Making a Will

What is a Will and what does it do?

Top of page

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.

Top of page

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. If you want your estate to pass as detailed above, and do not want to name a Guardian or executor, then you are less in need of a Will. 

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.

Top of page

What do I need in order to make a Will?

In order to make a Will,

Top of page

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:
Top of page

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:
Top of page

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.

Top of page

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.

Top of page

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: There are also some precautions you should always take in the care of your Will:
Top of page

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.

Top of page