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Last Will and Testament

A Last Will and Testament is a written document describing how you wish your estate to be handled upon your death. A Will should include instructions regarding whom you wish to designate as your Executor (a person legally authorized to manage your estate after your death),  how you wish to dispose of your remains and who will be the guardian of any minor children (assuming no other parent is living or legally responsible for them).  Most importantly, your Will can and should be used to specify to whom you wish to give your remaining assets (called named Beneficiaries).   Your Last Will and Testament can also be used to provide specific instructions for a variety of other potential matters.  In order to avoid possible disputes (as they can be costly legal actions) after your death, your Will needs to be written as clearly and with as much specificity as possible.  Estates that consist of substantial real and personal property and where there are multiple beneficiaries, generally should be drafted by an attorney in order to assure that your wishes are followed and that expenses associated with the distribution of your estate are kept to a minimum.  Note: a Last Will and Testament is only one of four essential estate related documents that every adult should have.  To learn more click here.

What if I don't have a Last Will and Testament?

If you die without a valid (legally acceptable) Last Will and Testament, you will be considered to have died intestate.  Generally, this means that your estate will be distributed in accordance with the intestacy laws of the state you reside in when you die.  The distribution of assets under intestacy laws may not be in accordance with the way you would prefer to see your assets handled.  In addition, any other decisions about how your remains will be handled, who will become guardians of minor children, etc. will be made either by a judge or by a person appointed by the court to make these decisions.  Having a legally valid Last Will and Testament assures that all of these matters are handled in accordance with your wishes.

What is a legally valid will?

A Last Will and Testament will be considered valid when submitted to probate if it complies with the statutory or case law requirements of the state in which the Will was executed.  In New York State, there are very strict requirements for Wills that were executed in New York.  A legally valid Will must be in writing, signed by the testator (the person who’s Will it is) and it must be witnessed by at least two adults.  The witnesses must be told by the testator that the document is that person’s Last Will and Testament (this is called "publishing" the Will) and either signed in their presence or told that the signature on the Will is that of the testator.  Witnesses must sign the Will within 30 days of it being signed by the testator.  A beneficiary of the Will should not be used as a witness; this may invalidate the gift to that person.  In order to speed the probate process, an attorney will usually have each witness also execute an affidavit regarding their witnessing of the Will.

Can I write and execute my own will?

Generally, the answer is, yes, as long as the Will complies with all the statutory and case law requirements for a valid Will, as noted above.  Some states accept what are known as holographic Wills.  These are documents that were written and signed by the testator and provide some clear indication of their wishes upon their death, but,do not meet the requirements of having been witnessed, published and attested to by the person who has written the Will.  In New York State holographic wills are not valid (except under very rare and limited circumstances); instead a person who died with only a holographic Will be treated as having died intestate.  However, if a person executed a holographic Will in another state that does deem holographic Wills to be valid, New York will recognize that holographic Will.  In general, an attorney will draft a legally valid Last Will and Testament for a  reasonable fee, the size of which will be determined by the complexity of your estate.  This will assure that your final wishes are followed by the courts and your estate is distributed as you desire.  It can also assure you that your beneficiaries will experience a minimal amount of delay in receiving your gifts to them.

Estate Planning

If the total value of your estate is substantial, your estate may be subject to payment of federal estate tax.  There are strategies that you can employ to minimize the impact of estate taxes.  For more information about estate planning, click here.  Note: a Last Will and Testament is only one of four essential estate related documents that every adult should have.  To learn more click here.

Contact Information

If you would like a consultation or wish to arrange for representation on any Social Security matter, criminal matter, drawing up a living will, testamentary will, trust and estate planning or health care proxy, you can contact Glenn W. Magnell at either his Goshen or Cornwall offices. 

Goshen Office: 162 Main Street, Goshen, N.Y. 10924    Phone: 845-294-0585    Fax: 845-926-4091

Cornwall Office: 151 Continental Road, Cornwall, N.Y. 12518   Phone: 845-534-7848  Fax: 845-926-4091

Email: gmagnell@stormkinglaw.com

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