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Last Will and Testament

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Key Takeaways

  • A Last Will and Testament is a legally binding document that dictates how your assets will be distributed upon your passing. You can choose who will inherit tangible personal property, such as books, clothes, and furniture, as well as your residuary estate, such as cash, stocks, and real estate. You must also choose an executor to handle your estate after your passing, and other parties. A Will must meet strict legal requirements to be validated. Ask our lawyers about how to properly execute a Will in NYC.
  • A properly executed Will can help reduce or eliminate estate tax, address guardianship for minor children, protect beneficiaries from creditors and divorce, and make probate easier. Learn how to accomplish all this from our NYC Wills attorneys.
  • Anyone who has the legal basis can contest a Will, as long as they meet the requirements established under state law. One of the Wills lawyers at our NYC office can help determine whether you qualify to file a “Will contest.”
  • A lot goes into creating a comprehensive Will that accounts for all your needs, even the unforeseen ones. Having a lawyer help you create a Will can make a substantial difference in your ability to execute your wishes the way you want.

Wills Lawyers in New York City and Suffolk County

Only a trust and estates attorney has the knowledge base to draft a tailored, comprehensive Will. Each client’s situation is different and requires a unique estate plan that takes into consideration the difficult decisions surrounding death, inheritance and aging. Our attorneys and staff approach these sensitive subjects with compassion and practicality

What Is a Last Will and Testament?

A Last Will and Testament is a legal document that sets forth how your assets are to be distributed at your death. In a Will, you can choose who will be the beneficiaries of your tangible personal property (books, clothes, furniture, art) and your residuary estate – all your remaining assets such as cash, stocks, and real estate. You name an executor to administer your estate upon your death – bring the petition in the surrogate’s court to validate the Will and follow your direction on distributing your assets.

In order for a Will to be validated, it must have been properly executed. In New York, under EPTL 3-1.1, a Will can be executed by anyone at least 18 years old and of “sound mind and memory.” The Will must be in writing, signed by the testator and witnessed by two people who are also at least 18 years old and who are not beneficiaries under the Will.

The testator must have capacity to make a Will, but this does not mean that people suffering from mental or memory defects cannot make a Will. To be of sound mind and memory, the testator must know the extent of their property and recognize who would be the “natural objects” of their bounty.

Without a Will, your assets are strictly distributed according to your state’s intestacy statute – no exceptions. Without a Will your beneficiaries may not be who you expect or want to inherit your assets! For example, many people believe that their spouse automatically inherits everything. However, in the State of New York, if the decedent had children, the spouse inherits the first $50,000 of assets held in the decedent’s sole name and half of remaining assets. The remaining half is split between any living children and children of deceased children. This poses problems – especially when there is a closely held business, minor children and children from a previous marriage.

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What can it be used for?

A properly drafted Will not only provides for beneficiaries of your choosing – it can reduce or avoid estate tax, designate a guardian for minor children, create trusts for beneficiaries that protect them from creditors and divorce, name an executor to administer your estate, and make probate easier by dispensing with the need for a bond.

Can it be contested?

Under New York law, a Will can always be challenged by someone who has the legal basis to do so, in what is called a “will contest.” First, anyone contesting a Will must have standing. This means that anyone who would inherit if there had been no will, would have received less under the Will than if there were no Will, or would have inherited more under a previous Will. Second, a Will can only be contested on the following grounds: Will was not executed properly or was subsequently revoked; lack of capacity or a mistake when the Will was made; or the Will is the result of fraud, undue influence, duress, or an insane delusion.

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Drafting, Preparation and Consulting

The last will and testament is the end product of in-depth discussions surrounding family dynamics, aging, inheritance, taxes, death and incapacity. Drafting a Will properly involves analyzing what assets will pass through probate as well as non-probate assets which will pass outside of the Will. Probate assets are those held in a client’s sole name, usually bank accounts and single member LLCs. Non-probate assets are those which pass outside of the Will automatically, such as retirement accounts and life insurance. Both types of assets must be considered to construct a comprehensive, clear picture of the estate. Some types of assets may be better suited for certain beneficiaries because of disabilities, personality, needs, and tax consequences. Moreover, failing to consider how each asset passes at death could mean unintended consequences, unfairness and expensive court battles. Having legal counsel to guide you through the Will drafting process is crucial.