New York Wills: Frequently Asked Questions
New York Wills: Frequently Asked Questions
Writing a Will is an important step towards end of life planning. However, the responsibility of making a Will isn't just for the elderly. If you are married, own property or have children you especially need to plan. Here are some simple tips to help guide your way:
1. Who should I appoint as executor?
The executor is the person who manages your estate. They collect and receive all your property, apply for probate and transfer the assets to your beneficiaries according to your New York Will. Generally, spouses appoint one another as executor and their children as alternate executors. The alternate executor is only appointed if the first person has already died or renounces their position.
You should without doubt appoint a backup. If you're unmarried, you could name your children or your parents. In any event, it should be a person that you trust.
Some people believe that the executor is barred from receiving any gifts under a New York Will. This is not the case. You can have the same person as executor and a beneficiary under your Will.
2. Can I leave specific property?
Yes. You can leave specific bequests. This would be fore example "I give my wedding ring to my granddaughter Susan Smith". You can leave as many specific gifts as you like. Generally, if that specific property doesn't exist at the time of your death, then the gift just fails. After you name your bequests, you should stipulate who is to receive the residue. This can be a number of persons. Always have a residue clause, even if you believe you named all your property specifically. This avoids problems in case you missed any assets or if you acquire more.
3. What if I don't have any specific gifts?
You don't have to name any specific property. You can simply deal with the whole of your estate. Generally, people leave their whole estate to their spouse and then to their children if their spouse predeceases them. Depending on your situation, you are free to leave your estate to whomever you like. However, if you exclude your spouse, he/she is generally entitled to an elective share of your estate plus exempt property under New York state law.
4. What property can I gift in my Will?
The property that passes through your New York Will includes all your assets (except jointly held property and assets which already have a designated beneficiary such as transfer on death accounts, assets of a living Will and life insurance policies).
5. Is it safe to use a Will template form?
Yes and No. Many people try to save attorney costs by purchasing a simple Will form or guide to draft their New York Will. You need to know there are inherent risks in making your own Will. Many probate problems occur due to the ambiguous wording of home made Wills.
The simple Will forms are great if you just wish to follow their standard use (ie: simply fill out the blanks with the names, no additional clauses or text). Even then problems can arise if the document isn't executed (signed and witnessed) properly. An attorney can avoid these disasters.
In any case, if you intend to draft your own Will, make sure the providers of the forms guarantee they are written by a lawyer and are current. You should also check out the integrity of the company providing the Will forms.
As with any legal document, there is a whole variety of issues to consider when making a Will. You should research the requirements of making a New York Will and your options before jumping in to make the document.
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