Top 5 Tips when Drafting Your Will
Choose the Right Fiduciary
Before you meet with your trusts and estates attorney to draft your will, first take some time to think about the individual(s) that you would trust to handle your affairs after you die. Consider naming someone who is honest, responsible, good with his or her finances, and who you believe will follow your and the Court’s directions.
The wrong fiduciary might steal from your estate, neglect to pay estate taxes, or fail to properly distribute your property to your beneficiaries. Similarly, the wrong fiduciary might take advantage of you while you are alive in order to influence you to name him as your primary beneficiary and as your executor.
To prevent this kind of abuse, you should visit your attorney on your own. If you need help traveling to your attorney’s office, request help from a disinterested person – someone you do not intend to include in your will as beneficiary or executor. Lastly, if the only person available to bring you to your appointments is someone you are naming as executor (or beneficiary) in your Will, make sure that he is not present in the room with you and your attorney during your meetings and your will execution. Ask him to wait at a nearby Starbucks or to at least in the law firm’s waiting room.
I have represented many individuals who have contested wills or commenced proceedings to retrieve funds that were stolen from estates. The executor in these matters is often someone who forged the will, unduly influenced the testator to include him in the will and exclude other individuals from the will, or who was not involved in the Will’s execution but stole estate assets after the testator died. Unfortunately, there is a lot of abuse but if you are careful in choosing your fiduciary, you may be able to protect yourself and your estate.
Don’t Forget to Nominate a Successor Executor
Your successor executor will act in the event that your executor does not want to act, predeceases you, is not qualified for appointment, or becomes unable to act after being appointed executor by the court. If something happens to the original executor and you name a successor, the process for getting the successor appointed is easier than the process for appointing a successor fiduciary if one is not named in the Will. If you fail to name a successor executor and there is more than one person who qualifies as successor fiduciary of your estate, those individuals might engage in a lengthy, stressful, and costly battle over who should be appointed.
Don’t forget to list the Contingent Beneficiaries
It is also crucial to name contingent beneficiaries in your Will. If you do not, your property might go to someone other than its intended beneficiary. For example, if you name your cousin as the beneficiary of your gold bracelet, do not name a contingent beneficiary for your gold bracelet, and your cousin predeceases you, your gold bracelet might end up in someone else’s hands. Generally, all property that is not specifically disposed of in a will gets distributed with the residuary estate, which is all of your property that you did not specifically give to someone elsewhere in your will. Here, unless otherwise stated, the gold bracelet will be included in the residuary estate and distributed in accordance with the residuary estate provisions of your will. If you want that gold bracelet to go to a specific individual in the event that your cousin predeceases you, you should clearly name a contingent beneficiary.
In New York, you get the advantage of the anti-lapse statute for your siblings and your issue. This means that if you specifically dispose of certain property to a sibling or descendant (descendants are also known as “issue” in New York) and that sibling or descendant predeceases you, the bequest does not lapse. Instead that property goes to the descendant of that sibling or descendant. However, if you wish for a contingent beneficiary other than the descendants of your siblings or of your descendants, then you should name contingent beneficiaries.
Remember to Update Your Will
You should contact your trusts and estates attorney once every few years to discuss whether your Will should be updated. Your attorney can update your will either by drafting a new will, which will revoke your previous will, or by creating a codicil, which does not revoke your will, but rather will be considered as part of your will and can be used to add, modify, or remove provisions from your will. You should update your will when there is a change in the trusts and estates law or in the tax law and when you experience a major life event.
Tax laws and trusts and estates laws are constantly changing. Even if you are unsure of whether the law has changed or how or if such changes will affect you, you should contact your attorney at least every few years to learn about the changes and ask whether your will should be updated.
Similarly, you should update your will if you experience a major life event, such as getting married or having children. By updating your will, you can make sure to provide for your spouse and children. Similarly, if you recently had a child, your attorney can update your will to include a nominated guardian to take care of your child in the event that you and your child’s other parent die or become incapacitated while your child is still a minor.
Remember to include a Residuary Clause
In New York, if you die without a will, New York’s intestacy statutes govern who is entitled to receive your property and how much each person will get. Generally, in the substantive provisions of the will, the testator starts by specifically devising real and/or personal property to named individuals. The testator then provides a residuary clause, which catches any property that was not specifically bequeathed in the will and distributes such property to one or more residuary beneficiaries.
However, if the testator does not include a residuary clause in her will, any property that is not specifically disposed of in the will will be governed by the intestacy statutes rather than being distributed in accordance with your wishes.
Please feel free to contact me for all of your tax planning, estate planning, and estate administration needs.
Additional resources provided by the author
For more information, please contact probate and estate planning attorney Regina Kiperman:
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New York, NY 10038
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