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What is a Will and How Does it Work

A will is a legal document that determines what happens to your propery after you die. For a will to be valid in New York, it has to be signed by the person whose will it is and witnessed and signed by two witnesses. The witnesses need to see the person signing the will and need to hear the person say that it’s his or her will.

The person whose will it is is called a testator. The testator must be of legal age, must be of sound mind at the time the will is executed, and must have the capacity to undestand what his or her assets are and who his or her relatives and friends are.

The will, in order to be valid, has to be executed in accordance with the formalities required by state law. In New York, under Estates, Powers & Trusts Law (EPTL) § 3-2.1, the will must be signed at the end of by the testator (or another person in his presence and direction) and attested by two witnesses who shall acknowledge that the testator signed the will in their presence or acknowledged that the signature in the will is the testator’s with the declaration of the testator that the document he is signing is his will. When the will is executed under the supervision of an attorney, there is a presumption that the will was validly executed.

What happens if I don’t have a will

Many people wanting to know what is a will also ask whether they need a will. If you don’t mind leaving your property the way state law distributes your property if you died without a will, then you don’t need a will. In New York, under EPTL § 4-1.1, if a person dies (the “decedent”) without a will, it goes to the following relatives, depending on who survives the decedent:

  • If the decedent is survived by a spouse and issue (children or descendants of children), $50,000 plus ½ of the estate goes to the spouse, and the balance goes to the issue by representation.
  • If the decedent is survived by the spouse with no issue, everything goes to the spouse.
  • If the decedent is survived by issue but no spouse, everything goes to the issue by representation.
  • If there is no spouse or issue but one or both parents are alive, the whole goes to the surviving parent or parents.
  • If there is no spouse or issue or parents, the whole goes to the issue of the parents by representation.
  • If there is no spouse or issue or parents or parents’ issue, but the decedent is survived by one or more grandparents or issue of grandparents, then ½ to the maternal surviving grandparents and their issue and ½ to the paternal surviving grandparents and their issue, but in this case, their issue should not be farther than the grandchildren of such grandparents.
  • If there is no spouse or issue or parents or parents’ issue or grandparents and their issue, the estate goes to the great grandchildren of the grandparents, ½ each to the maternal and the paternal side, per capita.

If one has property but doesn’t agree with the way state law distributes the property when one dies without a will (intestate), then one needs a will (or a trust) to dispose of the property in the way they see fit. If one dies with a will, the preference for estate distribution provided by state law will not be applied. Instead, the provisions of the will shall apply. So if you want to leave property with a friend, or if you have a spouse and children, yet you want to leave some property to your parents or your siblings, then it is recommended that you execute a will (or a trust).

Is it better to have a will or a trust

People trying to find out what is a will also learn that a revocable living trust can produce the same effect as a will. Both wills and trusts can distribute property upon death of a person. Both are two different documents which require different formalities in order to be valid and effective. However, they can produce the same effect. To know more about the similarities and differences between wills and trusts, you can click here. In most cases of estate planning, both a trust and a will are used in order to distribute one’s assets. Majority of the property is normally passed through a trust in order to avoid probate, while the remaining properties not included in the trust are distributed under the catch-all provisions of the will.

What happens to a will after the person who made it dies

One might be wary when executing a will because of the legal costs associated with having it admitted to probate. Knowing what a will is includes knowing that a will, in order to be effective, must be submitted to the court for probate, and only after a court order admitting the will for probate can the provisions of the will be given effectivity. However, when one dies intestate (without a will), one still needs to go through court to file a petition for administration and for the issuance of letters of administration. Without the issuance of such letters, one’s relative cannot access the decedent’s bank accounts and other properties. For this reason, the legal costs related to estate distribution when one dies with a will or without a will are similar because in both cases, one needs to go to court and requires the services of a lawyer. Because the costs are the same, it is recommended to use a will so that a person may solely direct the disposition of his properties upon his death.

What happens in a small estate

In some cases, when the estate is small (below $50,000 and with no real property), whether the decedent died with or without a will, the beneficiaries or heirs can go through a simplified court procedure for small estate administration. If the decedent died with a will, the executor is named as the voluntary administrator. If the decedent died without a will, the closest living heir is appointed as the voluntary administrator.

If you want to know what is a will, what your options are in planning your estate, if you are considering drafting a will or thinking about executing a trust, 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 attorneyalbertgoodwin@gmail.com.