A last will and testament, simply called a will, allows the testator to express their wishes concerning how they want their assets distributed when they pass away. The person who addresses his or her assets in a will is called the testator. The testator must name their beneficiary or beneficiaries and what asset(s) should go to them.
When writing your will in New York , it is important you use the right terms to avoid ambiguity or discrepancy. That is because issues may later arise because of that, which may result in m bitter conflicts within your family because you weren’t clear enough in stating who receives what.
It is therefore beneficial to seek help from an estate planning attorney NYC to help you draft your will, ensuring it says exactly what you mean.
Requirements for writing a will in NY Buffalo
- The will must be in writing.
- You (the testator) must be 18 years or above.
- You must be of a sound mind at the time of writing the will.
- There must be at least two witnesses concurrently present who must each sign and attest to the presence of each other.
- The will must also contain the written signature of the testator.
Wills only take effect after the testator dies
Notably, every will must pass through the court before your wishes written therein can be carried out. And this cannot happen until death comes. Ultimately, your last will and testament is dormant until you pass away.
Naming an executor
When writing your will in NY, it is important you name a person who will see to it that your wishes are carried out. This person is known as the executor.
When the testator passes away, the executor will take the original last will and file a petition to the probate court so that they can be authorized to administer the decedent’s estate and disburse their wealth to the beneficiaries according to the will.
Probate
Probate is the process of validating the will by the probate court. In New York, it is called the Surrogate’s court. And probate must take place in the Surrogate’s Court in the same county where the deceased lived and/or owned property at the time of their death.
If the court sees the will to violate any requirement, it may be discarded and the wishes of the testator will not be honored. But if the will is found to be valid, the court authorizes the executor to administer the estate, pay off estate taxes, funeral expenses, and debts of the deceased before distributing what’s left of the estate to the beneficiaries.
What assets can go into a will in New York?
It is important to note that not all assets can be addressed with a will. Only assets that are in your name only without any beneficiary designation can be distributed according to your will.
The following assets should be left outside the will:
- Life insurance – You most likely already named a beneficiary in your life insurance policy, so it’s useless naming another beneficiary of this same asset in your will. It may ultimately lead to discrepancy
- Retirement accounts, such as 401(k) – Also has a designated beneficiary
- Transfer-on-death bank accounts – has a designated beneficiary who the funds must go directly to when the owner dies
- Assets in a trust – assets kept in a trust will pass directly to the beneficiaries regardless of what the will says
- Real property held by joint tenancy with rights of survivorship – The property will go directly to your joint owner when you pass away regardless of what the will says.
A Last will and testament can be used to appoint guardians for minors in NY Buffalo
If you have minors, it’s a wise idea to name a guardian for them in your will. That is because children below 18 cannot inherit property under New York law. Hence, the guardian will look after them with the assets you leave until they come of age to inherit what’s left of it.
Notarizing a will in New York
Notarizing a will is not compulsory in New York. However, a notarized will is “self-proven”, that is, the court will see it as valid once it’s presented in court. So they wouldn’t have to call your witnesses to attest to the validity of the will during probate.
Intestacy
If you die without a valid will or trust in New York, you would be said to have died intestate, and your estate will be distributed according to New York intestate laws rather than your wishes.
Get help from an estate planning attorney NY Buffalo
To ensure you make no costly mistakes in your will, get help from an experienced estate planning attorney near you today.