Lawyers for Making a Will in New York City

As lawyers for making a will, we know that the estate planning process starts before we even prepare any documents. We are here to make sure that you accomplish your estate planning goals and don’t end up with unintended consequences. Estate planning documents can include a will, power of attorney, health care proxy, living will, and an irrevocable or revocable trust, depending on the client’s objectives.

Initial Consultation

A lawyer’s initial consultation with the client will determine the estate planning documents to be utilized based on the client’s objectives. The initial consultation may usually involve a questionnaire or interview regarding the client’s assets, objectives, and beneficiaries.

Usually, the estate planning documents, such as a will, power of attorney, healthcare proxy, and living will, are prepared. But there are certain instances where a trust is recommended, such as the case of a blended family.

In a blended family where there are children from the first marriage and a spouse and a children from the second marriage, a client can establish a trust that names the children from both the first and second marriages as beneficiaries (with percentages if desired) with the second spouse having a life estate. There are numerous ways of drafting a trust that can accommodate the unique circumstances of the client’s case and achieve the client’s objective.

Most modern estate planning documents now simply involve the health care proxy, trust, power of attorney, and pour-over will.

A trust can usually take the place of a power of attorney because in case of the grantor-trustee’s incapacity, the successor trustee can immediately manage the trust assets without requiring the appointment of a guardian. This, however, assumes that the trust is properly funded by the grantor’s property. If there is property not covered by the trust, the power of attorney will allow the management of the property without guardianship proceedings in cases of the grantor’s incapacity.

A trust can also take the place of the will because the property under the trust avoids probate. However, the lawyer can make a pour-over will to ensure that the grantor’s property that are not under the trust are covered by the will, in case of the grantor’s death, and not governed by the state’s intestate laws.

Drafting the Will

Once the initial consultation has been made, the lawyer making the will can now make the first draft for submission and review of the client. On the part of the client, the following tips should be noted:

• Ensure that the attorney you are consulting is registered as an attorney in the state where the testator resides. Each state will have different execution formalities and you may receive wrong advice regarding execution or even the validity of some provisions in your will when you consult an out-of-state lawyer.
• Choose an executor you trust. Nominate a successor executor in case your first choice is incapacitated, unqualified, dead or unable to perform the functions of an executor.
• Designate beneficiaries and successor beneficiaries to provide for contingencies in case the initial beneficiaries are dead or cannot receive the gift.
• Ensure the will includes an attestation clause for the witnesses.

Execution of the Will

Strictly observing the state formalities in the execution of the will is the key to the successful probate of the will as genuine and authentic. In New York, having a lawyer supervise the execution of the will carries with it the presumption that the will was validly executed. An attestation clause also gives rise to the presumption that a will was properly executed. In cases of will contests, however, the witnesses can be called for deposition to determine whether the will was indeed properly executed.

In New York, a will is properly executed when:

• It is in writing, except for nuncupative and holographic wills
• It is signed at the end by the testator (or another person in his presence and direction);
• The testator’s signature is made in the presence of two witnesses or the testator acknowledges his signature to each attesting witness.
• Two witnesses attest that the testator signed the will in their presence or declare that the testator acknowledged to the witnesses that the signature in the document was signed by him. The signing of the attestation clause of the two witnesses must be made within 30 days from the first signing.
• The testator declares to the witnesses that the document he is signing is his will.

An experienced lawyer supervising the execution of the will usually has a script prepared to ensure that the will is validly executed. The script will involve a series of questions to be asked to the testator and the witnesses to ensure that all the state formalities are observed during execution. 

Storing the Will

After the will’s execution, it is important to store the will in a secure and safe location. Even if a will is validly executed, when a will is not submitted to the probate court in its original form, there is a presumption that the will has been revoked by destruction. There may be exceptional circumstances where a copy of the will can be admitted to probate, but in order to prevent this scenario, storing the original will in a safe and secure place is important.

Some places to store it in are the safety deposit box or with the attorney with a notice to the executor on where the will is located. Although some leave the original with the executor, this may give rise to complications when the testator wants to revoke the will prior to death. In this case, the testator cannot revoke the will by destruction since the will is in the possession of the executor. Revoking it requires the executor to return back the original will to the testator for destruction or in the alternative, requires the execution of another will.

Preparing a will requires specialized knowledge on estate planning strategies to ensure the most cost-effective and efficient method in transferring property to the beneficiaries, post-death, given the objectives of the client. It is also requires the expertise of a probate lawyer to ensure that the will is validly executed in accordance with state formalities to minimize any risk that the will is rejected during probate. Should you need legal representation in the preparation of a will, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].