Last Will and Testament
Last Will is an estate plan that holds detailed list of instructions as to how your property should be shared after you die.
In order to ensure your surviving family, relative, special friend or loved one, or even a pet is well taken care of after your death, you have to specify clearly in your will what portion of your asset you want distributed to that person. Also, you would have to appoint an executor who will take responsibility of your will when you die.
If you have minor children, the last will usually contain provision for appointing a guardian for your children.
A last will can be used to:
- Pass your property over to your loved ones at your death;
- Name a guardian for your minor children at your death;
- Appoint a trusted party who would look after whatever property you leave to your minors until they come of legal age to handle such property themselves;
- Name an executor who would ensure the terms of your will are duly carried out to the letter.
The difference between a last will and a living will is that while a living will takes effect during the lifetime of the testator in cases of incapacitation, a last will takes effect after the death of the testator.
A will attorney would protect your interest even in probate
The will attorney would settle any disputes that arises between the personal representative and the estate beneficiary or between the beneficiaries of the estate who feel they have been cheated. Unfortunately, in certain situations, when a decedent will is read, tension and dispute may arise between beneficiaries of the estate. A will attorney would be needed to mitigate these situations and preserve family harmony. Also, a probate attorney may be called upon when someone contest the authenticity of the Will and feels it should be deemed invalid.
Since probate cases are settled in court, you would need a will lawyer. In cases where the estate document or Will is written unclearly and the beneficiaries need the court to interpret them, a probate attorney would be called on to present the case. Similarly, if someone challenges the Will which perhaps may lead to litigation, the probate attorney would represent the best interest and wishes of the decedent.
How a Will is implemented
For a will to be implemented, it goes through probate in a Surrogate’s Court in New York City where you lived and/or owned assets, and this brings publicity upon your will. Many people do not like this publicity, which is one reason why many create Trusts. Also, probate and court fees as well as estate taxes must be paid during probate, and this is one of the major downsides to a will. Worst case scenario is if your will doesn’t meet all requirements. Then, your will be discarded and your estate distributed according to NY intestate laws.
What happens to your estate when you died without a valid Will?
When one dies without a will or the will is declared invalid, the estate left by the deceased becomes “intestate”, that is, will be administered in accordance with the intestacy laws effective in New York. Here, the court would have to appoint an executor/administrator who will carry out the distribution of property as well as other fiduciary duties.
In the absence of a valid last will in New York, the intestacy laws states that all your estate would go to your spouse if you had no children. If you had only children, your estate would go to the children. If you’re survived by a spouse as well as children, then your spouse receives half of your property, while the rest falls to your children. If you’re survived by neither spouse nor children, then your estate goes to your surviving next-of-kin as judged by the laws in New York.
You need a Will attorney
You need the guide of a will attorney to write and document your will. The Will is an important estate plan document and it requires that details made in it are appropriate and valid to the New York state rules on estate plans. Contact a Will attorney today.