Your will is a written document that directs how you want your property to be distributed after your death. In a will you can also appoint a legal guardian for your children as well as an executor for the estate, and create trusts and arrange for the transfer of all kinds of personal property. New York has specific laws that you must comply with in order for your will to be valid.
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In order to make a valid will in New York, you have to be at least 18 years old. You must also be of sound mind and memory, and you must be making the will out of your own free will. There will be a clause stating that this is your last will and that you are revoking any previous wills. You are required to sign the will in front of two witnesses who are at least 18 years old. These witnesses add their signatures, under yours, declaring that they observed you signing the will. The will can then be notarized by a lawyer who witnessed all three signatures. While this is not a legal requirement, the American Bar Association recommends it as good practice because it makes the will “self proving” for the probate court. The probate court will consider a self proving will to be valid without further proof.
New York recognizes printed wills, handwritten wills and oral wills. Most wills are printed; the only handwriting elements they may contain are the signatures. Handwritten, or holographic, wills are accepted but the entire will must be written entirely by the testator. No witnesses are required. However, two disinterested witnesses must testify that the handwriting is that of the executor in order for a holographic will to be accepted by the probate court. Nuncupative, or oral, wills are only permitted if the testator was either a mariner at sea or with the armed forces during a time of war or other armed conflict. They require three witnesses who must testify before the court that they were present when the will was made.
New York law allows for various kinds of trusts to be set up through a will. For example, The New York State Unified Court System advises that you can set up a trust and appoint a trustee to manage property and money on behalf of minor children or adult children with disabilities. In these cases the trustee is often a close family member or trustworthy friend who can be compensated from the money held in trust.
In New York, probate is conducted in the Surrogate’s Court for the county where the testator resided. It is the legal process through which the testator’s debts, including taxes, are paid and the assets of the estate are transferred to beneficiaries. To initiate probate, you must file the original will and proof of death, along with a petition for letters testamentary. The letters testamentary authorize you to conduct all activities that are necessary to settle the estate. You must then contact creditors, locate and write to beneficiaries, review and pay outstanding debts, calculate and pay taxes, and make a detailed inventory and valuation of all of the assets of the estate, among other activities. After all tasks are completed, you are required to close the estate.
Dying Without a Will
When a New York resident dies intestate, or with no will, the estate is divided in accordance with state laws. According to Lawyers.com, if you are survived by a spouse and no children, your spouse will inherit the entire estate. However, if you have children as well as a spouse, your spouse will inherit the first $50,000 and half of the rest of your property. The rest will go to your children. If you have neither spouse nor children, your estate will go to other relatives. If you have parents, they will receive it, but if not, the estate will be divided among any siblings. If there are no siblings, it will be transferred to nieces and nephews, then cousins. If no relatives can be located, everything will become the property of New York state.
References & Resources
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