The Importance of a Will

The Will Defined

Before proceeding further, let's define the will. It is a legal declaration of a person's intention concerning what shall be done following the death, as to the disposition of the property and the administration of the estate. Three characteristics of a will set it apart from other forms of property transfer.

1. A will is revocable during life - you can change your mind.
2. A will is inoperative until death - it's provisions don't take effect until that time.
3. A will only applies to the situation that exists at death - as to the extent of your property holdings and beneficiaries.

There are well-defined legal requirements regarding wills that relate to such matters as the capacity to make a will, execution, restrictions upon the disposal of property by will, and revocation. These requirements, which are beyond the scope of this discussion, are a direct concern you should present to your lawyer.

The Importance of a Will

Do you have a will? If not, you've probably given some thought to it. You know it's a good idea to make a will, but one thing or another keeps coming up and you put off doing something about it. It's a subject you really don't feel like thinking about - somehow, executing a will seems to make "the day of reckoning" a little closer.

Unfortunately, many people do not execute wills for two reasons - procrastination and antipathy to thoughts of death. Another reason for dying in testate (without a will) is that most individuals don't have a clear idea as to the law. They realize that if they die without will, their assets will be distributed to their family. But what they don't understand is that the plan of distribution may not be in accordance with their wishes. In fact, it's a good bet that it won't be as they would have desired.

Steps in Preparing Your Will

A will that is to be successfully probated and made to meet your needs and wishes, must first be thought out carefully by you. Although you can prepare your own will, an attorney can help fulfill your intentions and guide you in making the best decisions. Be sure to discuss fees with the attorney so there is no misunderstanding at a later time.

Remember, your will can be changed at any time you wish, as your assets, intentions or desired beneficiaries may change. Your will is not made public while you are alive, since the will is not presented for probate nor recorded before your death. The existence of a will does not affect your right to dispose of your property during your lifetime.

Firstly, start by making a list of all your assets. It is important to list how each asset is owned - individually, jointly, in trust, etc. - since this will determine whether or not the disposition of the property will be governed by the will, or by operation of law. Joint property with right of survivorship, real property and motor vehicles in the name of husband and wife pass automatically to the survivor.

Secondly, examine the beneficiary designations in all life insurance policies, IRA, pension plans and similar documents. They will not become part of your estate and therefore, be sure you have not included their value to cover any expenses.

IMPORTANT:  If you name a minor as a beneficiary of an asset or in your will, the minor will require the appointment of a guardian on their behalf.  Normally, that money is then deposited in the Surrogate Court Intermingled Account and held until the minor reaches the age of 18 years.

Thirdly, select an executor to administer the will. It is the executor's duty to collect all the assets of the estate, determine what claims are being made against the estate, file the necessary tax returns and distribute the assets among the beneficiaries under the will. The executor may be a beneficiary under the will, a member of your family, your legal or financial advisor, a friend, a bank, trust department or business associate. It is also advisable to name a contingent executor to act in case your first selection dies before you, or, for any reason, is unable to serve as executor.

If the will is complex, you may need to appoint a trustee and/or guardian for some of the beneficiaries. A financial institution may be the right trustee to appoint in this situation to handle the many complex tax, accounting, investment and property management decisions.

Executing Your Will

To be effective, a will must be written, signed by the testator and witnessed by at least two people, or the signature and material provisions are in their handwriting. The latter is not recommended because these wills, referred to as holographic wills, cannot be probated in the Surrogate's Court but must be presented to the Superior Court.

Each witness must personally witness the signing of the will. Witnesses do not have to read the will or know it's contents. However, they must be told by the testator that it is his will, and that he wants them to be witnesses to its execution.

While the law permits a beneficiary to witness a will, it is recommended that a beneficiary-witness be used only when a disinterested party is not available. In this way, possible future challenges may be avoided.

IMPORTANT:  A will should have specific attestation wording and formatting, including two witnesses and a notary or attorney, to be considered "self-proven."  This relieves the witnesses from appearing in the Surrogate's Court to prove their signature at the time of probate.

Safeguarding Your Will

The will should be kept in a secure place such as safe deposit box or fire proof strong box. But more importantly, your executor should know where it can be found. It is a good idea to give a copy of the will to your executor with a notation where the original will can be located.

If it is kept in a safe deposit box it can be removed by the executor immediately following your death in the presence of an employee of the bank upon proof that you are the proposed executor named in the will.

Keeping Your Will up to Date

A will should be periodically reviewed and kept current. Keeping it current is just as important as making one in the first place. Certain changes in your life, such as marriage, birth of a child, purchase or sale of property, change in your financial status, or changes in various tax laws may warrant your making certain important revisions in your will. Also, laws change from state to state (and country to country) so the will should be updated to take the local laws into account.

How to Change Your Will

There are two ways to change your will: prepare a new one or prepare a codicil. If there are many changes to make, it may be less confusing to the executor to prepare a new will. If you have only minor additions or deletions, a codicil, executed in the same formality as a will, would be sufficient. Changing your will by drawing lines through items, erasing, writing over or adding notations is improper and may destroy it as a legal document.

Letter of Last Instruction

Few persons expect to die when they do, and therefore, relatively few leave their affairs in perfect order. Those who administer an estate and take care of what is left often find themselves without necessary information. To facilitate their job, it is advisable to give your personal representative or your attorney a letter of last instruction which is separate and apart from your will. This letter should contain the following:

1. Name and address of those to be notified at death and relationships of family members.
2. Instruction as to burial and funeral including any prepayments of funeral expenses.
3. Location of birth, baptismal and marriage certificates as well as social security card, citizenship papers, armed forces discharge papers and titles to automobiles.
4. Location of safe deposit box and where keys are kept.
5. List of insurance policies and where they can be found.
6. List of stocks, bonds, securities, savings accounts, credit union accounts, etc.
7. IMPORTANT:  Logins and passwords for online accounts, investments, etc. 
8. Statement of all real property owned by you with location of deeds, mortgages, abstracts and insurance policies for real property.
9. Location of income tax returns for previous five years.
10. Receipted bills and cancelled checks for previous five years.
11. List of any gifts made and information needed for estate tax.

After Death

When a person dies leaving assets in his name alone or in joint names with another person other than a spouse, it will be necessary to present the will to the Surrogate for probate. The will is presented to the Surrogate in the county wherein the decedent resided at the time of death.

The executor will need to present the original will, certified copy of death certificate and a list of names and addresses of the closest next of kin to the Surrogate. Papers are prepared by the court and signed by the executor. The legal review of the documents by the surrogate is the probate of the will. If all requirements are met, the will is admitted to probate and certificates are issued to the executor. These certificates allow the executor to execute documents formerly done by the decedent such as transfer automobiles, bank accounts, investment accounts, etc.

The original will is retained by the Surrogate and filed and recorded in the Surrogate's Court. The will becomes a public record and is listed in the general index.

If You Die Without a Will - Who Gets What

The intestate share of decedent's surviving spouse or domestic partner is:

1. The entire intestate estate if:
   1. No descendant or parent of the decedent survives the decedent; or
   2. All of the decedent's surviving descendants are also descendants of the surviving spouse or domestic partner and there is no other descendant of the surviving spouse or domestic partner who survives the decedent;
2. The first 25% of the intestate estate, but not less than $50,000 nor more than $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent
3. The first 25% of the intestate estate, but not less than $50,000 nor more than $200,000 plus one-half of the balance of the intestate estate:
   1. If all of the decedent's surviving descendants are also descendants of the surviving spouse or domestic partner and the surviving spouse or domestic partner has one or more surviving descendants who are not descendants of the decedent; or
   2. If one or more of the decedent's surviving descendants is not a descendant of the surviving spouse or domestic partner.

Any part of the intestate estate not passing to the decedent's surviving spouse or domestic partner or the entire intestate estate if there is no surviving spouse or domestic partner passes in the following order to the individuals designated below who survive the decedent:

1. To the decedent's descendants by representation;
2. If there are no surviving descendants, to the decedent's parents equally if both survive, or to the surviving parent;
3. If there is no surviving descendants or parent, to the descendants of the decedent's parents or either of them by representation;
4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents:
   1. Half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner, but if there is none the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
5. If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.
6. If there are no surviving descendants of grandparents, then the decedent's step-children or their descendants by representation.

• Administrator: (also known as Personal Representative) Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
• Beneficiary: Person named to receive property or benefits.
• Codicil: An addition or supplement made to change or add provisions to a will.
• Contingent beneficiary: Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
• Contract: Legal enforceable agreement.
• Decedent: A deceased person.
• Devise: To give (or a gift of) property.
• Estate: Everything a person owns.
• Executor: (also known as Personal Representative) A person or institution named in the will to carry out the provisions and directions of the will.
• Heirs: Those persons who are legally entitled to receive a decedent's property.
• Issue: Children, grandchildren, great grandchildren, etc. (lineal descendants)
• Intestate: A person who dies without making a valid will.
• Legatee: A person who receives personal property under a will.
• Levy: To collect by assessment.
• Lien: A charge upon property, real or personal, for the satisfaction of a debt.
• Personal property: Intangible property such as stocks, bonds, or bank accounts and tangible property such as furniture, automobiles and jewelry.
• Probate: Official proof of the genuineness of a will.
• Real property: Land and buildings.
• Surrogate: A judicial officer who has jurisdiction over the probate of wills.
• Tenants in common: Two or more persons owning individual interests in property.
• Testator: The person who makes a will.
• Trust: Property owned and managed by one person for the benefit of another person.
• Trustee: Person or institution holding property in trust.
• Waiver: A legal instrument relinquishing a right or lien.
• Will: A legal declaration of the manner in which a person wishes his estate divided after death.
• Witness: Person who observes the signing of a will and also attests to the signatures.