What is a Will?

A will is legal document that allows a person to direct what happens to his assets after his death. The will can also name a guardian for any minor children, without having to go through formal guardianship proceedings.

Types of wills

Simple will

A simple will is a will that has been executed in accordance with the state law’s formalities. In New York, a simple will must have the following requisites:

1. Testator must be at least 18 years old and of sound mind and memory. ^[1]
2. Testator signs the will at the end. Another person can sign the will in the name of the testator, but the signing must be done in the testator’s presence and under the testator’s direction. That person must also sign his own name. ^[2]
3. Testator must sign in the presence of two witnesses or must acknowledge to each of the two witnesses that the signature in the will is his.^[3]
4. Testator must declare to the witnesses that the instrument he is signing or has signed is his will. ^[4]
5. Two witnesses must, within 30 days from each other, attest the testator’s signature as affixed or acknowledged in the witnesses’ presence.^[5]

In case an attorney drafted the will and supervised its execution, the will enjoys a presumption of proper execution. Though hard to rebut, this presumption is still rebuttable. Based on the requisites, there are only two ways to contest a will in New York: (a) attacking the testator’s soundness of mind; and (b) attacking the proper execution of the will.

Oral or nuncupative will

A nuncupative will is a will that is unwritten, spoken, or orally made. In New York, oral wills are recognized for as long as made under certain circumstances.

An oral or nuncupative will to be valid must have the following requisites: ^[6]

1. It must be made by the testator himself before two witnesses.
2. The will’s provisions must be clearly established by two witnesses.
3. The testator must be any of the following:
   1. A member of the armed forces while in actual military or naval service during a war or other armed conflict in which armed forces are engaged; or
   2. A person who serves with or accompanies an armed force engaged in actual military or naval services during such war or armed conflict; or
   3. A mariner at sea.
4. The will has not become invalid under any of the following circumstances:
   1. If made by a member of the armed forces or someone who served alongside the armed forces, upon expiration of one year following discharge from the armed forces or cessation of serving with the armed forces.
   2. If made by a mariner while at sea, expiration of three years from the time the will was made.

Holographic Will

Holographic wills are wills that are entirely written in the handwriting of the testator. Holographic will are usually not witnessed or executed in accordance with state laws.

In New York, a holographic will is valid only if made with the following requisites: ^[7]

1. The will is entirely written in the handwriting of the testator.
2. The will has not been executed or attested in accordance with state formalities.
3. The testator must be any of the following:
   1. A member of the armed forces while in actual military or naval service during a war or other armed conflict in which armed forces are engaged; or
   2. A person who serves with or accompanies an armed force engaged in actual military or naval services during such war or armed conflict; or
   3. A mariner at sea.
4. The will has not become invalid under any of the following circumstances:
   1. If made by a member of the armed forces or someone who served alongside the armed forces, upon expiration of one year following discharge from the armed forces or cessation of serving with the armed forces.
   2. If made by a mariner while at sea, expiration of three years from the time the will was made.

Joint or mirror will

A joint or mirror will is a will that has been signed by two people, usually spouses. It is a mirror will because the wishes of each testator are identical and mirror each other. Generally, these mirror wills often state that when one spouse dies, the couple’s property is left to the surviving spouse and after that surviving spouse dies, the remaining property is left to the couple’s children. In New York, a joint or mirror will is not valid because only one testator should sign the will at the end of the document.

Will vs. no will

Why would a person execute a will? What are the consequences of a person dying with and without a will?

Dying with a will

When a person dies with a will, the person gets to control who receives his property after his death. This person can decide to leave his property to his friend, in trust for his pet, or to charity, effectively disinheriting the person’s children or parents.

In New York, the only one a person cannot disinherit is the spouse. When a person dies with a will, the spouse is entitled to receive either $50,000 or 1/3 of the net estate, whichever is higher. If the spouse does not receive this value in the will, the spouse can elect to receive this share by petitioning the Surrogate’s Court. ^[8]

Dying without a will

When a person dies without a will, this is called dying intestate. The person does not get to direct who receives his property after his death. In the absence of a will, state law will provide who gets to receive the person’s property after his death.

In New York, the following persons will receive the estate of the deceased if the deceased died without a will: ^[9]

If decedent is survived by:	The following persons shall receive decedent’s estate:
Spouse and issue (children and their descendants)	$50,000 plus ½ to spouse, and balance to children or children’s descendants by representation
Spouse and no issue	Everything to the spouse
Issue and no spouse	Everything to the issue by representation
No spouse, no issue	Everything to the surviving parents
No spouse, issue, or parents	Everything to the issue of the parents by representation
No spouse, issue, parents, or parents’ issue	To the grandparents or issue of grandparents by representation, ½ each to the paternal and maternal side

When a person dies without a will, his property might go to estranged relatives that he either does not know or does not want to leave his estate with. Dying with a will ensures that a person gets to direct distribution of his estate, even after his death.

What a will can and can’t do

A will directs the immediate distribution of your estate after your death. Once all debts and liabilities are paid, the executor has to immediately distribute your estate to the beneficiaries. There can be no inexcusable delay in distribution.

You can also appoint a guardian for minor children in your last will and testament. When the Surrogate’s Court approves the appointment of guardian in your will, that person becomes the legal guardian of the minor child.

A will cannot manage your estate indefinitely until the happening of an event. For example, you cannot write in your will that your child will receive $2000 monthly from rental income of your condo in Manhattan, and once the child reaches 30 years old, the child will receive the condo in Manhattan. If this is your desire, you need to establish a trust. A trust allows you to manage the property for a longer period of time (sometimes decades) before distributing the assets to your intended beneficiaries.

How do you change a will

There are two ways to modify a will. You can either execute a codicil or an entirely new will.

A codicil is a legal document that modifies a previous will. To be valid, a codicil has to be executed with the same formalities as a will. For example, a codicil can only contain one provision, which states, “I amend Section 5 of my will dated (insert date) and leave my condominium property in Manhattan with address at (insert address) to (new beneficiary).” This codicil has to be signed by the testator and attested by two witnesses.

You can also modify a will by executing a new will. A new will will contain all the provisions of a will, such as designation of an executor, etc. To be valid, the will must executed with the formalities required by state law. In this case, the previous will will be deemed revoked and the new will will be given precedence.

Since the execution of both a codicil and a new will require the same formalities, why would one choose a codicil over a new will? As a practical matter, codicils were preferred before the advent of computers because wills were typewritten. To create a new will would require typewriting the entire will again, which would be more laborious as opposed to executing a codicil. However, with the advent of the computer, modifying a will is as easy as opening up Microsoft Word, making the necessary changes, and printing the new will all over again. For this reason, codicils are now less common. Today, modification of wills is made by executing new wills.

How to revoke a will

To revoke a will under New York law, any of the following can be done: ^[10]

1. Testator executes a new will
2. Testator signs a document stating that it intends to revoke or alter the previous will, and execute it with the same formalities as a will
3. Testator burns, tears, cuts, cancels, obliterates, mutilates, or destroys the will, or if done by another person, in the presence and under the direction of the testator with two witnesses
4. Testator executes a holographic or nuncupative will under the circumstances and requisites provided in EPTL § 3-2.2

The revocation of a will includes the revocation of all codicils related to the will. When revoking a will, remember that if you do not execute a new will, you will be considered to have died intestate.

Has the will been lost or revoked?

When the original will cannot be found, the presumption is that there is either no will or the will has been revoked. However, you can still establish that the will has just been lost and the testator did not have any intention of revoking the will.

Under SCPA § 1407, a lost or destroyed will may be admitted to probate under the following requirements:

1. You must establish that the will has not been revoked;
2. You must prove that the will was executed in accordance with state formalities;
3. You must have either:
   1. Two witnesses clearly and distinctly proving all of the provisions of the will, or
   2. A copy or draft of the will proved to be true and complete.

What properties can be passed through the will?

Property designated as probate assets passes through the will or by intestacy. All other properties are considered non-probate assets.

Non-probate assets are those assets owned under joint tenancy with rights of survivorship, trust assets, or assets with designated beneficiaries. The rest are probate assets.

Non-Probate Assets	Probate Assets
Property owned under joint tenancy with rights of survivorship or tenancy by the entirety (survivor inherits) Assets with designated beneficiaries, such as insurance policies, 401ks, IRAs, annuities, bank/investment accounts with pay-on-death or transfer-on-death designation (beneficiary inherits) Trust assets (beneficiary inherits)	Property owned under tenancy-in-common Assets with designated beneficiaries, but the designated beneficiaries have pre-deceased and there are no alternative beneficiaries Assets held in the deceased’s individual name, with no beneficiary designation

Important things to consider when drafting a will:

When drafting a will, before meeting your attorney, list down all your property, both digital and physical, with or without beneficiary designation. Knowing the entirety of your assets will allow you to make an informed equitable distribution of your property to your designated beneficiaries.

For example, you’d like to leave all our property to your three children equally. In your mind, you only have your house worth $500,000 as your asset, which will be divided equally among your three children. You have forgotten that you have a life insurance policy worth $100,000 designating only one child as beneficiary. This will provide an inequitable distribution, something you might not have intended.

Another example would be excluding or leaving your spouse with an amount less than 1/3 of your estate. Since you have children from a prior marriage, you decided to leave most of your property to your children and designated your children as beneficiaries of your bank and brokerage accounts, leaving less than one-third of your estate for your second spouse. However, under New York law, assets with designated beneficiaries are considered testamentary substitutes and included in the computation of the spousal elective share. Thus, when your spouse elects to receive her rightful share, the portions of the testamentary substitutes given to your children will be reduced and given to your second spouse.

These are nuances to estate planning which require the skillful legal expertise of a trusts and estates attorney. Although you can DIY your own will and estate plan, it is advisable to have a lawyer prepare your estate plan and draft and supervise the execution of your will to minimize the risks of will contests. Should you need assistance, 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].

References:

[1] EPTL § 3-1.1.

[2] EPTL § 3-2.1(a)(1)

[3] EPTL § 3-2.1(a)(2)

[4] EPTL § 3-2.1(a)(3)

[5] EPTL § 3-2.1(a)(4)

[6] EPTL § 3-2.2

[7] EPTL § 3-2.2

[8] EPTL § 5-1.1A

[9] EPTL § 4-1.1

[10] EPTL § 3-4.1

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