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Five Common Types of Wills in New York

Posted on June 15, 2023

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It’s never too early to prepare a Will. Although death is not something most people want to think about, it might be prudent to prepare a plan in case of the unexpected. People with significant assets as well as those with fewer assets both need to plan how to take care of their loved ones in the event of their death.

Without a valid Will, your estate will go through the process of probate which can cause a bitter struggle between all those who have a claim or stake in your property. In this case, a judge may need to distribute your assets.  By making clear statements in your Will about how the financial portion of your estate will be divided, you can spare your family, friends, and business partners the time and money it will cost them to go through probate.

It is important to speak with an experienced Long Island estate planning attorney before you decide what kind of Will is right for your individual circumstances. At Schlessel Law, our team understands the intricacies of estate planning and is dedicated to assisting you throughout the entire process. Contact us at (516) 574-9630 to schedule a consultation.

Long Island wills lawyer

A Will is a common tool for estate planning. It allows testators (the person who writes a Will) to make a list of their last wishes and arrange their assets in a way that best suits them. Each type of Will has its own advantages and disadvantages. Whether you are in Nassau County or Suffolk County, a Long Island Wills lawyer may be able to help you choose the best option according to your needs. Here are 5 different types of Wills in New York: 

Different Types of Wills in New York

  1. Simple Will – A simple Will is the most common type of Will and is what people are familiar with. A simple Will allows you to decide who gets your assets, and who will be the guardian of any minor children. A simple Will can be fairly simple to make, however, it is still best to speak with an experienced lawyer to ensure that your Will is designed to serve you and your family. 
  2. Pour-over Will – Pour-over Wills are used when an estate plan contains a living trust. A pour-over Will is an alternative to a Will that includes a list of clauses that determine who gets what portion of your estate. A pour-over Will allows assets in your estate that were not transferred to the trust during your lifetime to automatically pass to your trust after your death. The trust terms allow the trustee to distribute property to trust beneficiaries.
  3. Reciprocal/Joint Wills – Reciprocal Wills are Wills made by two testators. These will mirror each other and they typically stipulate that one testator will leave his/her estate to the other spouse and vice versa. Although reciprocal Wills are often made by spouses and significant others, they can also be created by any person who needs to coordinate estate planning such as business partners. On the other hand, a Joint Will achieve the same goals as reciprocal Wills. The difference that they have is that a Joint Will is made by a single document which is made by two people, usually couples, and stipulates that the surviving spouse will inherit the estate in the event of the death of the other spouse.
  4. Holographic will – Holographic wills are the last Wills and testaments that have been handwritten by the testator. A holographic Will would typically not be probated by the Surrogate’s Court because it would prove difficult to verify its authenticity. However, there is an exception to the rule. A holographic will made during an armed conflict will be valid if it is signed by one of the military personnel, a civilian accompanying them, or a Maritimer at sea. 
  5. Nuncupative will – A nuncupative Will, which is similar to a holographic Will, is one that does not follow the formalities set by New York laws. Nuncupative Wills are oral Wills. This means that this type of Will is not written but spoken in the presence of at least two witnesses. A Will is required to be written under New York law in normal circumstances. Nuncupative Wills are usually not valid and would not be probated. However, if the Will was made by a member of the armed forces or a mariner at sea, it will be considered valid. 
Five Common Types of Wills in New York Description
Simple Will Most common type. Determines asset distribution and appoints guardian for minor children. Consult with a lawyer for guidance.
Pour-over Will Used with a living trust. Specifies asset distribution. Transfers unplaced assets to the trust after death. Trustee distributes property to beneficiaries according to trust terms.
Reciprocal/Joint Wills Made by two testators, often spouses. Mirror each other, leaving estates reciprocally. Also used for coordinated estate planning. Joint wills made by couples, designating inheritance for the surviving spouse.
Holographic Will Handwritten by the testator. Generally not probated due to verification difficulties. Exception: Valid during armed conflict if signed by military personnel, accompanying civilian, or mariner at sea.
Nuncupative Will Oral will lacking formal requirements. Not usually valid or probated. Exception: Valid if made by armed forces member or mariner at sea.

What are the Four Major Components of a Will?

Creating a will is an essential step in ensuring your wishes are carried out after your passing. This document outlines the distribution of your estate and addresses key components that must be included for it to be legally binding. In New York, wills must have four important requirements to ensure that it is legally binding:

Testator Information and Execution

As the testator, you play a crucial role in outlining your estate and expressing your wishes. When drafting your will, it is important to provide clear personal information, including your name, address, marital status, and dependents. To ensure the legal validity of your will, you must execute it properly, which involves signing it in the presence of several adult witnesses who are not beneficiaries. 

It is essential to keep in mind the following requirements for your will to be legally binding:

  • You must be at least 18 years old.
  • You should possess a sound mind and testamentary capacity, meaning you are mentally capable of understanding the implications and consequences of your decisions.
  • Your signature on the will must be voluntary and free from undue influence.

To ensure that your will is properly executed, consider getting the help of a knowledgeable estate planning attorney.

The Executor and Their Powers

When you pass away, the executor takes on the responsibility of managing your estate.This individual plays a crucial role in carrying out your will. Attorneys emphasize the appointment of an executor as a vital component of a will. The executor oversees the probate process and receives temporary custody of your assets from the court. Their main duty is to distribute your assets according to your wishes stated in the will. They also handle debt and tax payments, conduct an inventory of undisclosed assets, and ensure a smooth transition for your children or pets to their designated custodians. 

It is crucial to choose an executor you trust implicitly. Selecting other individuals as backup executors can also be beneficial in case the primary executor cannot or is unwilling to carry out their duty. Clearly outlining the powers granted to your personal representative also eliminates ambiguity and strengthens their legal authority in the probate court’s eyes.

Guardianship of Dependents

When you have dependents, it is essential to designate guardians clearly for their care. This includes their daily well-being and any life insurance proceeds or assets you plan to leave for their benefit. One person can fulfill both roles, or you can have a guardian for physical custody and care, while another takes on the responsibility of managing the property. Your dependents can include minor children, elderly parents, or family members with special needs living with you. It’s also important to specify guardians for any pets you own. Just like selecting executors, it’s wise to choose backup guardians in case your primary choice is unable to fulfill the responsibilities. It’s crucial to select financially stable individuals who share your parenting values.

Disposition of Assets

When considering the key components of a will, asset distribution is often the first thing that comes to mind. This includes financial holdings like bank accounts, real estate, vehicles, and personal possessions such as jewelry, artwork, and digital assets. It’s important to consider both monetary and sentimental value. Additionally, addressing outstanding debts is crucial. Your executor must settle debts before distributing assets, and providing clear instructions on debt handling is recommended. If you plan to leave assets to minor children, establishing a trust to manage the assets until they come of age is worth considering. Trust rules can allow funds to be allocated to legal guardians to help with expenses related to raising the children.

If you have questions about creating a will, it’s recommended to consult with a Long Island estate planning attorney. They can help you navigate the legal intricacies, protect your interests, and ensure that your wishes are accurately reflected in your will. Schedule a consultation with Schlessel Law today.

Consulting an Experienced Estate Planning Attorney

Although it can be difficult to consider the possibility of death or disability, it is essential that you have a plan in place for your protection and that of those close to you. Proper estate planning will ensure that you are in control of your assets and property. An estate plan will also change as you and your financial circumstances change. You should review each document regularly in order to ensure that it is still compatible with your objectives and conforms to the changing law.

Long Island estate planning lawyer Seth Schlessel and our team of attorneys at Schlessel Law PLLC understand the importance of a well-designed estate plan. Contact us today to schedule a consultation with our experienced attorneys in Nassau County or Suffolk County, Long Island.

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