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Last Will and Testament: Answers to Five Frequently Asked Questions

by Vivienne Duncan, Esq. July 29, 2021

Vivienne Duncan is a director for the Cancer Advocacy and Elderlaw Projects.

The Last Will and Testament is a common estate-planning tool that allows you to document your choices and pass assets on to loved ones. This blog provides answers to five frequently asked questions about preparing a Will.

Can I prepare my own Will?

Although blank Will forms are available and may look “simple” to complete, it is important to seek legal advice rather than attempting to prepare a Will by yourself. Wills prepared without the help of an experienced attorney run the risk of having errors and confusing language or being incorrectly executed – which is the legal process that must be followed when a Will is signed and witnessed. An incorrectly prepared and/or executed Will can cause delays or make the Will invalid during the probate process (a legal process that takes place after a person dies). In addition, an experienced attorney can provide essential advice on estate planning options in general that you may not have considered.

What happens if I die without a Will?

If you die without a Will (called dying “intestate”), your property will be distributed according to New York State law, which may result in your estate being divided up in a way that would not have been your choice. If you die intestate, the court will appoint someone (called an “administrator”) to settle your estate and, after paying any taxes and outstanding bills, the remainder of your estate will be divided as follows:

If you are survived by:

  • Spouse and no children: Your spouse gets the entire estate;
  • Spouse and children: Spouse takes the first $50,000 plus half of what remains; your children divide the other half equally;
  • Children and no spouse: Children divide the estate equally.
  • No spouse and no children: estate goes to your next closest relatives: parents/siblings/nieces and nephews, etc.
  • No surviving relatives (including distant): your property is forfeited to the State

Can I disinherit a family member? What about my spouse?

You can disinherit a family member by mentioning them in your Will by name or class (parent, child, children, etc.) to make it clear that you did not simply forget to include them when deciding who to leave property to.

While you can disinherit most family members, it is important to note that, under New York law, you cannot disinherit your spouse simply by failing to mention them or stating that you wish to leave them nothing. Unless you are divorced or legally separated, your spouse has the right to claim a share of your estate, except under limited circumstances. In New York, a surviving spouse can elect to take a share of your property, which is $50,000 or 1/3 of your estate – whichever is greater.

What happens after I have prepared my Will?

After your Will is prepared, make sure to keep the original document in a safe place. While you can give a copy to your Executor(s), whose job it will be to distribute your estate according to your wishes, it is crucial for them to know where to find the original Will and to be able to get to it in the event of your death. To settle your estate, your Executor will need to have possession of the original Will quickly, so do not store it in a safe deposit box unless your Executor, or someone else, is a joint owner of the box with the right to continue accessing it after your death.

After you pass away, the probate process begins. Your Executor(s) will need to file your Will with the Surrogate’s Court, where it will be examined to establish that it is valid. After that, the Court will allow the Executor(s) to identify and appraise your property, pay any funeral expenses, outstanding taxes, and debts, and distribute your remaining property according to your Will.

Where can I get help to prepare a Will?

The City Bar Justice Center provides seniors with limited resources with free legal assistance to prepare Wills. In addition to your Will, Advance Directives are also important life planning documents that you may consider preparing. They enable you to authorize someone of your choice (your “agent”) to speak and act on your behalf regarding financial and medical decisions if you become unable to do so for yourself. If you would like to know more about advance directives, you can read our blog post “Planning Ahead – Helpful Tips for Seniors.” To see if you are eligible for free assistance to prepare your Will and/or Advance Directives, please call: 212-382-6658. If your income and assets make you ineligible for assistance through the project, please call the NYC Bar Legal Referral Service at 212-626-7373 for a consultation with a private attorney.

This informational resource does not constitute, or substitute for, legal advice.

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