make a list of your assets and figure out whether those assets are passing by operation of law or not.
Be Specific and Realistic About Who Gets What
The next step in my How to Write your 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.
- Leaving the house to the children without instructions on whether the house should be sold promptly after the testator’s death.
- Leaving 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. It is important to practically think through what you want to happen to those assets and how you want those assets disposed of. If one of the children is living in the house with you, then you need to consider that the child is not going to move out following your death unless your Will specifically instructs them to move out so the house can be sold. If you have a business, put provisions in place at the corporate level so that there can be seamless transition.
How to Write Your Will – Choose the Right Executor
Not everybody can serve as an Executor. There are some important considerations that should be taken into account when choosing your executor. In fact, this is so important that I wrote a separate blog post on this topic. The short version is that a non US citizen or green card holder cannot serve as an executor without a NY resident.
I often receive calls from people who want to write wills naming their parents, siblings, friends, etc as guardians. The only problem is that those individuals sometimes do not live in America, are not US Citizens, and are not greencard holders. These individuals look at me like I have three heads when I tell them that those individuals are not going to be able to serve as a fiduciary pursuant to 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 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 greencard holder.
How to Write Your 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. You may want to create supplemental needs trust for the benefit of those older individuals so that their benefits are not interrupted when they receive your 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.
The reason I believe Advance Directives are important is because I want somebody who will make decisions and take care of me when I am incapacitated and therefore, most vulnerable. It’s great to have an instruction manual for disposing of my assets after my death, but it’s even better to have a set of documents in place to help others take care of me while I am still living.
In addition, to Advance Directives, you may also want to explore whether Trusts are more appropriate. Trust can be very useful if you want to avoid probate, streamline distribution of your assets, are survived by Cousins, or have volatile investments. Click here to read more about Advantages of Trusts.
Find an Estate Planning Attorney or DIY Software to Prepare the Will
Unlike every other blog post on How to Write your Will, I have made finding an attorney of DIY software program the last item on the to do list. 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 your Will. I also understand if you want to just read this guide in your quest to be a google estate planning lawyer.
Good luck and Happy Writing!
For more information, please contact Estate Litigation, Guardianship, Probate and Estate Planning attorney Regina Kiperman:
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New York, NY 10005
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