Making a Will
- Free Simple Will form
- What is a Will?
- Do I need a Will?
- What happens if I die without a Will?
- What do I need in order to make a Will?
- Who should I include in my Will?
- Can I just write out a Will by hand?
- Will my property go to the State if I don't have a Will?
- I did my Will in another State, do I have to do a new one now that I've moved to New York.
- How should I keep my Will?
- Do I have to file my Will in Court?
- Your Will is a formal legal document used to transfer your assets after you die.
- Your Will can be simple or complex depending on many factors, including:
- The number of people you mention in your Will.
- The age, physical and mental health of the people you include in your Will.
- The value of what you own and whether you need estate tax planning.
- Whether you will be leaving specific things to specific people.
- Whether you will want to set up trusts for people.
- Your individual wishes.
- Your Will will only dispose of accounts and assets which are in your name alone. If you have any accounts, "in joint with" or "in trust for" another person, that account will automatically go to that other person no matter what your Will says. Many people put accounts in joint or in trust so that someone else can get money for them. This is better done with a Power of Attorney as it can result in your family receiving unequal shares after you die.
- Your Will will have no effect until after you die and the Will is admitted to probate in the Surrogate Court.
- To be effective your Will must be properly drafted, properly witnessed and properly kept.
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Do I need a Will?
It is always a good idea to have a Will. However some people need a Will more than others. The popular belief is that the older you are the more you need a Will, but that is not necessarily true.
If you have minor children you should especially have a Will in order to let it be known who you would like to take care of your children should both parents die. This is true even if both parents are young and healthy because they could die in a common accident. Failing to name a Guardian could result in a bitter and expensive legal battle.
Generally speaking, the surviving parent will automatically become the Guardian of your minor children if you pass away even if you are separated or divorced. If you feel that your child's surviving parent is not suitable to take care of him/her upon your death, you should have a Will that says who you do want to be Guardian. While the Court is not bound by your choice of Guardian, your choice in a Will will be given significant weight and can help avoid any uncertainty or legal battles after your death. If you want someone who is not a blood relative to take care of your children, this should be stated in your Will since a nonrelative would usually have no standing to seek guardianship of your children.
In addition, if you do not want your closest relative (such as your spouse, parent or child) to be in charge of your estate or if you think that your family may fight over who should be your Administrator, then you should make a Will even if it is just to name who you want to be in charge of your estate. When there is a Will, that person is called the Executor (male) or Executrix (female). When there is no Will, that person is called the Administrator (male) or Administratrix (female). A court battle over who should be the Administrator can be very costly and can easily be avoided by having a Will.
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What happens if I die without a Will?
It is a common misbelief that your assets will pass to the State of New York if you die without a Will. As long as you have at least one living relative as distant as a great-grandchild of your grandparant (a child of your 1st cousin), your assets will not go to the State. You might be surprised, however, by how New York State divides your assets if you die without a Will. The following is a breakdown which shows how your assets would be distributed if you died without a Will. It should be noted that this list is not comprehensive and does not cover all circumstances.
- Married with no children: Everything goes to the spouse.
- Married with children: The first $50,000.00 of the estate and one half of the remaining estate assets go to the surviving spouse. The rest of the assets go to the children.
- Not married with children: All to the children equally.
- Not married no children: The entire estate to living parents in equal shares. If no parents are living, to brothers and sisters in equal shares, if no brothers or sisters are living, to nieces or nephews in equal shares.
- New York State will look to give assets to relatives as distant as first cousins once removed before the money would pass to the State of New York.
If you have small children, imagine how your spouse will support your children if almost half of your assets are held in trust for your children! In most families, all of the assets will be needed by the surviving spouse in order to raise the kids. This must be done by a Will and/or by putting all assets in the name of both parents. Very often young couples who do not have enough assets to be concerned about Estate Taxes prefer to leave their entire estates to each other so that all money would be available to help raise the children. This can be accomplished in a number of ways, including your Will.
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What do I need in order to make a Will?
In order to make a Will,
- You must be at least eighteen (18) years old.
- You must have a general understanding of your estate. You do not need to know all of your account numbers or amounts. You just need a general idea of the value of your overall assets and some idea of what type of assets you have. (This is part of what is meant by "being of sound mind.") This is also important for knowing whether your estate is at a level where estate planning should be considered.
- You must know who the "natural objects of your bounty" are. Generally, this means that you need to know who your spouse, children, parents, brothers, sisters and possibly even grandparents, nieces and nephews and cousins are. This does not mean that any of them have to be included in your Will, just that you know who they are. (This is the other part of what is meant by "being of sound mind.")
- You will need at least two (2) witnesses (preferably 3) who witness you signing your Will and who sign as witnesses.
- it is a good idea to have the witnesses sign an Affidavit which is attached to your Will. Although this is not required, it can make probate (filing and proving your Will) easier, quicker and cheaper.
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Who should I include in my Will?
You can leave your assets to anyone you want. You do not have to include anyone, including your spouse, in your Will. If you choose to cut your spouse out of your Will, you spouse still has an absolute right to elect to take one third (1/3) of your total estate, including accounts which are not solely in your own name. The only exception to this rule is life insurance benefits which will not be counted towards your total estate.
Once a couple is divorced, the spouses no longer have any claim on the estate of the other. It's very common that a couple separate for a long period of time without ever filing for a divorce. As time goes on, it seems harder to bring up the topic of divorce and rarely does anyone figure that their spouse could make a claim against their estate after being separated for so long. If you are in the process of being divorced or have been separated without a divorce, consider having both you and your spouse sign and file a simple separation agreement waiving any right to the estate of the other. Such an agreement must be signed in front of a notary.
We have not included language to cut someone out of your Will in the simple Will form. By simply not mentioning someone in your Will, they will be cut out of the Will. For example, by leaving your assets to "my daughter Maria Jones and my son James Jones" you would be cutting out your other son John Jones simply by not including him. It is, however, better to use specific language to cut someone out of your Will. The language should be specific and direct and designed not to embarrass or hurt that person.
If you do not want to include someone in your Will because you think that they will just blow the money or assets, or that it would cause them to lose Medicaid or Medicare benefits, consider setting up a trust for that person's share as part of your Will or even in a trust set up before your death. A trust can protect assets from creditors, as well as Medicaid or Medicare claims. It is also better then just leaving one person's share to another relative and asking that relative to take care of them. This situation will often result in hurt and angry feelings and bickering among the family.
The following are the among the most common relations that people ask about:
- Common-law spouse: New York does not recognize Common-law marriage unless the couple was married by common law in another state or territory. Living together as husband and wife in New York, therefore, does not make a man and a woman husband and wife even if they refer to themselves as such. Several states and Puerto Rico, for example, do recognize common-law marriage and each has its own set of standards for deeming a common law marriage valid. If there is a valid common-law marriage in another state, New York will consider the marriage valid. Proving a common-law marriage, however, can be time consuming and costly. It would be difficult to do without the aid of an attorney. If you have a common-law spouse it would be a good idea to include that person in the Will by name so that they would receive under the estate the same as if they were your legal spouse.
- Step children: Step children for purposes of the Will are not your children. Unless you specifically include them by name or by definition (saying I intend to include my step children as children) they will not receive anything under your Will. The best practice is to include them by name and identify them as "stepdaughter" or "stepson" if you wish them to be included. Simply saying "my children" will not include them in your Will. If you don't want them included, it would be a good idea to specifically state my children, not to include my step children" in order to avoid the step children from bringing a costly contest against the Will.
- Adopted children: Unlike step children, legally adopted children are considered your children for all purposes. If you refer in your Will to "my children" that will automatically include adopted children with no distinction made between biological and adopted children.
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Can I just write out a Will by hand?
A handwritten Will (called a Holographic Will) is generally not allowed in New York. There are 2 exceptions to this rule:
- A handwritten Will which is valid in the State (other than NY) where it is made, will be considered valid in New York. Because proving (probating) a handwritten Will can be more difficult and costly, it is best to do a formal Will.
- In very limited circumstances a member of the armed forces who is serving in a combat zone can make a handrwitten will. The same is true for his/her spouse who is with him/her in the combat zone. Such Wills are only valid for up to 1 year after leaving the combat zone. Any handwritten Will done by a serviceman or woman should be done with the assistance of the JAG corps office.
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Will my property go to the State if I don't have a Will?
It is very rare that a person's property would every go to the State even without a Will. In order for that to happen, you would have to have no blood relatives as distant as the children of your first cousins (1st cousin once removed). In other words, you would have to have no living spouse, children, grandchildren through great-great-great-great-grandchildren, parents, brothers, sisters, grandparents, aunts, uncles, neices, nephews, great-neices/nephews, great-great-neices/nephews, 1st cousins or children of your 1st cousins. Whew!
The bigger problem can be tracking down all of these relatives in a situation where you are single/widowed with no living children/grandchildren. If it would be difficult to track down distant relatives, or if you would rather leave your estate to friends or charities, making a Will can save your estate the cost of having to track down these relatives.
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I did my Will in another State, do I have to do a new one now that I've moved to New York?
The law of Wills & Estates is different in each state but a Will which is valid in the state in which it was made will be valid in New York. By the same token, a valid Will made in New York, will be valid in any other State. The tax laws differ in each state as well. If you are concerned about the tax consequences to your Will by moving to New York from another state then you should consult with either an estate lawyer or tax consultant.
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How should I keep my Will?
It is a good idea to let at least one of the people mentioned in your Will know that you have a Will and where it is. Your Will should always be kept in a safe place. These are the most common places to keep a Will:
- A safety deposit box in a Bank. After you die, any safety deposit box in your name (even if it has someone else's name as well) will be sealed by the bank. It can take some time to arrange to have the box opened and it will often require the help of an attorney.
- Your Attorney's office. If you want your family to have the attorney who drafted the Will represent them in probating the Will, then it is fine to leave the original Will with your lawyer. If your lawyer moves, goes out of business or dies, he/she will make arrangements for your original Will to be available to your family. If you do leave your original Will with the lawyer, you can always ask that it be returned to you and your family is under no obligation to use that lawyer to probate your Will.
- A safe or fireproof box in your home. This is often the best option, not to keep out theives but to keep the Will safe in the event of a fire.
- With one of your relatives such as an adult child. This is also a top option, but it should still be kept in a fireproof box.
- Only sign one original Will. When it comes time to probate your Will, all originals must be provided to the court. If you signed more than one original and they can't all be found, the court may believe that you cancelled (revoked) your Will.
- NEVER remove the staples holding your Will together or take the Will apart for any reason. The first thing the court will look at is whether there are signs that the Will was taken apart (such as multiple staple marks). This could make the court think that the Will was altered. At the very least, the court will require the witnesses to appear and give testimony about the Will. The witnesses may no longer be available and if they are their memory of your Will may not be enough to convince the court that the Will was not altered.
- To cancel (revoke) your Will, all you have to do is rip it up. Better still would be to write the word "Revoked" on each page, sign under the word "Revoked" and tear off your original signature on the last page. The best option is to make a new Will.
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Do I have to file my Will in Court?
No! Your Will does not have to be filed in court during your lifetime. You might want to file your Will in the Surrogate Court if you are afraid that no one will know that you have a Will. This, however, is fairly rare. If you are going to file your Will, take the original to the Clerk on the 3rd floor of the Surrogate Court located at 851 Grand Concourse (at the corner of 161st Street), Bronx, New York, 10453. Surrogate Clerks are Very Helpful. They will help you to file the Will.
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