The primary reason for creating a will is to state how you intend your assets to be distributed upon your death. If you die without a will, your assets will be distributed according to the law of the state in which you resided. For example, if a person is married, has two children and dies without a will, under the law of New York State, the spouse will get the first $50,000 and one-half of the remaining amount of the estate owned by the person who died. Each child will get one-quarter of the estate. The person’s estate includes only property that the person owned alone. Ownership of property that is jointly owned with another person, such as the marital home, will pass to the surviving owner without having to probate the deceased’s will.
When a person dies without a will, the legal term is to die intestate. The laws that state how assets are distributed under such circumstances are called intestacy laws. To learn more about New York’s intestacy law click here:
If you die with a will, you are known as the testator. The property that you have, which includes your real estate, money and all other types of assets, is referred to as your estate. The persons or organizations to whom you leave your estate are known as your beneficiaries. The person that you name to administer your estate is called your executor if a male or executrix if a female. When the executor or executrix takes your will to court, which is the Surrogate Court in New York, he or she is probating the will. The court will supervise the probate of the will. If you create a trust in your will, the person whom you name to handle the assets of the trust is known as the trustee.
In addition to stating how you want your estate to be distributed, there are other important reasons to have a will. For example, in your will you can state your preference for the person to be named the legal guardian of your children if they are minors when you die and you are not survived by your spouse. If you have young children, any of your children is incompetent, or you wish to provide for your pet, you can create a trust in your will. By creating the trust, you can set money or other assets aside for the person or pet for whom you wish to provide and name a person to handle and distribute the money or assets.
To create a will, you must be at least 18 years old and competent, which means that you need to understand what you are doing. You also must create and sign the will under your own free will, which means that you are not being pressured to sign the will by another person. The will must be in writing and be signed or, in legal terminology, executed according to exacting requirements. A failure to follow these requirements will cause the will to be invalid.
Although only two witnesses are required, it is best to have three witnesses. In addition, it is best to have what is called a self-proving affidavit attached to the will, so that it will be much less likely that the witnesses will be required when the will is offered to probate.
Lastly, there should be only one original, executed will, in which all pages must be stapled together. If the staples are removed, the will is torn, or changes are made to it, the will likely will be invalidated.
Our fee to create a typical will is $600. For $750 we will prepare for you all of the documents that you likely need, that is a will, living will, health care proxy and disposition of remains*. Our fee to prepare a power of attorney is $400. If the power of attorney is done along with the will, living will, health care proxy and disposition of remains, the total cost would be $1,000. * A disposition of remains states who you have authorized to handle your remains. This is required by the funeral home.
If you would like more information on having a will prepared for yourself, call us at (718) 625-0800 to schedule a free consultation.