Last will and testaments hold significant importance in New York. They serve as crucial legal documents that outline individuals’s final wishes and instructions regarding the distribution of assets and the care of dependents upon death. Without a valid will, the state’s intestacy laws may dictate asset distribution, which may not align with the deceased’s desires. A will enables individuals to appoint an executor to manage their estate and fulfill their wishes. If you or someone you know has not created a last will and testament or needs assistance updating your documents, you should consult an experienced New York estate planning attorney.
NY Estate Planning Laws that Apply to Last Will and Testaments
The New York Estates, Powers, and Trusts Law (EPTL) and the New York Surrogate’s Court Procedure Act (SCPA) govern New York last will and testament laws. These laws outline the legal requirements, procedures, and regulations for creating and executing a valid will in New York.
Essential Elements of a Valid Last Will and Testament in New York
Understanding the key elements is crucial for those seeking to draft a will in New York.
Testamentary Capacity
Under New York law, the testator must be of sound mind and at least 18 years old to create a valid will. The individual must possess the mental capacity to understand the nature and consequences of their actions when drafting the will.
Writing and Signature
A valid will in New York must be in writing. It must be signed at the end by the testator or by someone else in the testator’s presence and at their direction. The signature must be made with the intention of executing the will.
Witnesses
At least two individuals who are not beneficiaries or spouses of beneficiaries must witness the will. These witnesses must also sign the will in the presence of the testator and each other.
Holographic Wills Exception
While New York generally does not recognize holographic wills, there is an exception for armed service members during conflict.
These fundamental elements ensure the validity of a last will and testament in New York, helping to safeguard the testator’s final wishes. However, working with an experienced attorney for comprehensive guidance when creating or validating a will is essential.
What Should a Last Will and Testament Include?
When creating a last will and testament, addressing various issues and making specific provisions to ensure your wishes are followed is important.
Appointment of Executor
You should work with an attorney to designate an executor or personal representative to manage your estate, including paying debts and taxes and distributing assets.
Beneficiaries
You must identify who will inherit your assets and property. Specify the beneficiaries’s full names and their relationship to you.
Disposition of Assets
You should detail the distribution of your assets and property among beneficiaries, including any specific bequests or gifts.
Guardianship for Minor Children
If you have minor children, appoint a guardian who can take responsibility for their care and well-being if you and the other parent cannot do so.
Trusts
Consider establishing trusts to manage and protect assets for specific beneficiaries, such as minor children or individuals with special needs.
Funeral and Burial Instructions
Include your preferences for your funeral, burial, or cremation arrangements.
Digital Assets
You should specify how your digital assets (e.g., online accounts, social media) are to be managed or transferred after your death.
Charitable Contributions
If you wish to make charitable donations, outline the organizations and contributions of the specific amounts or assets.
Residue Clause
It is critical to address any assets or property not explicitly mentioned in the will, ensuring distribution according to your wishes.
No-Contest Clause
You should work with your attorney to consider adding a provision that discourages challenges to your will’s validity. Such clauses disincentivize beneficiaries from contesting the will.
Revocation of Prior Wills
You must explicitly revoke any previous wills or codicils to avoid confusion or disputes.
Pets
Make provisions for the care of your pets, including naming a caregiver and providing for their financial support.
Debts and Taxes
Specify how your outstanding debts, taxes, and estate expenses should be settled by identifying the sources of funds for these purposes.
Business Interests
If you own a business, detail whether your ownership interest should be sold, passed to specific individuals, or managed by someone else.
Healthcare Proxy and Living Will
While not typically part of a will, consider creating a separate healthcare proxy and living will to address medical decisions and end-of-life care.
It’s important to note that while creating a will in New York, consulting with an attorney specializing in estate planning can be beneficial. They can help ensure that your will complies with all legal requirements and is less likely to be contested.
If You Need Assistance with Your Last Will and Testament, We’re Here to Help
Estate planning is not normally a “DIY” endeavor, given the importance of the documents you’ll need to create and the many estate planning pitfalls that can be hard to avoid for the unfamiliar. If you’ve started an estate plan and run into some roadblocks, the attorneys at the Law Offices of Andrew M. Lamkin, P.C. are here to assist in whatever way we can. We understand the thought of paying a lawyer to create your entire estate plan can seem overwhelming, so we offer a range of customizable options to suit your needs. If you’re in the estate planning process, why not call the Law Offices of Andrew M. Lamkin, P.C., to see if we can help? You can reach us by phone or through our secure online contact form. We also offer free consultations to all prospective clients.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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