10 Frequently Asked Questions about Setting Up a Will

Posted On August 21, 2023

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.

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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.

Questions About Wills Answers
How do wills work? A will directs where your property goes after your passing, reducing legal complexities and disputes.
What really happens if I don’t leave a will? Without a will, property laws determine how family receives belongings based on relationships.
What are the requirements for creating a will? The testator must be at least 18 years old and of sound mind. The will must be signed by the testator or someone with legal authority. It must be signed in the presence of two witnesses and be written.
Do I have to leave my estate to a person? You can leave your estate to a charity, school, or church instead of an actual person.
Do I leave instructions for my burial in the will? It’s best to express your funeral wishes to your loved ones verbally or in another document.
Does a will have to be notarized? Wills in New York don’t have to be notarized to be legal.
Can I void a will anytime? You can revoke a will at any time by destroying it or creating a codicil. Discuss voiding options with an estate planning attorney.
What’s a codicil? A codicil is an amendment or change you make to an existing will.
Can I create a will if I’m unable to sign my name? If you’re unable to sign your name, alternatives like an “X” signature or another person signing on your behalf may be used.
What classifies as being of sound mind? If you can understand what you own and who you’d like to leave it to, you’re likely of 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.

Who Keeps the Original Copy of a Will

The disposition of the original will varies based on the preferences of the testator (the person making the will) and the advice of their attorney. Some common practices and considerations for keeping an original will include:

  • Attorney’s Office: Many people choose to leave the original will with the attorney who drafted it. Attorneys often have secure, fireproof storage meant for important documents, ensuring the will’s safety. It is essential to inform the executor or trusted family members about its location in case of the testator’s passing.
  • Safe Deposit Box: Some individuals opt to keep their wills in a safe deposit box. However, this choice may have potential complications. Upon death, the safe deposit box could be temporarily sealed, making it difficult for loved ones to access the will promptly. It might require a court order to access the box.
  • At Home: Storing the will at home in a fireproof and waterproof safe is another option. However, it is crucial to inform trusted individuals of its location to ensure it can be found when needed.
  • Filing with Surrogate’s Court: Individuals may file their wills with the local surrogate’s court for safekeeping. However, doing so may make the will a matter of public record. It’s essential to consult an attorney to understand the implications and the process involved.
  • Copies: While the original will is crucial for probate proceedings, having copies is advisable. Ensure that your executor or trusted family members know where the original will is kept. Copies alone are generally insufficient for probate but can provide guidance if there are any questions about the will’s contents.
  • Review and Update: Wills should be reviewed and updated after significant life events, such as marriage, divorce, birth of a child, death of a beneficiary, or substantial financial changes. Each time the will is updated, make sure the most recent version is securely stored, and older versions are destroyed to prevent confusion.

Regardless of where the will is stored, ensuring that chosen individuals can access it when needed is of utmost importance. For specific guidance related to wills or any other legal topics, it is best to consult with a New York estate planning attorney.

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!