Under the New York Estates, Powers and Trusts Law (EPTL), a will is a written document (in rare cases, a will may be oral) that takes effect when you die, and in which you direct:
- How your property and assets (also called your “estate”) should or should not be distributed (meaning you can exclude people or property, as well as include them) and who will distribute them (this person is called your “executor”);
- How outstanding bills/taxes should be paid;
- Who should care for your minor children if you have any; and
- What should happen to your body or specific body parts.
Your will can also include trusts that you have set up to become active after you die.
What property can I dispose of in my will?
Your will may include any property and assets that you are legally entitled to distribute. That includes, but is not limited to:
- Money, stocks, bonds, coin and stamp collections
- Real estate
- Furniture, artwork, books, appliances, or anything else in a house or houses
- Personal papers, personal items
- Cars and other vehicles
- Future interests in property—that is, something that you don’t own now, but you have a right to own in the future. You can leave your future right to own the property or asset.
Sometimes, years can pass between the making of a will and your death. If at your death, you no longer own a possession disposed of in your will, that part of the will is not effective.
Are there limitations on what property I can distribute?
Yes, there are a number of circumstances that limit your right to distribute certain property you own.
- You cannot disinherit your spouse: Under EPTL, if you are married when you die, your spouse has the right to decide whether to receive $50,000 or one-third of your estate (whichever is greater). This is true even if you say in your will that you wish to leave nothing to your spouse. In your will, you may leave your spouse more than $50,000 or one-third of your estate, and your spouse may elect to take what you left in the will instead of the legal minimum.
- Jointly owned property does not pass by will: If you hold property jointly with your spouse or with anyone else or even multiple people (meaning you hold equal rights in the property as your spouse, other person or people), your interest passes to the joint owner(s); you may not give that property to someone else.
- Example: If you own your house jointly with your spouse, and he or she survives you, your spouse will receive the house after your death regardless of anything to the contrary in your will.
- Reserved household items: If you are married when you die and/or have children under the age of 21, you may not dispose of many household items (including one vehicle) up to a certain dollar value.
- Accounts for which you have named a specific beneficiary: Some assets, like the proceeds of an insurance policy, retirement accounts, like 401k and IRA, and other accounts with a named beneficiary, cannot be distributed in your will.
Do I really need a will?
If you do not have a will when you die, you are considered “intestate.” That means you have not determined and directed how your possessions, property and assets (your estate) should or should not be distributed. Under the New York Estates, Powers and Trusts Law (EPTL), in such cases, the state has predetermined how and to whom in your family your estate will be distributed, whether you would have distributed it that way or not.
In essence, when you die intestate, New York makes a default will for you. And if you have no legally recognized heirs, your possessions will go to the State of New York, though this is a rare occurrence. With a will, on the other hand, you can distribute your estate to non-legally recognized heirs, charities, or even friends.
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.