A will, also known as a "last will and testament," is a document used to state formally who you want to receive your property and to name an "executor" to settle your estate after you die. Wills are especially important if you have young children, to state at what ages they should receive an inheritance and who will manage it for them in the meantime. You may also name a legal guardian for a child under eighteen years of age.
Basic Will Requirements
In order for a will to be valid, there are strict requirements surrounding its execution.
New York requires that the person making the will be at least 18 years of age. This is because New York law does not consider someone under the age of 18 to have the legal capacity to create a will or enter into contracts.
One of the most confusing requirements for making a will is the idea that the testator must be of sound mind. Sound mind does not mean that the person is completely clear headed. Generally, they will only need to know the purpose of the will they are making, and generally know the nature of their property. People who have mental disabilities may make a will if they meet those two requirements.
In New York, the will must be witnessed by two people. Those witnesses must either see the testator sign the will at the end, or see the testator acknowledge that the will is theirs. The witnesses must sign their names at the end of the will, and include their residential addresses, within one thirty day period.
Holographic wills are wills that are written by hand. In New York, they are only valid if they are made by members of the armed services during an armed conflict. The handwritten will must be entirely in the testator's handwriting.
[Estates, Powers & Trusts §3-1.1, et seq]
1. Without a will, your assets will be distributed according to New York state "intestacy" law. This law gives your property to your closest relatives, beginning with your spouse and children. Often clients are surprised to learn how different New York state law is from what they would have wanted. For example, if you have a spouse and children, assets would be divided between them, instead of to your spouse first, as most people would expect and want. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse's relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
2. Without a will, your choice of guardian of your minor children is unknown and will be decided by the court without your imput. Ordinarily the court defers to the parents’ nomination, but can decline to appoint that person if the person is not fit to serve as guardian. You have the ability to designate both a guardian of the person and a guardian of the property for your children. The person you wish to serve as guardian of the person will be responsible for their everyday care such as providing your children with food, shelter, clothing as well as making decisions about their education, medical care, and religious instruction. The person appointed as the property guardian will have the responsibility of the managing of the monies and/or property that is left to your children. You can designate the same person or people to serve in both capacities. You should also consider designating successor guardians for your children, in the event that the primary designee predeceases or cannot care for your children. Once a minor child reaches the age of fourteen, the court will grant them great deference and appoint a guardian based on what is in their best interest taking their preference into account.
If you die without a valid will, the State of New York, not your spouse, will distribute all property in your estate. In addition, your choice of guardian of your minor children will be unknown.
An attorney can help protect your right to distribute your property as you choose. They can explain your options and help you to create a will that achieves the results you want. And they can ensure that your will is valid and complies with the formalities required by law.