Day after day, month after month, and year after year we are planning – planning meetings, planning our anniversary celebration, planning a birthday party, planning that vacation. When it comes to being prepared for our death, however, and making preparations for caring for loved ones after we are gone, we are breathtakingly unprepared. While we all recognize the importance of planning for when we pass, it is estimated that over 60% of adults in the United States do not have a will and/or advanced directives in place.
Executing a will and advanced directives (living will, health care proxy and power of attorney) is the first of many steps in terms of planning your estate. In this newsletter, we are going to discuss what a will is, why it is important and why you should have an attorney draft it for you. We will go into more detail about the advanced directives and other estate planning techniques in upcoming newsletters.
What is a will?
A will is a legal document in which the “testator” (the person making the will) sets forth how the testator’s property is to be distributed at death and to whom the property should be distributed. A will also allows the testator to appoint one or more persons to manage the testator’s estate and carry out the testator’s wishes. A will must be drafted and executed in accordance with the New York Estate, Powers and Trusts Law (New York EPTL) or it may be deemed invalid, especially if someone challenges it.
Why do I need a will?
Any adult should have a will in place. Having a will is important because it allows you to have control over the distribution of your assets after death. If you do not have a will, then your estate will be distributed according to the New York EPTL, which may not exactly be how you would desire your assets be distributed upon your death.
If you should pass while your children are still minors (underage), a properly drafted will could place your assets into a Testamentary Trust, which could provide for your children’s care until they are adults and/or could protect the assets against creditors. In addition, should a minor child survive you, the Surrogate’s court will appoint a guardian to the minor. While the Surrogate’s Court decides who to appoint as guardian, your wishes as to who should be appointed guardian, if stated in a will, is considered by the court.
Your will also states who will be the person that oversees the distribution of your estate and ensure that your wishes are carried out. This person is known as the “executor” of your estate and is appointed by you through your will. Without a will, anyone with an interest in your estate under the New York EPTL may petition the Surrogate’s Court and ask to be appointed to oversee your estate and assets. This may lead to litigation should multiple individuals ask to be appointed to oversee your estate. The more litigation surrounding your estate, the more estate assets will be used to pay legal fees and court costs. Having a will in place may alleviate some of the expense and complexities of administering your estate through the Surrogate’s Court after you are gone.
Why should I have an attorney draft my will?
The New York EPTL is very specific about how a will must be drafted and signed, and a few of the requirements that must be strictly adhered to include: the testator must be 18 years of age or older (or a lawfully married minor); the testator must be of sound mind; the will must be in writing and signed at the end by the testator; and there must be two witnesses to the execution of the will.
There are plenty “do-it-yourself” legal websites that claim to provide drafting services and the legal documents you need for your will. However, if your will is not in strict compliance with the New York EPTL, it is invalid and your estate will be administered as if you do not have a will.
Proper drafting, execution and compliance with New York EPTL requirements are just a few of the many reasons why we, as your attorney, can ensure that you have a will that is acceptable by the Surrogate’s Court, will be difficult to contest, and adequately sets forth your wishes as to how your estate should be distributed to your loved ones. Practicing wills, trusts and estates law, James G. Dibbini & Associates, P.C. has the experience, knowledge, and expertise to navigate you through the complicated and overwhelming wealth of laws, cases and information on wills and other estate planning matters. If you need a will and/or advanced directives drafted, or you have any questions regarding a will, trusts and estates matter, let us help you. Give us a call at (914) 965-1011 or email us at jdibbini@dibbinilaw.com to schedule a consultation.
This James G. Dibbini & Associates, P.C. Newsletter is a publication of James G. Dibbini & Associates, P.C. All Rights Reserved. Quotation with attribution is permitted. This newsletter offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that James G. Dibbini & Associates, P.C. does not undertake to update its publications after their publication date to reflect subsequent developments. Prior results do not guarantee a similar out- come. This publication may contain attorney advertising.
