The simple will is the estate planning document that everyone has heard about, but many people harbor misconception about wills. In this post, we will share four important pieces of information about these documents so you can go forward with a renewed understanding.
Obviously, you can use a will to state your wishes with regard to the way you want your assets to be distributed after your death. If you are the parent of a minor child, you can designate a guardian in a simple will.
In order for a will to be valid in New York, it must be signed by the testator in the presence of two witnesses. You have to declare that the document that you are signing is in fact your will, and they must affix their signatures to the will.
A will can be valid if it is not notarized, but as you will see the next section, there is a reason why notarization can be beneficial.
A Will Is Admitted to Probate
If you create a will, you would name an executor in the document to serve as the administrator. The executor would not be able to follow the instructions in the will and act independently.
Under the laws of the state of New York, the document would be admitted to probate, and the Surrogate’s Court would provide supervision.
We should point out the fact that there is a simplified probate process in our state. If the value of the estate is $50,000 or less excluding real estate, the executor can petition the court to allow for the simplified process.
When full probate is underway, there is a proving of the will, and the court will contact the witnesses to confirm their involvement in the signing. If the will has been notarized, this step would be skipped, and this is the benefit that we alluded to in the previous section.
Creditors are given time to come forward seeking satisfaction, and the executor will obtain a unique taxpayer identification number for the estate; this is called an Employer Identification Number.
Final debts are paid during probate, and the assets are identified and prepared for distribution to the heirs. When everything is in order to the court’s satisfaction, the assets will be distributed to the heirs in accordance with the wishes of the decedent.
A Will Can Be Challenged
Since the court is charged with the responsibility of determining the validity of the will, interested parties have the opportunity to present will contests during probate. One of the acceptable grounds is improper execution, so the witnessing requirements must be met.
Fraud is another ground for a contest. An example of fraud would be someone tricking a person into signing a will under false pretenses.
An additional ground for a will contest is incapacity. Many elders suffer from cognitive impairment, so this is a very real possibility in some instances. Undue coercion is the other ground for a will contest.
A Living Trust Is Usually a Better Choice
Unless your estate planning situation is extremely simple and straightforward, a living trust is usually going to be a better choice than a simple will. Probate serves a purpose, but it is not necessarily positive for the rightful heirs to an estate.
It will typically take about nine months to a year or more, and no inheritances are distributed while the estate is being probated by the court. Probate expenses reduce the value of your estate, and it is a public proceeding, so there is a loss of privacy.
If you use a living trust as your primary asset transfer vehicle, you would act as the trustee and maintain control of the assets while you are living. After your passing, the successor trustee that you designate would distribute assets to the beneficiaries outside of probate.
You can also include spendthrift protections if you have a living trust, and you can name a disability trustee to administer the trust in the event of your incapacity.
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We are here to help if you are ready to work with an attorney to put a custom crafted estate plan in place. You can send us a message to request a consultation appointment, and we can be reached by phone at 212-973-0100.
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