An attorney near you can draft your will and other estate planning documents depending on your objectives.
What is a will?
A will is a legal document that allows you to distribute your property after your death. If you do not create a will, your property will be distributed in accordance with New York laws on intestacy. The distribution of property under New York intestate laws is provided for under Estates, Powers, and Trusts Law § 4-1.1. If you do not agree to this distribution, it is recommended that you find an attorney near you to draft your will.
Why get an attorney to draft your will?
Under New York case law, a will that is executed under the supervision of a New York attorney carries the presumption of proper execution. Although this presumption may be rebutted, it’s a little bit more difficult. Having an attorney draft and supervise the will’s execution will give you peace of mind that even if any of your heirs or beneficiaries question the validity of the will, your will will still be considered valid.
In addition to execution, a New York attorney near you will be able to advise you on the substantive provisions of your will. This type of legal advice is not available when you try to do it yourself. For example, you have a spouse and three kids with a net estate of $400,000. If you do the will yourself, you would probably want to give your spouse and your children equal shares of $100,000 each. A New York attorney near you will be able to advise you that your spouse has the right of election, entitling the spouse to 1/3 of your net estate. So even if you give your spouse an amount lower than 1/3 of your net estate, your spouse can claim with the court the 1/3 entitlement. If you do not agree with this spousal right of election, you have time to consult and draft with your attorney other documents that will allow you to attain your objectives legally.
Healthcare proxy and springing power of attorney
When you go to an attorney near you for the drafting of a will, this attorney should also prepare, at the very least, a springing power of attorney and a healthcare proxy.
The springing power of attorney will allow a person you designate to act in your behalf when you become incapacitated. For example, at 80 years old, you develop dementia or Alzheimer’s, but you still need to pay your bills (i.e., your utilities, your phone, etc.). Someone has to go to the bank, get the money from your account, and make the payments. If you do not have a springing power of attorney, your designated family member will need to file guardianship proceedings in order to access your bank accounts, which is an expensive legal proceeding. You cannot execute a springing power of attorney when you have already lost your mental capacity. With a springing power of attorney, your designated agent only needs to present this document together with a physician’s certification that you have lost mental capacity in order for your designated agent to act in your behalf. This allows you to continuously make financial transactions despite your incapacity.
A healthcare proxy, on the other hand, allows a person to make medical decisions for you when you lose mental capacity. These decisions include whether to donate an organ, to continue life-prolonging methods, and the like.
An attorney near you should, at the minimum, prepare a healthcare proxy and springing power of attorney, together with your will.
Other estate planning documents
An attorney near you will also review your property to see what other documents you might need depending on your objectives. For example, if you prefer not to immediately distribute your property after your death and would like instead to have it managed until your children reach a certain age or conditioned on the happening of an event, you can request an attorney near you to include a testamentary trust in your will.
If you are worried that Medicaid might come after your property after your death, an attorney near you will also be able to help draft the appropriate estate planning documents.
If you’d like your spouse to receive a lesser amount of your property or to give your current spouse the use of your property for life and to give the property to your children after your spouse’s death, an attorney near you will be able to draft a trust that can achieve this objective.
What to gather before your consultation with an attorney near you
Before you meet with your attorney who will draft the will for you, you need to gather this information:
- Name and contact information of your heirs. Your children, your spouse, their birth certificates, your marriage certificate.
- Name and contact information of your beneficiaries. Beneficiaries do not need to be family members, they can also be friends. Beneficiaries are those persons named in your will who will receive property from you after your death.
- What you want to give to each beneficiary. Do you want to give a specific property? Do you want them to receive the remainder of your property after specific gifts have been made?
- Plans for real estate that you own.
- Name of executor and alternate executor. The executor is the person you have designated to file for probate of your will and distribute your estate after your death.
- Whether you would like to create trusts for certain beneficiaries.
- Names of guardians for minor children, if applicable.
- All property you own. This includes stock and brokerage accounts, bank accounts, investment accounts, real property, vehicles, digital assets, NFTs, cryptocurrencies, websites with an income stream, Paypal accounts, etc.
- All debts you have, i.e., mortgage, credit card, loans
Drafting a will is a meticulous process that requires detailed planning and knowledge of the procedural and substantive laws of New York. Although doing it yourself and drafting your own will is a possibility, it is always better to find an attorney near you who can draft it with legal expertise.
Should you need an attorney near you to draft a will, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.