Articles Posted in Last Will

The execution of a New York Will must comply with the requirements of the estate statutes. It is important to follow these rules so that the Will be validated and admitted to probate. There have been numerous posts in the New York Probate Lawyer Blog explaining the need for the proper execution of Wills. The basic estate law dealing with this matter is Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements”.

This statute sets forth a number of requirements including: (i) that a Will be signed at the end of the document: (ii) that there be at least two witnesses; (iii) that the testator sign the Will in the presence of the witnesses; and (iv) that the testator declare to the witnesses that he is signing his Will. Continue reading

The preparation and execution of a Last Will in New York requires careful attention to detail. When a Will is being formulated a New York Estate lawyer typically obtains information from a testator regarding assets and intentions concerning beneficiaries.

Since the purpose of estate planning is to insure that a person’s assets are disposed of properly, it stands to reason that a significant amount of time and effort be devoted to examining these issues. For example, the New York Probate Lawyer Blog has published numerous articles that point out that a Last Will typically only controls assets that are held by a decedent in his name alone. Assets that pass by operation of law, such as jointly owned assets or those that have designated beneficiaries such as life insurance or retirement accounts, are not controlled by Will provisions. Therefore, it is important for a testator and for an estate lawyer to understand the nature of the asset ownership so that the plan and the Will dispose of the estate according to a testator’s wishes. Continue reading

Preparing an estate plan is important. When a person dies without a Will, he has forfeited his opportunity to create a plan that actually reflects his intentions. The New York Probate Lawyer Blog has published many articles talking about intestate estates (where there is no Will). In these situations Estates, Powers and Trusts Law (EPTL) Section 4-1.1, entitled “Descent and distribution of a decedent’s estate”, controls the designation of the persons who inherit the estate.

You need to prepare an estate plan. This plan can include a Last Will and Living Trust. However, it is equally important that extreme care and attention be given to the preparation and execution of these documents. An attorney, such as a Manhattan estate attorney or Brooklyn estate attorney, can assist you with the details and provisions that you provide in the documents. If the terms and language in the Will are confusing or not effective, your intentions will not be carried out. Continue reading

Wills in New York are required to be executed in accordance with the statutory guidelines. Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, sets forth very definite rules for Will authenticity. For example, a Will generally needs to be in writing and signed by the testator at the end of the document. There also must be two witnesses to the execution. The New York Probate Lawyer Blog has published many articles discussing the rules and other issues concerning the making and signing of Wills.

The Surrogate’s Court strictly adheres to the rules regarding Will execution. The Court wants to follow the statutory directions and be certain that the Will that is probated is authentic.  There are times when the original of a decedent’s Will cannot be located. This situation was discussed in a recent case decided by Manhattan Surrogate Nora Anderson on December 1, 2017 entitled Matter of Raleigh. In Raleigh the decedent signed his Will in an attorneys office in New Jersey. The original Will was then mailed to the attorney’s office in New York where the attorney put the Will in the client’s file and stored it with a storage company.  Continue reading

Estate planning in New York involves the preparation of a number of documents including a Last Will and Testament. It is not unusual that during the course of a lifetime a person prepares and executes a series of Wills.

It is a common practice that a Will should be updated periodically. There are many reasons for such updates. It may be that early versions of a Will contain trust and guardianship provisions for a person’s minor children. Once the children have grown older there would no need for these provisions. In this regard, a person’s testamentary plan and intentions may change over time. A testator can change the dispositive provision of his Will as many times as desired. Sometimes the individuals named as beneficiaries may predecease the testator or need to be eliminated due to personal preferences. Continue reading

Estate planning is an important part of overall financial management. The preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust can provide a clear expression of a person’s desires regarding property disposition and personal affairs.

Once a Last Will and other documents are prepared and executed, it is important to safeguard them. Such papers can be maintained in a secure filing cabinet or personal safe. Sometimes these papers are held in the office of an attorney or placed into a safe-deposit box. While a safe deposit box may limit or inhibit their accessibility in situations of death or disability, the papers are secure. Nevertheless, alternative methods of storing estate planning papers may be more efficient for having them accessible when needed. Continue reading

Estate Litigation in the Surrogate’s Court often involves issues that effect many decedent’s estates. These problems occur over and over again. One such problem area concerns the attempt to probate a Will where the original document cannot be located.

When a person signs a Last Will great consideration and care should be given to storing the Will in a safe location. Sometimes the Will is maintained at the office of the estate attorney who prepared the Will and supervised its execution. More often, the testator takes the Will home and keeps it with other papers. On occasion, a Will is kept in a safe deposit box at a bank. Problems arise when a person dies and the original Will cannot be located. While a copy of the Will may be available, there are strict rules regarding the probate of a copy. The New York Probate Lawyer Blog has discussed this issue in earlier posts. Continue reading

The preparation and signing of Wills in New York is an important part of the estate planning process. Creating documents such as a Last Will, Living Will, Health Care Proxy and Living Trust is an important first step in expressing a persons intentions for property disposition and personal care management.

As part of the process of implementing these important documents, it is essential to obtain proper guidance and supervision regarding the preparation and execution of such papers.  The New York Probate Lawyer Blog has posted many articles describing cases where Wills have been the subject of Will Contests, especially where questions arise as to the manner in which the Will signing took place.  Also, there are many instances where Estate Litigation has occurred due to provisions or clauses in Trusts or Wills that are confusing or ambiguous.  Obviously, seeking the assistance of an Estate Lawyer to help with the drafting and preparation of planning papers can diminish the possibility of a lawsuit by a disgruntled relative who has been disinherited.  Also, following the statutory mandates for Will execution  insures that the intentions of a testator can be fulfilled and that a validly prepared Will can be admitted to probate. Continue reading

The New York Estates, Powers and Trusts Law (“EPTL”) along with the Surrogate’s Court Procedure Act (“SCPA”) contain the statutory rules and procedures regarding decedent’s estates. EPTL Section 3-2.1 entitled “Execution and Attestation of Wills; formal requirements” has been discussed in previous blog posts. This section sets forth the rules that control the valid signing of a Last Will. The section provides, for example, that the Will must be signed at the end of the document by the testator. It also states that anything that is placed on the document following the signature as well as any matter that is added to the Will preceding the signature but after the Will is signed, shall be invalid.

New York estate lawyers are familiar with the proper preparation and execution of Wills in order to comply with statutory rules. However, there are occasions when documents appear to lack compliance with the statute and require review by the Surrogate’s Court. In Estate of Thomas a Will was filed for probate that contained numerous handwritten alterations to bequests set forth in the paper. In a decision dated January 7, 2014 and reported in the New York Law Journal, Bronx Surrogate Nelida Malave-Gonzalez reviewed the document and the evidence presented to the Court. The evidence included an affidavit from the attorney who prepared the Will which stated that when the Will was signed it did not contain the handwritten changes that were later found on the document. Based upon his proof and other information, the Surrogate found that the handwritten changes did not comply with the requirements of EPTL 3-2.1 and thus were not valid. The Will was admitted to probate and the alterations were ignored and did not change the original provisions of the Will.

In the event an individual wants to change or amend their Will there are two ways to proceed. A Codicil can be prepared which only revises the provisions that are sought to be amended. Instead of a Codicil, the entire Will can be redone in which the only change is the desired modification. Both the Codicil and the new Will need to be executed in accordance with the statutory requirements. The preferred method is to revise and sign a new Will. This tends to eliminate both any confusion and the need to keep track of a number of separately signed papers.

It is always important to have a Will and other documents such as a Health Care Proxy, Power of Attorney and Living Will properly executed. Additionally, in the event a creator wants to amend or change any of the provisions in these papers, it is equally important to do so in a manner that is proper so that the changes can become effective. All testamentary and advance directive papers should be prepared and signed correctly to avoid estate litigation such as Will Contests and to allow easy estate settlement.

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The New York Probate Lawyer Blog has had numerous posts regarding the benefits of estate planning. When a person dies without a Last Will his estate is subject to the laws of intestacy and is distributed to distributees or heirs at law according to statutory priority. When an estate is planned by the drafting and execution of a Last Will, Living Will, Health Care Proxy and Power of Attorney, a person has the opportunity to specifically designate the individuals that he intends to benefit from his estate and who will make decisions regarding his affairs.

In the case of a Will, it is essential to clearly name and identify the intended beneficiaries such as “my son, John Smith” or “my friend, Mary Jones.” It is equally important that a Will and other documents specify contingent beneficiaries and alternative fiduciaries. Since a Will may be signed many years, even decades, before a person dies, these alternative provisions are likely to become the effective directions at the time of death. Therefore, the naming of substitute beneficiaries should not just be an afterthought but must be fully considered and carefully drafted as part of the Will Planning process. Failure to do so may disrupt estate settlement and result in the failure of the testator’s desires being expressed and complied with.

A recent example of the problems caused by not properly providing for contingencies in a Will is demonstrated in the case of Estate of Beatrice Thompson. In a decision dated December 23, 2013 and reported in the New York Law Journal, Richmond County Surrogate Robert Gigante was presented with motions for summary judgment in a construction proceeding. These types of proceedings are commenced when the Court’s assistance is needed to determine the meaning or effect of unclear or ambiguous terms in a Will. It appears that the decedent wife had written a Will that left her entire estate to her husband. However, the husband pre-deceased the decedent and the Will failed to provide for a disposition of the estate in the event of the husband’s death. The Court denied the motions since it found that questions of fact existed regarding the decedent’s disposition of the estate residue in view of the lack of any specific language disposing of the estate property.

Thompson is a good demonstration of the need for New York Will lawyers to assist their clients and provide documents that explicitly identify contingent beneficiaries. It is equally essential that all Trust and Wills have detailed provisions to cover all assets and dispositions. In a recent case the late Charlie’s Angels star, Farrah Fawcett, left all her artwork to her alma mater. As reported by the Associated Press on December 19, 2013 at HollywoodReporter.com, at the time of her death an Andy Warhol portrait was located in her condominium. However, Ms. Fawcett’s companion, film star Ryan O’Neal, claimed that the portrait really belonged to him. After a trial a jury decided in O’Neal’s favor. The lesson to be learned is that specifying items in a Will or Trust that may belong to others can avoid long and costly Court battles.

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