Frequently Asked Questions Regarding Wills

What is a Will?

A will is a basic document that upon your death sets out a scheme with regard to who will receive your property, who will be the guardian of your children and who will handle and control the management of your estate and the distribution of your assets to your beneficiaries.

What Happens If I Die Without a Will?

Individuals who die without a will are said to die “intestate”. This means the State of New York or the state that you reside in at the time of your death will decide how your assets are to be distributed. The State of New York has very specific rules concerning the intestate distribution of assets. The following is a brief explanation of the rules:

If you are married and you’re spouse survives you, he or she will receive all of your property if you die without having children.
If you die and you have children, your spouse will receive the first $50,000.00 of your assets plus one half of the remainder of your estate.
If you do not have a spouse that survives you, all of your assets of every type and nature will be distributed to your children evenly. If one of your children should predecease you or perish with you in a common disaster, that child’s children (your grandchildren) will receive his or her share of the estate.

What is Probate?

Probate refers to the legal process of having a court accept a will as being valid and appointing the executor named in the will. In the event an individual dies without a will, an administration proceeding is brought in the Surrogate’s Court to appoint an administrator of the estate.

Sometimes trusts are utilized to avoid the probate process. The type of trusts necessary to accomplish this depends on the individual’s circumstances.

Who Raises My Children When I Die?

You can name a guardian in a will to raise your children. Usually if one parent dies and the other parent is still alive, the living parent will raise the children. If both parents die simultaneously, the court first looks to see if there is a will that appoints a guardian in it. In the event you do not have a will naming an individual or individuals as guardians for your children, the Surrogates Court will appoint the guardians for your children. This is accomplished by family members, friends or other individuals bringing a proceeding in the Surrogate's Court to be appointed the guardian of your children. It is the responsibility of the guardians to see to the children’s health, education, general well being, manage the children’s property and deal with all other needs for the children.

Can a Will Be Modified or Revoked?

Yes!! The testator, the person who writes a will, can revoke, modify or change a will at any time he or she is compentent.

Can I Disinherit a Child?

A parent has an absolute right to disinherit his or her children. This can be done by specific causes in a will.

Can I Disinherit My Spouse?

In New York State, as well as most other states, unless the parties have a prenuptial agreement, postnuptial agreement, or signs a waiver of inheritance rights, your spouse has a right to a portion of your estate even if you try to disinherit him or her.

Where Do I Keep My Will?

In many situations the attorney who drafts the will maintains the will in a fire proof safe or file cabinet. If you have the original will you should keep it in a safe location. It also should be accessible at the time of your death. You should not put your will in a safety deposit box. You should advise your personal representative, (executor), as to the location of your will.

Do I Need a Lawyer to Draft my Will?

A will has to satisfy all of the specific statutes and requirements of New York to be valid. In theory, you do not need a lawyer to draft a will. However, in practice, unless you are aware of all the specific statutes and requirements concerning the drafting of a will and the execution formalities concerning a will, it is generally a terrible idea to try to draft your own will. It would be like handling an operation on your own body. You should retain an attorney that has extensive experience in handling wills, trusts and estate matters to draft your will.

Can I Download a Will from the Internet?

Yes. However, a downloaded will may not meet all of your needs. It may not be in conformity with New York State Law. It would have to be executed according to New York State execution formalities. In the writer’s experience downloaded wills simply create problems. If you make a mistake on the downloaded will it only comes to light after your death. This can result in your heirs spending thousands of dollars litigating over long periods to time to straighten out the problem created by an incorrect will.

Who Can I Name as my Executor?

You can name anyone you want as your executor. Executor’s duties involve probating the will, distributing the assets and handling estate related issues.

Contact a New York Wills & Trusts Attorney

To discuss your situation with a New York wills & trusts attorney, please contact The Law Offices of Elliot S. Schlissel for a free confidential consultation. We can be reached toll free at 1-800-344-6431, or in the five boroughs at 718-350-2802 and Nassau County at 516-561-6645. You also can fill out our intake form, and we will contact you.