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Why Do I Need A Will?

In the event of your death, a will is used to determine how you wish your property to be distributed. Through a will, you can appoint an executor of your estate, create any trusts you’d like, or arrange for property to be transferred in a particular fashion. If you want control in appointing a legal guardian for your children, a will is necessary. A will is a legal document whose terms must be followed to the letter upon your passing. Without a will in place, legal disputes could erupt between members of your family and those close to you in determining your final wishes.

What If I Die Without A Will In New York?

In the state of New York, dying without a will in place results in your property being distributed in accordance with intestacy laws. In New York, this means that it will be given to your relatives, beginning with your closest. The list begins with your spouse, who will get everything if you have no children. If you do have children, then the property will be divided between them and the spouse, generally favoring the spouse. In instances where there are no children and/or spouse, your property will be given to your parents or grandchildren. The search will continue through siblings, aunts, uncles, cousins, grandparents, and relatives of your spouse (should you have one). It continues through the family tree until a relative is found. However, if the court is unable to find any living relatives, the state will then take possession of your property.

How Do I Create A Will In New York?

Only a resident who is eighteen years or older can make a will that is valid in New York. You must be medically determined to be of sound mind, memory, and be writing the will of your own choice (not under duress by someone else). Because you can only have one will at a time, it’s required there be a clause declaring it your last will that also invalidates previous wills. This is to prevent confusion should you choose to change the terms of your will in the future. A will must be signed in view of two witnesses, who must also be eighteen years or older.

If you’d like your will to be “self-proving”, then it should also be signed in the presence of a lawyer. First, you will sign the will, then the witnesses add their own signatures stating that they were present when you signed. Finally, the lawyer will notarize the will. Though this isn’t required by law, it’s been recommended by the American Bar Association. A will that meets these requirements will be considered “self-proving” when it arrives at a probate court and will likely require no other proof to be considered valid.

What Kind of Wills Exist in New York?

Three types of wills are recognized by the state of New York: written wills, printed wills, and oral wills. The vast majority of wills are printed, with the signatures being the only part to feature handwriting. In order for a will that is handwritten to be considered valid, the entire document must be written solely by the person making the will, also known as a testator. With this option there is no need for witnesses, however, two disinterested witnesses will need to testify that the handwriting is yours. Otherwise, the will could be rejected by the probate court. Oral wills, also known as nuncupative wills, are the least common type. They are only valid if the testator was a member of the armed forces during a time of war or worked as a mariner at sea. Oral wills require the testament of three witnesses who were there when the will was initially made.

What is Probate?

Probate is a legal process that determines a testator’s remaining debts. Probate sees that these debts are paid before the remaining assets of the estate transfer to the will’s stated beneficiaries. The probate process begins when someone files the original will alongside proof of death. The letters of testamentary, which grant authorization to the filer to carry out the necessary duties to handle and otherwise settle the estate of the deceased, will also need to be petitioned for. It becomes the filer’s responsibility to contact any of the deceased’s creditors and beneficiaries. The filer is responsible for taking stock of the entire estate, including getting a valuation of all remaining assets. They must use the deceased’s assets to pay off any remaining debts and taxes. Once all of this is taken care of, and the requests of the will met, the estate is then closed.

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Do I Need an Attorney to Make A Valid Will?

The state of New York does not require you to have an attorney when creating and filing your will. However, having the assistance of an attorney during the process is the better option. With an attorney’s oversight and input, you’ll have a safeguard against any complications that may arise after your passing. An experienced asset protection attorney in New York will be able to look at your assets and make sure that everything gets addressed in your will without overlooking any detail in the process. Consulting an attorney is an especially good idea if you have sizable assets and have complicated directions for how you wish to have them distributed. An experienced attorney is the best way to make certain that your wishes will be honored and your loved ones will receive exactly what you intend to leave them. The attorneys of Ortiz & Ortiz have the experience and expertise needed to help you lay out your final will and testament and ensure that it is followed to the letter.