Wills FAQs

A Last Will and Testament is a legal document that is used to express the Testator’s (creator’s) wishes regarding how the Testator’s estate assets should be distributed upon the Testator’s death. Gifts made in a Will may be general or specific. An example of a general gift would be gifting “half of my estate to my sister Susan.” Gifting “my toy car collection to my nephew Michael” is an example of a specific bequest. Along with making gifts, a Will offers the parent of a minor child the only official opportunity available to nominate a Guardian for the minor child if one is ever needed. Your Will is also where you will appoint an Executor of your estate who will oversee the administration of your estate during the probate process.

The simple answer is “yes” – regardless of what age you are right now. Every adult, regardless of age, can benefit from executing a Will. You can always update your Will and add to your estate plan when you are older and have a family and/or a larger estate; however, you are never too young to have a basic Will in place.

Again, the simple answer is “yes.” The value of your estate does not determine the need for a Will. While your overall estate plan may grow as your estate grows, you do not need to own valuable assets to benefit from executing a Will. You undoubtedly care what happens to the assets you doown right now even if they are not extremely valuable. Likewise, you probably care who handles the probate of your estate and you certainly have an opinion regarding who should be appointed as your children’s guardian, if applicable. All of these are reasons to execute a Will even if you have yet to amass valuable assets.

Your first thought will likely be to appoint a spouse, friend, or family member as the Executor of your Will because you trust them to know what you would want and to have your best interests at heart. While that may be true, you should take the time to consider if that individual is really the best person for the job. The Executor of a Will has several important duties and responsibilities during the probate of an estate, many of which require legal and/or financial acumen. In addition, keep in mind that family and close loved ones will be grieving your loss and may not be in the best position to focus on the duties and responsibilities of administering your estate.

If you die without a valid Will in place, you leave behind an “intestate” estate. In that case, the State of New York decides how your estate assets are distributed using the New York intestate succession laws. Typically, this means that only close relatives will inherit from your estate. Close friends, a favorite niece or nephew, or a charity/church that is near to your heart won’t receive anything. Moreover, the state will decide how much of your estate is distributed to your heirs and you have no way of knowing who will oversee the probate of your estate.

People frequently make the mistake of thinking they can save time and money by using a “DIY” Will form they found on the internet. You are more likely to cost your beneficiaries unnecessary time and money when it comes time to probate your estate by using these forms. DIY Will forms are notorious for mistakes, errors, and omissions that lead to protracted litigation during the probate of an estate. That litigation delays the distribution of estate assets and diminishes the value of the estate because of the costs involved in litigation. Working with an experienced estate planning attorney is the best way to ensure that your Will functions as intended.

When your appointed Executor learns of your death, he/she should begin the probate of your estate as soon as possible. Your Executor will need an original copy (with an ink signature) of your Will along with a certified copy of your death certificate to file a petition to initiate probate with the appropriate court. The terms of your Will determine how assets are distributed at the end of the probate process.

When your Will is submitted for probate, any interested party has the right to contest the validity of the Will. Contrary to what many people believe, a Will cannot be contested simply because the contestant is unhappy with the inheritance left to them (or lack thereof). To be successful, a contestant must prove one of the legal grounds on which a Will can be declared invalid in New York. The Executor of the Will is responsible for defending the Will during the litigation. If the contestant is successful, the Will is declared invalid and the court will look for a previous, valid, Will to use to probate the estate. If an alternative Will does not exist, the state intestate succession laws will be used to distribute the estate. If the contestant is not successful, the Will is declared valid, and the probate of the estate continues using the terms of that Will to distribute assets.