As we discussed in our previous blog regarding estate planning, it is never too early to start preparing for any unforeseen event, such as your departure from this earth or the unfortunate event you become incapacitated. A Will is the instrument to be used in order to record your Last Will and Testament, your last wishes and desires regarding how your property should be distributed or disposed of upon your death. You may also indicate in your Will who shall take care of your children and become their guardian.
As a general rule, you do not need an attorney to write a Will on your behalf. However, it is strongly advised to seek guidance from an attorney since Wills must meet certain formalities in order to be legally binding and enforceable. Such requirements may vary from one jurisdiction/state to another (e.g., in New York State you must be at least eighteen (18) years old and of sound mind and memory – in other words, you need to have testamentary capacity). Also, if you own real property in several states across the United States, not only in New York State, and you divide your time between several states across the country, you should know that residency requirements are taken into account as well. In the event you pass away without a Will, you will die intestate and the laws of the state where you were domiciled shall govern your estate, which may not be aligned with your last wishes.
As a testator, you have a few options when creating your Last Will and Testament. Below, we discuss a few types of Wills and under which circumstances they are often used.
As a general rule, a Simple Will contains the name of the testator indicating their testamentary capacity, the beneficiaries and how the testator’s property should be distributed among them, the name of the executor (which is the individual who will be responsible for distributing the testator’s assets) and signatures of the testator and all applicable witnesses.
A Holographic Will is a handwritten Will. As a general rule, Holographic Wills are not usually recognized in New York State, unless the testator created such Will during an armed conflict and was an active member of the armed forces.
However, Holographic Wills may be valid in other jurisdictions, so long as the specific formalities were followed accordingly.
A Nuncupative Will is a rare type of Will and may be valid under very limited circumstances such as wartime. These types of Wills are in oral form due to the limited availability to record the testator’s wishes in writing.
As part of your Last Will and Testament, you may create a testamentary trust for the benefit of family members, friend, charities and even pets. Testamentary trusts only become effective when you pass away and are usually part of your Will.
In short, a Living Will allows you to make certain decisions regarding your end-of-life and health care wishes in the event you become incapacitated. New York State may recognize Living Wills as long as they include “clear and convincing evidence” of a person’s wishes. In any case, you should always have a Health Care Proxy in place just to be sure your health care wishes are carried as you determine or a Power of Attorney to permit someone to handle your personal and financial affairs in the event of diminished mental capacity.
Please note that this blog should be read for informational purposes only. If you have any questions or require additional information, please contact our office.
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