This “Last Will and Testament” guide will help an individual in New York City understand what a Last Will and Testament (“Will”) is, the benefits of having Wills, the alternatives to Will writing, whether you need an attorney to draft your Will, and how to prepare for a Will execution.
What is a “Last Will and Testament”?
A Last Will and Testament (“Will”) is a legal document that an individual, otherwise known as the testator, prepares in order to give instructions on how his estate should be administered after his death. Through his “Last Will and Testament”, the testator names an executor to manage his estate and names beneficiaries who will benefit under the will. The testator can also create testamentary trusts for the benefit of certain beneficiaries (which only become effective upon her death) and name guardians and successor guardians for any minor children that the individual has at the time of his death.
Who needs a “Last Will and Testament”?
In general, anyone who owns property should have a Last Will and Testament. Contrary to popular belief, you do not need to have millions of dollars to write a Will. If you have items that you wish to pass to certain individuals, then you should consider writing a Will.
What are the benefits of having a “Last Will and Testament”?
A Last Will and Testament gives you the power to name beneficiaries and one or more executors and successor executors. Without a will, state laws govern and determine who will receive and who will manage your property.
Section 4-1.1 of the Estates, Powers and Trusts Law governs how a person’s property is to be distributed upon her death should she die without a will. In New York, if an individual dies without a will (otherwise known as dying “intestate”) survived by her spouse and no children, the surviving spouse is entitled to receive the entirety of the deceased person’s (otherwise known as the “decedent”) estate. This is true even if more remote relatives are still alive at the time of the decedent’s death. (The surviving spouse has priority over those more remote relatives to receive the decedent’s assets.) If that New York decedent dies intestate with a spouse and children, the surviving spouse is entitled to $50,000 plus half of the remaining estate, while the children are entitled to the remaining half of the estate. If the decedent dies intestate survived by parents and no spouse or children, the parents are entitled to equal shares of the entire estate. This hierarchy continues on, and it ends with the decedent’s first cousins, once removed.
If you execute a Will, however, you can specifically name which beneficiaries will receive which assets. You can name relatives, friends, or even charities as beneficiaries and decide which and how much of your assets will be distributed to those beneficiaries.
Similarly, without a will, the law governs who can administer a decedent’s estate. Section 1001 of the Surrogate’s Court Procedure Act provides a hierarchy of who may petition the court for authority to act as the estate administrator. For example, your spouse is given first priority, and your children are listed next. Therefore, if you are concerned that certain relatives may mismanage your estate, you should create a will and name a trusted individual (or multiple trusted individuals) to act as executor of your estate.
What are Some Alternatives to a “Last Will and Testament”?
One of the main disadvantages to writing a Will is that once the testator dies and the will is submitted to the court for probate, the Will becomes public record. Anyone can read the testator’s will, usually by visiting the Surrogate’s Court in which it was filed and viewing the Will in the Court’s computer database. Furthermore, all other documents filed with the court in connection with the testator’s estate will be public record and can, therefore, make even more information publicly accessible. Many individuals with large estates, contentious relatives, or valuable property may wish to keep their assets and circumstances private. While this may not be a concern for everyone, revocable trusts are a viable alternative for those who wish to maintain privacy.
A trust is a legal document that creates a relationship between the creator of the trust (hereinafter referred to as the “donor”) and a third party, known as the trustee, in order to give the trustee the powers to hold, invest, and distribute his property to the trust beneficiaries. Revocable trusts become effective during the lifetime of the donor, and the donor can revoke, revise, or amend the trust while she is alive. Upon the donor’s death, the revocable trust becomes irrevocable.
The revocable trust and the donor’s assets need not be made public record during the donor’s life and generally remain confidential upon the grantor’s death. However, a pour-over will is often created in addition to the revocable trust. The purpose of the pour-over will is to catch any property that has not been re-titled in the name of the trust and pour it over into the trust. If all of the donor’s property is properly re-titled in the name of the trust, the pour-over will will not need to be probated upon the death of the donor. However, if the donor forgets to transfer any of his property to the trust, the pour-over will needs to be probated in order for the executor of the pour-over will to have the authority to transfer any probate property into the trust. The pour-over will will become public record, and the court may ask for a copy of the revocable trust before the pour-over will can be admitted to probate.
Two other alternatives to drafting a will are naming beneficiaries of certain assets, like your checking and savings accounts and your retirement accounts, and owning your property jointly with other individuals as joint tenants with rights of survivorship. In New York, ownership of property that is held between two or more owners with rights of survivorship transfers to the surviving owner after all other owners have died. While these alternatives allow you to avoid probate, they do not afford you the advantages of creating a will.
Do I need an Attorney to draft a Will?
Yes. While there are programs and forms available to help you draft your own will, it is better to retain an attorney to draft your will. Experienced trusts and estates attorneys know how to minimize your taxes and protect your assets. Trusts and estates attorneys can also create a will that is specific to your needs, circumstances, and familial structure, whereas the forms that are available are basic cookie-cutter forms that cannot accommodate the different needs of different individuals.
What do Attorneys Generally Charge to Prepare a “Last Will and Testament”?
An attorney’s fees vary depending on various factors, including the attorney’s experience, the location and size of the attorney’s firm, and the size and level of complexity of the testator’s estate. Generally, attorneys charge a flat fee for preparing a will. Many New York attorneys also prepare additional documents, such as advance directives and other types of directives at no extra cost. These additional documents might include a power of attorney, health care proxy, living will, nomination of guardian form, designation of guardian form, HIPAA authorization form, and disposition of remains form. Boutique firms and many mid-sized firms located in New York tend to charge between $1,200 and $3,500 for the will and directives. Larger firms often charge more than that.
Some firms do charge hourly for wills and can charge between $375 per hour to $1,000 per hour for the time the attorney spends drafting your will, sending you drafts for your review, revising your will, communicating with you about your will, executing your will, and performing any other services in connection with the drafting of your will.
Make sure to speak with your attorney about her fees before you retain her. In addition, you should carefully read your retainer agreement before signing it, as it will include important information about your attorney’s fees.
How to Prepare Before Meeting With your Attorney
- Think about who you wish to name as your executor. This is important, as your executor will have access to your assets after your death and will have to responsibly manage your estate. Your executor must pay your taxes and bills and must distribute your assets in accordance with your will.
- Create a list of your assets, their locations, any identifying information, and their approximate values. Your attorney needs this information to decide what kind of provisions you need in your will.
- Create a list of your relatives spanning from your spouse and children to your cousins, once removed. Provide their full names, addresses, and phone numbers. Make sure to state how each relative is related to you. If any of these family members are deceased, provide dates of death and any information you may have regarding the fiduciaries of the deceased relatives’ estates. If you have a blended family (for example, you and your spouse have children from previous marriages), provide relevant details to your attorney, such as whether you have been previously married and which of your children are the children of your current spouse.
- Gather important documents for your meeting. These include previously drafted wills, codicils, and advance directives, any pre-nuptial or post-nuptial agreements between you and your spouse, and any documents that show title to your assets.
- Consider how you would like your assets distributed. Are there specific gifts you would like to make to certain individuals?
What should I Expect During the Execution of the Will?
Each state has rules for the proper execution of a will. In New York, a will is properly executed if it was signed by the testator at the end of the document in the presence of two witnesses (or signed and then acknowledged by two witnesses) and then signed by the two witnesses in the presence of the testator within 30 days of each other.
Generally, on the day the will is to be executed, you will meet with your attorney and review your will to make sure that you understand the will and that it accurately expresses your wishes. If you are satisfied with your will, your attorney will print out the final version of your will and ask your two witnesses to join you for the will signing. In front of the witnesses, your attorney will ask you various questions in order to show your witnesses that you possess the required capacity for drafting your will, that you are satisfied with the will as it is, that you are signing the will voluntarily, and that you want your witnesses to sign your will as witnesses. You will then initial every page of your will except for the signature pages and then sign on the signature line, which is located at the end of the will. Then the witnesses will sign below your signature and will sign a witness affidavit, in which they attest to a variety of facts, including that you appear to have capacity, that they witnessed your signing of the will, that you requested that they witness the signing of the will, and that you can read and write in the English language.
What Should I do With my Will Once I Execute it?
Once you execute your will with your attorney, it is recommended that you allow your attorney to keep the original version of your will and ask your attorney for a copy (or two) of your will. Allowing your attorney to keep the original is crucial for many reasons. First, attorneys generally keep their clients’ wills in fire-proof safes. Second, if a testator takes possession of the original and then misfiles it or accidentally throws it out, it is more difficult for the proponent of the will to probate the will and may have to attempt to probate a copy of the will. Where the original will is lost, there is a presumption that the testator revoked the will. An opponent of the will can use this presumption as an argument for not probating a copy of the will, and the proponent of the will will then bear the burden of showing that the will was not revoked and that the copy of the will is an accurate copy of the original.
Lastly, it is recommended that if you decide to keep your will, you do not store it in a safe deposit box, as it would require someone to bring a proceeding in the Surrogate’s Court of the county in which the will will be submitted for probate to open the safe deposit box, which can cause an unreasonable delay in the probate process. If you absolutely feel you must keep the original will, keep it in a fire-proof safe that is easily accessible and tell your attorney (or a trusted loved one) the location, so they can make a note of it in your file.
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