What You Should Know And What Your Options Are

ANTHONY J MINKO
NEW YORK ESTATE PLANNING ATTORNEY

A will is something every adult in New York needs. Regardless of your level of income, how much you own, if you are married, or if you have children, your will is an essential legal document. Through your will you can express your wishes about certain types of legal choices after you have gone. Failing to have a will can cause significant hardships for your family.

WHY YOU NEED A WILL

A last will and testament, the more formal name for a will, gives you the ability to make several different legal choices. If, like most people, you choose not to make a will, those choices must still be made. But if you dont make them, who will? This is not an old question. Every state in the country has very specific laws that apply to situations

The ultimate aim of a will is to designate how you want to distribute any property after your death.

where someone dies without a will. These laws, called laws of intestacy or intestate succession, make your choices for you. They serve as a default, a kind of legal safety net that tells a probate court what your choices are if you dont leave clear instructions. A will, therefore, allows you to provide

your own answers to legal questions that follow after you die. If you leave those questions unanswered, you leave it to your states default laws to fill the gap.

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THE BASIC WILL

So what kind of questions can your will answer? Though wills can be more or less complicated depending on what you want to include, there are three main questions you will be able to address. Inheritances. Through your will you get to choose who will inherit your property. Though there are some limitations, you have broad discretion in choosing what kind of inheritances you want to leave behind. If, for example, you want to equally divide your property between your children or leave everything to your favorite charity, you can (probably) do this. Executor. To make sure your wishes are honored, you can use your will to appoint an executor. The executor will have to care for your property after you die and manage your estate through the probate process. This process involves several steps and requirements, but its essential to ensuring your property passes to the correct inheritors. Guardian. A will is especially important if you are a parent with a minor child. If something should happen to you, your will gives you the ability to name a guardian who will care for your child in your stead.

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LEGAL REQUIREMENTS
As far as legal requirements go, wills are fairly basic. The document you create has to meet some minimum standards as required by New York law. As long as the document meets those standards, a court will accept it as your last will and testament. Here are the basics. Capable. To make a will you have to be an adult of sound mind. A person of sound mind can understand what he or she owns and how your choices will affect the property after you die. Almost everyone is considered of sound mind unless a court has determined that you are incapable of making your own decisions. In Writing. You have to make a will in writing in New York. Though some people in some situations can make a verbal or oral will, these are incredibly rare. In almost all situations, its best to make a written will and keep that document in a safe place. Signed and Witnessed. You have to sign your will after reviewing it. You also have to sign it in the presence of two adult witnesses who then sign after you. If you are not capable of signing because you have a physical impairment, you can have someone else sign for you as long as you do so in the presence of the witnesses. Notarization. It isnt necessary to notarize your will in New York. What you can do, however, is create a self-proving will. A self-proving will includes a sworn affidavit from each of the witnesses. Affidavits have to be signed and sworn to before a notary, but if you include them with your will, you eliminate the need for a probate court to later solicit testimony from the witnesses.

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NOT A PANACEA
Making a will is great, but it isnt enough to create an entire estate plan. In fact, not only are there specific needs that your will cannot meet, the other estate planning elements you create will affect the kinds of clauses you include in your will. For example, consider what a will cannot do: Distribute joint property. If you own property as a joint tenant with the right of survivorship, that property passes outside of your will. If, for example, you die before the other joint owner dies, that owner becomes the new sole owner regardless of what you want. Change pay on death beneficiary. Some property, such as a bank account or money market account, will allow you to name a beneficiary who will receive the property upon your death. These transfer-on-death assets have their own rules about who you can name as a beneficiary. You cant simply choose to name a beneficiary in your will and expect the transfer on death account to honor that choice. Avoid probate. Creating a will does nothing if you are interested in avoiding your estate having to go through the probate process. In fact, it does the exact opposite.

CREATING A COMPREHENSIVE PLAN

Even though wills are often very easy to make and contain very simple elements, that doesnt mean you should try to make your own. You should approach your will as one piece in the estate planning puzzle. The shape of your will depends on the shape of the other pieces you include in your plan. Making a will in a vacuum

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without considering your other options almost guarantees that you will miss out on some important estate planning opportunities.

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About the Author

Anthony J. Minko As an attorney in private practice in Brooklyn, New York, Anthony J. Minko provides a wide range of estate planning and elder law services to clients throughout the New York City area. Mr. Minko creates customized estate plans that enable families to preserve their wealth and provide for the security of their loved ones both during and after their lifetime. He dedicates himself to informing the public of the need for careful attention to their specific situations, regularly presenting educational seminars addressing the growing importance of estate planning. Before forming Minko Law Office, Mr. Minko spent over four years as a trial attorney handling civil and commercial litigation in New York state and federal courts. He also served the senior community as a member of Wells Fargo Bank and the New York City Law Department. Mr. Minko is a member of the American Academy of Estate Planning Attorneys, The National Academy of Elder Law Attorneys, as well as the New York State and Brooklyn Bar Associations. Minko Law Office 6922 12th Avenue Brooklyn, NY 11228 Phone: (718) 238-1727 Fax: (718) 971-1059 www.MinkoLaw.com

Wills in New York

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