New York Wills
What is a New York Will?
A New York Will (formally known as New York Last Will and Testament) is a legal document which takes effect after your death. It is usually drafted by a lawyer but many people have started to write their own Will.
New York Wills enable you to:
- name who is to receive your property once you die (called your beneficiaries);
- designate an executor (the person to manage your affairs in accordance with your Will);
- nominate a guardian for your minor children (if their other parent cannot);
- create a trust for your minor children;
- create a trust for your pet.
Do I need a New York Will?
Everybody over the age of eighteen should make a New York Will. Even if you don’t have any property, having a Will makes matters much easier for your family members. Even small issues such as arranging your funeral and closing your bank accounts can be simplified with a Will.
Some people argue that you only need a living Will, rather than a regular Will. The truth is such a broad statement does not apply to all individuals. A living Will is usually used to avoid the cost of probating the Will.
However, living wills themselves require an expensive upfront cost. They also need to be funded (which means you need to transfer all your property into the trust). Even if you have a living will, you still need a New York Will to ‘pour over’ any assets to the trust which you may not have transferred. For many Americans, a simple Will is sufficient.
How can I make a New York Will?
New York Wills can either be prepared by an attorney or you may write a legal Will yourself. Having an attorney prepare the document is the safest way to ensure your wishes are upheld (especially if you feel the Will may be challenged). To consult an attorney, click on the ‘New York Will & Probate Attorneys’ link to find an attorney in your area.
If you wish to save costs and draw up your own Will, there are many resources available. First, you should consider the requirements of making a valid New York Will; including formalities such as signing and witnessing. You may then use Will Software or online Will Forms to help make your Will. Make sure these products are up to date and actually written by a qualified attorney. You may consult our New York Will Forms to see some samples.
When should I update my Will?
You should refer back to your document on a regular basis to ensure it contains your current wishes. New York Wills should be updated as soon as you become married, divorced or have a child (by birth or adoption). These are known as life changing events and can have drastic consequences on your estate if you do not update your Will.
What property can I dispose of in my Will?
You can only dispose of property which belongs to you in your sole name. You cannot use New York Wills to dispose of property which you hold jointly with another person (since that person has right of survivorship), assets which designate a beneficiary (such as IRAs and life insurance proceeds) or assets held in trust. All remaining property can be passed through the Will.
You can designate specific bequests and then divide up the residue. Alternatively, you can deal with the whole of your estate (rather than listing specific items). Specific bequests are gifts of particular property to specified persons (eg: my gold brooch to my sister Agnes).
If I don’t have a Will, does the State get my property?
This is a common misconception. Many people believe if they don’t make a New York Will, the state ends up inheriting their assets. This is not so. People who die without a valid Will (called dying intestate) fall under the intestate succession law. This means their property is distributed to the persons in priority in accordance with that law. Only if there are no heirs (including spouse, children, grandchildren, parents, aunties, uncles or other next of kin) will the estate pass to the state of New York.