The New York Probate Lawyer Blog has discussed in numerous posts the benefits of estate planning and preparing planning documents. These papers include a Last Will and Testament. When preparing a Will the creator should express his intentions to his New York estate lawyer so that the document reflects his desires. There are many types of provisions that can be found in a Will. Clauses that deal with the disposition of assets are among the most important. The Will language should also unambiguously identify the persons who are to receive estate assets.
The names of beneficiaries should be correct both in spelling and an identification of relationship to the testator such as “my wife” or “my cousin”. Any mistakes regarding even this simple statement can lead to estate litigation regarding the testator’s intended meaning and possibly even a contested Will.Also, provisions regarding trusts and contingent beneficiaries need to be specifically spelled out. For example, a Will might provide that the testator bequeaths “$10,000 to my son, John Doe, if he survives me, or if he fails to survive me, to my daughter, Mary Roe.” When contingencies are ambiguous or sometimes not provided for, Surrogate’s Court litigation can severely delay estate settlement.
In a recent case entitled Estate of Pinto, decided on November 6, 2014, Staten Island Surrogate Robert Gigante was presented with an issue regarding a Will construction. Surrogate’s Court Procedure Act (SCPA) 1420 provides the guidelines for presenting a Will to the Court in order to obtain a construction or interpretation of ambiguous provisions. In Pinto the issue presented was whether the language of the residuary clause in the decedent’s Will provided for all his assets to pass to his surviving spouse. By using the term “except that” within the provisions of the residuary, a question was raised as to whether such language required that proceeds from a personal injury litigation be paid to the decedent’s children and g-dson rather than his wife. After applying various rules of construction, the Court found that the surviving spouse was the intended beneficiary of the decedent’s entire residuary estate including the personal injury benefits.
Pinto serves as a reminder that all advanced planning papers including a Last Will, Living Trust, Health Care Proxy, Living Will and Power of Attorney, need to be prepared and reviewed in order to eliminate any question as to the testator’s intent. One of the best methods to promote clarity is to utilize straight forward simple provisions. If more explanation is needed, additional clarification can be inserted so that all doubt as to the Will’s desired effect is eliminated.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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