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.

Q: Can I change my will?
Yes. As long as you are alive and competent you can change your will, revoke your will, write a codicil (which is an amendment to a will), or tear your will up and write an entirely new will.

Q: Can I distribute my property any way I want to in my will?
Yes. You have full discretion to dispose of your property as you wish.

Q: Must wills be dealt with my courts?
The probating of a will involves bringing a court proceeding to have a court accept a will as valid. This is necessary to finalize the financial affairs of the individual who wrote the will. Courts supervise the probate process to make sure they are fair. Courts also authorize the executors of the will to have authority to transfer real estate and other assets of the decedent.

Q: Can a will be challenged?

A: Yes. Wills can be contested. Wills have to be submitted to a court in a probate proceeding. Persons who have a familial interest are given notice of the probate proceeding and they can appear in court and challenge a will. To challenge a will successfully, you must have specific grounds. Being unhappy with the terms of the will is not one of those grounds. Generally speaking, to successfully challenge a will, you must prove the person writing the will lacked testamentary capacity, was subject to fraud, duress, or undue influence, or that the will was not executed with the proper testamentary formalities.

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?

In the State of New York probate is the method by which a Will is shown to be valid in the Surrogate’s Court. The Surrogate’s Court must determine whether the Last Will and Testament of the decedent should be accepted. It is necessary during the probate process to acquire jurisdiction over all interested individuals who are then given an opportunity to challenge the Will before it is accepted by the Court to be probated. Wills will have an individual designated as executor. Upon the Will being probated, the court appoints the executor to carry out the terms and conditions of the will.

If an individual dies without a will, it is necessary to bring an administration proceeding. This proceeding is filed instead of a probate proceeding.

Sometimes trusts are utilized to avoid the probate process. The types of trusts and the material contained in these trusts depends on the circumstances of the individual making the trust.

Q: Can I change my Will or revoke it?
Yes. A person who drafts a Will can change it, revoke it, modify it at any time as long as he or she is still competent. The first manner in which a Will can be changed or modified is to have a codicil to a Will drafted. A codicil is simply a document that amends a Will. The codicil must be prepared and executed under the same requirements as the original Will. It is generally considered a better procedure to draft a new Will instead of drafting a codicil. Codicils can sometimes be used by individuals who are now disinherited or whose bequests are reduced as a basis for challenging the Will after the individual who had prepared the Will dies. A Will cannot be changed or revoked by crossing out terms and writing new terms on it. An individual should not make any marks, comments or corrections on a Will after it is executed.

To revoke a Will you can simply tear it up or destroy it.

Q: If I get divorced after I prepare my Will, will the Will be invalidated with regard to my spouse inheriting?
No. In New York Wills are not revoked or made invalid when an individual marries or gets divorced. In addition, the birth of a child not taken into consideration at the time the Will is prepared will also not invalidate or modify the Will. The best way to deal with the change in circumstances after a Will is prepared is to prepare a new Will and revoke the old Will.

Q: Can I disinherit someone in a Will?
You can disinherit someone in a Will, however if the individual you seek to disinherit is your spouse, you must be aware that in the State of New York, a spouse is entitled to a “right of election”. This entitles a spouse, in the State of New York, to the greater of $50,000 or one-third of the estate of their spouse. A spouse can request to take their elective share of an estate within six months after the service of a copy of notice of the administration of the estate or within two years after the individual died. The spouse’s right of election can be negated by a prenuptial agreement, postnuptial agreement, or by the execution of the waiver of the spousal election rights.

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.

Q: Can I name more than one person as my executor?
Yes. You can appoint co-executors. Sometimes having more than one executor can complicate matters instead of simplifying them. If you name co-executors they both will have to be available to act together with regard to handling your estate.

Q: Does my executor have to live locally?
There are generally no restrictions as to where your executor resides. However, in most situations your executor should live within the United States of America.

Q: What are the duties of an executor?
An executor must arrange for the burial of the decedent. He or she must gather the assets of the estate. The executor must notify the parties to the will and the next of kin of the passing of the decedent and of the existence of an estate proceeding. The executor must collect the decedent=s property and pay the estate=s bills. In the end the executor must distribute the decedent=s assets pursuant to the terms of the will.

Q: Do I need to know what I want in my will before I schedule an appointment to meet with an attorney to discuss it?
The answer to this question is no. The initial meeting with regard to an estate plan is to some extent an educational meeting. The attorney at the first meeting will explain what is involved in estate planning, how the probate process works, and whether a simple will, a complicated will or a trust is needed. The attorney will discuss the priorities you have concerning how your assets are to move from one generation to another, if you have minor children, who will be the guardians of your children, and your objectives. Prior to meeting with the attorney you should have an idea as to what your assets are and a general idea as to who you would like to receive them.

Q: How much will it cost to write a will or a trust?
The cost involved in drafting wills and/or trusts depends on the complexity of the document and the amount of time and effort the attorney will have to put in to preparing these documents. Generally speaking, most attorneys will either offer a free consultation or a very low cost consultation to discuss these matters. When scheduling the initial meeting, you should inquire as to whether there will be a cost for the consultation.

Q: Should you bring any documents with you for your initial consultation? And if so, what documents?
It is extremely helpful if you prepare a list of all of your assets. You should also have knowledge of whether you have life insurance, annuities, 401(k) plans, pension plans or other retirement benefits, and who are the designated beneficiaries of these various retirement benefits

Q: Can you orally make a will in New York?
The legal term for an oral will is a nuncupative will. The only time a nuncupative will can be made is by a member of the armed services of the United States at a time of war or armed conflict. In these situations, an oral or nuncupative will can be made if the individual clearly states his or her intentions in front of at least two witnesses. Oral wills automatically are invalidated one year after the individual making the will leaves the armed services of the United States.

Q: Can you hand write your own will in New York?
The legal term for a handwritten will, in the State of New York, is referred to as a holograph will. An individual can make a handwritten will in the State of New York if he or she complies with all of the will making requirements. It is almost always a terrible mistake to try to prepare one’s own will either in your own handwriting or by drafting it on a computer! If there is a deviation from New York State will drafting requirements the will can be invalid. Unfortunately, your heirs will not uncover this until after you pass away.

Q: Can a will be changed, modified or revoked?
Yes to all three. A will can be revoked by simply tearing it up, destroying it or preparing a document revoking the will. A will can be modified by destroying the old will and writing a new will. In addition, a will can be modified by a document called a codicil. The codicil modifies the original will. An individual making a will can change his or her will as many times as he or she wants and rewrite it as often as he or she desires.

Q: How does an individual start a probate proceeding?
To start a probate proceeding a probate petition must be prepared. Upon submission of the probate petition and will, an original raised seal death certificate, and an original paid funeral bill must be submitted to the Surrogate’s Court in the County in which the decedent resided prior to his or her death.

Q: How long does the probate process take from start to finish?
Unfortunately, there is no set time for the probate process in the State of New York. The amount of time the probate process takes relates to a variety of factors. To start with, some counties have greater backlogs and delays than other counties. The county the will is probated in is one factor. The complexity of the will, the number of beneficiaries, issues concerning locating the beneficiaries, the types of assets contained in the will, the difficulties involved in liquidating the assets contained in the will, are all other factors which contribute to the time it takes to complete the probate process. In addition, if individuals object to the will or challenge the will this also lengthens the probate process.

Q: Do executors get paid?
Yes. Executors receive commissions in the State of New York. The commissions are based on the value of the probate estate. Real estate and personal property left in what are known as specific bequests are excluded from the estate for purposes of calculating the executor’s commissions. The executor’s commissions in the State of New York are 5% of the first $100,000 of the estate, 4% of the next $200,000, 3% of the next $700,000, 2 ½% of the next $4,000,000 and 2% of any amount above $5,000,000.

Q: Can a spouse be disinherited in New York?
Yes and no. You can specifically disinherit a spouse in the State of New York. However, a spouse can challenge being disinherited. If the spouse challenges being disinherited, he or she would be entitled to at least $50,000 or 1/3 of the net estate, whichever is greater. The method by which a spouse challenges being disinherited by an estate is called exercising the right of election. Rights of election can be exercised whether there is a will or assets pass outside of a will. This means a spouse can exercise a right of election against testamentary substitutes, such as joint bank accounts, annuities, and other types of testamentary substitutes.

Q: Is there a time frame by which a spouse must exercise his or her right of election?
Yes. A spouse must exercise their right of election within six months of the issuance of letters testamentary or letters of administration, but under no circumstances more than two years after the death of the decedent. Written notice of the exercising of an individual’s right of election must be served on the executor or administrator of the estate.

Q: Can a spouse waive his or her right of election?
Yes. A spouse may waive their right of election either in a prenuptial agreement or a post nuptial agreement. In addition to prenuptial and post nuptial agreements, a spouse can simply execute a waiver of election document.

Q: What happens if an individual named as a beneficiary of a will dies before the person who made the will dies?
When a beneficiary does not survive the testator (the person who made the will) the devise to that beneficiary fails. For a beneficiary to inherit, he or she must survive the testator. However, there is an exception to this rule. If a will makes a bequest to the testator’s children or siblings and that beneficiary dies before the testator dies, the descendants of the deceased beneficiary inherit whatever the deceased beneficiary was entitled to inherit under the terms of the will. Who inherits and how they inherit can be complicated. You should always see an attorney to deal with these issues.

Q: What is estate litigation?
If an individual feels there is a problem with the Will or the circumstances surrounding the drafting of the Will, he or she can challenge the Will. This is undertaken by appearing in court on the return date of the probating of the Will and advising the court you seek to challenge the Will. In addition, appropriate legal documents need to be drafted noting your objections to the probating of the Will.

Q: What is a kinship hearing?
Individuals who die without a will, have no children and all their brothers and sisters have died before them, may have next of kin who are nieces and nephews. A kinship hearing is necessary to prove the relationship the nieces and nephews, and/or aunts and uncles had with the decedent. In the State of New York, cases of this nature are usually handled by the Office of the Public Administrator. As part of the administration procedure, the counsel for the Public Administrator asks the Surrogate’s Court to determine who are the rightful heirs of the decedent.

Q: Do I need a lawyer to draft a Will? What are the technical legal requirements to prepare a Will that is valid in the State of New York?
To start with, only competent individuals who are at least 18 years of age and of sound mind can draft a Will in New York. The Will needs to be in writing. The person drafting the Will must sign the Will at the end. In the event the individual having his or her Will prepared is unable, due to disability , to sign his or her name, he or she can instruct another individual to sign his or her name to the Will in the presence of the individual whose Will is being prepared.
The Will must be acknowledged by the person making the Will before at least two witnesses who are in the room with the person making the Will during this entire process. The person making the Will must state in front of these two witnesses that the document that is prepared is his or her Will. This is referred to as publishing the Will. After the individual acknowledges that the document is his or her Will, each of the witnesses must sign at the end of the Will. Then each of the witnesses must write their name and address.
The Will can be a self proving Will. This means that when the person who makes the Will dies, the witnesses to the Will will not need to be found to sign an affidavit concerning the validity of the Will. To accomplish this, in addition to the signing at the end of the Will, the witnesses would execute a self proving witness affidavit.

Contact a New York Wills & Trusts Attorney

To discuss your situation with a New York wills & trusts attorney, please contact The Law Offices of Schlissel DeCorpo 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.