Clients often do not understand the importance of a will and of involving an attorney in the planning and execution process.
The first step is to meet with an attorney and ascertain what comprises one’s estate and to identify who the Testator’s desired beneficiaries are. Estate and gift tax issues become part of the equation and, as such, part of the planning process is to determine what assets comprise the taxable estate.
After analyzing the assets, a decision and plan to restructure one’s holdings may be necessary.
The following are some considerations when thinking about having a new will drafted.
Different provisions in a will apply to different scenarios. A will for a husband in a second marriage who wishes to provide for children from his first marriage will likely be different than a will for someone who has only been married once.
Clients who wish to make changes to their old wills often ask if they can use a codicil rather than executing a new will. A codicil is a separate document amending a previously executed will that must also be proved to the court.
Normally, when a will is probated, only the distributees have a right to object to a will. Distributees are those people who would receive a share of the inheritance pursuant to state law. However, beneficiaries left out of a prior will because of a codicil have the right to object to that document, thereby complicating the situation.
Clients often ponder whether or not a Last Will and Testament is even necessary. If an individual dies without a will, the estate is distributed pursuant to the “intestacy” statute (Estates Powers and Trusts Law Section 4-1.1). For example, without a will, if the decedent is survived by a spouse, $50,000 plus one-half of the estate passes to the spouse and the balance is distributed to the children. Such distribution could be financially detrimental to the surviving spouse.
Other issues that arise and must be addressed include how to apportion the payment of estate taxes; whether to include a clause that precludes a beneficiary from inheriting if he/she contests the will (“in terrorem clause”); and whether to provide a trust for minors, among many other considerations.
Having the preparation and signing of a will supervised by a competent trust and estates attorney ensures that all formalities were properly followed. Those formalities, pursuant to the Estates Powers and Trusts Law Section 3-2.1, include signing in the presence of two witnesses (who are not beneficiaries of the will); the testator declaring to the witnesses that the instrument is his/her will and expresses his/her intent; and the witnesses signing within 30 days of execution. Having the witnesses sign a “self proving affidavit” can help as evidence in support of the will should a contest arise and also prevents the need to track down the witnesses at the time of the testator’s death.
Finally, clients often keep wills in safe deposit boxes that are sealed upon death. The best storage is the attorney’s vault. Should the Testator choose to keep the original will and the family is unable to locate it upon the Testator’s death, it is presumed that the will was revoked.
Ronald Fatoullah & Associates is highly recognized throughout the New York area for their expertise and outstanding services in the areas of elder law and estate planning. Ronald Fatoullah is proud to have been selected as one of New York Magazine’s “Best Lawyers” for three consecutive years in the fields of elder law, trusts & estates, and he is the legal advisor to this magazine. This article was written with the assistance of Stacy Meshnick, Esq., senior staff attorney and Medicaid supervisor at the firm. To reach Ronald Fatoullah & Associates please call: 718-261-1700 or 1-877-Elder Law
