What is a Will?
A Last Will and Testament (“Will”) can be thought of as an instruction manual for disposing of your testamentary assets after you die. You can make specific bequests and/or general bequests.
The Will can be simple (for example: Mary gives all to her spouse, if he survives her, otherwise, her children, free and clear) or complex (for example: Mary gives all to her spouse, in a form of credit shelter trust, if he survives, but if he does not then, to her children in separate trusts until the children reach a certain age). Unlike a Trust, a Will is not a contract.
Do I need a Will?
If you are not sure whether you need a Will, click here for a list of common reasons to have a Will.
What are Testamentary Assets?
A testamentary asset is an asset that can be disposed of by Will. An asset that can be disposed of by will is one which either:
- Does not have a beneficiary designation; or
- Is held either only in your name, or as a tenancy in common.
How do I execute a Will?
The Will can be signed just about anywhere (home, office, bedside, or even in a tent). In New York, in order to be properly executed, the Will must be signed in accordance with EPTL 3-1.1. This statute essentially requires that the Will be declared a Will and signed in front of two attesting witnesses, who themselves, should (for simplicity’s sake), sign a document called a “Self-Proving Affidavit.” Click here for Instructions for Executing a Will in New York.
What do I do with the Will after I have signed it?
After you sign the Will, you can either take the Will with you, or leave with a third party (including your attorney). If you take the Will with you and the Will cannot be found after your death after a diligent search, then it is presumed that you revoked the Will. It becomes much more difficult to probate a copy of your lost Will under those circumstances.
If you leave the Will with a third party, then the Will is not automatically presumed to be lost if it cannot be found after your death. In those instances, the Court may accept an attorney affirmation or an affidavit from the third party detailing the reasons for the loss and the chain of custody. If a copy of your Will is available, then it may be easier to probate a copy of that lost Will.
Regardless of whether you choose to keep the Will, or give it to a third party for safekeeping, please do not leaving your Will in a personal Safe Deposit Box because then your executor will need to commence a proceeding to open the Safe Deposit Box.
What if I want to Change my Will?
You can change the terms of your Will at any time, provided that you continue to have capacity to do so. There are two ways to make changes to your Will. The first is to execute a Codicil. A Codicil, as defined in EPTL §1-2.1, is essentially a way to supplement your existing Will, either by adding to your Will, removing from your Will, or altering the provisions in whole, or in part by republication, but not totally revoking the current Will. The second way to change some of the terms of your Will is just be executing a new Will. If you execute a new Will, make sure you properly revoke the prior Will. (If you do not properly revoke your prior Will, the person who has been adversely affected by the new Will may be able to compel the production of the prior Will, then acquire standing to seek pre-objection discovery, and even ultimately be able to file objections to your new Will, thereby impeding its’ acceptance to Probate).
What if I want to Revoke my Will?
There are a couple of ways to revoke your Will. The rules are laid out in EPTL §3-4.1. You can revoke your Will by burning, tearing, cutting, cancelling, obliterating, or otherwise mutilating your Will. You can also ask another person to rip up the Will in front of two disinterested witnesses. The best way to revoke your Will is to rip the document up in front of two witnesses who can then sign an affidavit stating that they observed you rip up the instrument.
What are some alternatives to a Will?
If you don’t want to execute a Will but want to make sure that your assets pass in the manner that you want them to, then you can employ a number of alternatives, including (i) designating beneficiaries on your assets, (ii) giving your assets away to the people you want to give them to during your lifetime, and/or (iii) creating Trusts.