You have worked hard to accumulate the money and property that you have. Therefore, you should determine who should represent your estate and to whom your property should be given. Without proper planning, 50% or more of your money may have to be given to the Federal and State governments for taxes. With careful planning, we can minimize your estate tax burden.
A Will simply says that you want your property to go to (beneficiary), you want your minor children to be taken care of by (guardian), you want the (trustee) to take care of your minor/disabled child's money and investments, you want (executor) to carry out the directions you have written in your Will. These are the most important terms of the Will. Of course, based on your particular facts and circumstances, additional information might be required.
Don't let the thought of drafting a Will overwhelm you.
 | Probate |
| Intestacy |
| Definitions |
Considerations before visiting an attorney:
Why go to an attorney rather than use a form? It is not the paper that you are paying for, but the expertise and advice. We can ensure that your Will actually reflects your will. There are numerous intricate laws, concerning the drafting of a Will, including laws which control what your spouse has a right to get, and formalities which must be followed when signing the Will. If these rules aren't followed, the Court can invalidate your Will, and appoint strangers to oversee your estate.
Some topics to think about:
- What property do I have? The more detail you provide an attorney, the more we can assist and advise you. Don't let the idea of gathering information overwhelm you. You can provide general amounts and details of the assets and debts that you have.
- To whom do I want to give my property?
- Who should be my executor? The executor should be someone who has a "business head", who can file tax returns, make wise investment decisions and has no personal stake in the outcome of the Will. You should also have in mind a substitute executor, in the event your executor is unable to fulfill his obligations.
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In the event you have minor or handicapped children:
a. Who should be my guardian? Considerations:
(i) What would be the least disruptive for the kids.
(ii) Do the guardians live in the neighborhood so that my children can continue in their current schools and with their friends?
(iii) Do the guardians have the same faith?
(iv) Do the guardians share the same values?
b. Who should be my trustee? The trustee should be someone who has a "business head", who can file tax returns, make wise investment decisions and has no personal stake in the outcome of the trust. You should also have in mind a substitute trustee, in the event your trustee is unable to fulfill his obligations.
c. At what age, or under what circumstances, do you want your beneficiaries to get the money outright?
Share your thoughts, feelings and hesitations with the attorney. If you don't trust one beneficiary or if you trust one child/beneficiary over the other, or if you feel that one beneficiary would cause problems after your death, discuss it with your attorney. There are ways to overcome such problems.
Bring with you copies of prior Wills and other estate documents.
Probate is the process after the Testator dies, by which the Will is filed with the court, is verified that it is the true Will of the Testator, and the process by which the Executor/Executrix is appointed representative of the estate. The Will is filed with a petition which provides pertinent information to the Court regarding the Testator.
Some other documents you might need are the Testator's certified death certificate (with a raised seal), a copy of the death certificate of the spouse, if one dies before the other, or a copy of the divorce decree, if divorced. Different courts have different requirements.
After the Court is certain that the Will is a true copy of the Testator's wishes, the Court will issue Letters Testamentary. It is with these Letters Testamentary that you will go to banks and other financial institutions to receive money from the Testator's accounts. You will also need this document to transfer title to all the Testator's property, including home and car.
***Please note that it will be easier for you if you order many certified copies of the death certificate from the Funeral home and Letters Testamentary from the Court.
When a person dies without a Will, he is considered to have died Intestate. This means that an Administrator/Administratrix will have to be appointed legal representative of the estate.
Under New York State Law (SCPA §1001), Letters will be granted in the following order:
- The surviving spouse;
- The children;
- The grandchildren;
- The father or mother;
- The brothers or sisters and so on.
There are, of course, exceptions to the rule and other circumstances which might cause a different result.
The property would be given to the following people (EPTL §4-1.1):
If the testator is survived by:
- A spouse and children: $50,000 and one-half of the estate, after the debts are paid, to the spouse, with the balance going to the children;
- A spouse and no children: everything to the spouse;
- Children and no spouse: everything to the children;
- One or both parents, and no spouse or children: everything to the surviving parent(s) and so on.
Once again, there are, of course, exceptions to the rule and other circumstances which might cause a different result.
Considerations before visiting your attorney:
| Bring the Will, if any, and any copies of the Will or old Wills. |
| Bring legal names and addresses of the decedent's mother, father, brothers, spouse and children. |
| Bring certified death certificates. |
| Bring statements from financial institutions in which decedent owned accounts either separately or jointly. |
| Bring a copy of the deeds in which decedent owned property. |
| Bring a copy of the life insurance policies on decedent's life. |
| Bring a copy of documents relating to retirement and pension accounts. |
| Last Will and Testament or Will: A document by which goes into a effect when the Testator dies. In it, the Testator disposes of all his property. |
| Living Will: In states which provide for Living Wills, a person can create a document which sets forth in detail what health and medical procedures he wants performed, in the event he becomes incapacitated or unable to state what his wishes are at the time. |
| Testator/Testatrix: The person who creates the Will. |
| Executor/Executrix The person who is appointed to represent the estate, follow the terms set forth in the Will, files tax returns for the estate and collects the property of the estate for distribution to the beneficiaries. |
| Beneficiary/Beneficiaries: Those people who are given money or property in, or who otherwise benefit from the Will. |
| Intestate: A person who dies without a Will. |
| Guardian: The person who has physical custody of minor or handicapped children. |
| Trustee: The person who holds money and property for the benefit of another person, a minor child or incompetent person. |
| Probate: It is the process, after the Testator dies, by which the Will is filed with the court, is verified that it is the true Will of the Testator, and by which the Executor/Executrix is appointed representative of the estate. |
| Letters Testamentary: The document issued by the Court, which certifies that the Executor/Executrix has been appointed and may act as legal representative of the estate. |
| Administrator/Administratrix: When there is no Will, the Court will appoint an administrator/administratrix to act as legal representative of the estate. |
| Letters of Administration: Similar to Letters Testamentary, it is the document issued by the Court, which certifies that the Administrator has been appointed and may act as legal representative of the estate. |