For most of us, planning for what happens to our possessions after we leave this earth is not a top priority. At least this would be the impression you might take away from the fact that 6 in 10 American adults have never taken the time to create a will or living trust. This is frustrating; even a little bit of forethought from us on what will happen to our assets will save our heirs a great deal of stress, effort, and cash.
Here’s what we’re saying: a will is critically important for the loved ones we will all leave behind. Perhaps, if we all knew a little bit more about what to expect, and how to approach end-of-life planning, the data would show more Americans than the 40% referenced above, planning ahead for a time when we won’t be here anymore.
To help, we wrote out 10 bite-sized quick facts to help you better understand how wills work. At New York Legacy Lawyers, our New York estate planning lawyers are available to answer your questions and assist you in starting on your will and estate plan. To learn more about how we can help you, call (718) 713-8080 today to schedule a consultation.
1. HOW DO WILLS WORK?
Simply put, a will directs where you desire your property to go when you pass. Ideally, it takes the “guesswork” out of dividing your property among loved ones. Moreover, it helps reduce the legal back and forth that can arise from competing claims to your assets.
2. WHAT REALLY HAPPENS IF I DON’T LEAVE A WILL?
If you don’t have a will, that’s when a series of “if/then” property laws will govern how your family will receive your belongings. For example, your property will be divided based on whether or not you have a spouse, children, parents, siblings, and more.
NYCcourts.gov does an excellent job of explaining this further.
3. WHAT ARE THE REQUIREMENTS FOR CREATING A WILL?
For a will to be legal in New York the following are basic requirements that should be met:
The testator (the person creating a will) must be at least 18 years old and of sound mind.
The will must be signed by the testator (you) or someone with legal authority to sign on a testator’s behalf
The will must be signed in the presence of two witnesses, and it must be written.
4. DO I HAVE TO LEAVE MY ESTATE TO A PERSON?
If you’d like, you can leave your estate to a charity, school, or church instead of an actual person.
5. DO I LEAVE INSTRUCTIONS FOR MY BURIAL IN THE WILL?
You can technically leave instructions for your funeral in your will, but it’s best to express your funeral wishes to your loved ones verbally or in another document.
6. DOES A WILL HAVE TO BE NOTARIZED?
In New York, wills don’t have to be notarized to be legal.
7. CAN I VOID A WILL ANYTIME?
You can revoke a will at any time by destroying it. Burning it or shredding it will suffice to demonstrate intent to destroy it. Alternatively, you may create a codicil. Regardless of your options above, it’s best to discuss your options for voiding a will with an experienced estate planning attorney.
8. WHAT’S A CODICIL?
A codicil is an amendment or change you make to an existing will.
9. CAN I CREATE A WILL IF I’M UNABLE TO SIGN MY NAME?
If you’re unable to sign your name but have been legally signing with an “X” that will count as a signature. Or if you have given legal permission for someone else to sign your name, that person can sign your name on a will in the presence of your witnesses.
10. WHAT CLASSIFIES AS BEING OF SOUND MIND?
If you can understand what you own and who you’d like to leave it to, then you’re likely to have a sound mind.
WILL OR TRUST: WHICH IS RIGHT FOR YOU?
Wills and trusts are both useful for estate planning, but they offer different advantages. The legal documents pertaining to estate planning are subject to state-specific laws and regulations. You may have both a will and a trust, and the information included in each should work together.
In New York, the key difference between a will and a trust lies in the probate court, which is also referred to as the Surrogate’s Court. Probate court is necessary for a will, but not for a trust.
- What is a Will?
A will is a legally binding document that allows you to name an executor to oversee your estate, appoint guardians for your children and caretakers for your pets, determine how your assets are distributed, and express your final wishes and arrangements. However, it is only effective after your death.
A will has some limitations when it comes to distributing assets and is also subject to a probate process, which means it becomes part of public records. Probate can be expensive and time-consuming, which can add to the carrying costs, expenses, and commissions of administering a New York estate. The distribution of assets generally requires a minimum of six months to be completed.
- What is a Trust?
Trusts are more complex than wills and offer various benefits to your estate and beneficiaries. You have various trust options available to you. A significant advantage of trusts is that they avoid probate. To fund your trust, you must transfer legal ownership of your assets to it, and the trust will then become the owner of those assets.
Typically, a trust enables you to administer and allocate your assets throughout your lifetime and beyond. You can place any of your assets inside the trust, which provides greater control over how they are distributed. There are many types of trusts available, more than those available for wills. At New York Legacy Lawyers, our New York estate planning attorneys can assist you and your family in navigating the estate planning process to achieve your asset protection objectives.
WE’RE HERE WHEN YOU’RE READY
If you’ve realized the importance of a will and are ready to get started on yours, make sure you contact us today!