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What is a will?
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
- House(s)
- 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.
hideAre 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. Three primary circumstances:
- You cannot disinherit your spouse:
- Jointly owned property does not pass by will:
- 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
- Accounts for which you have named a specific beneficiary:
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.
hideIf 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.
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.
hideSome 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.
hideDo 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.
hideHow will New York distribute my estate if I don’t have a will?
The EPTL’s definition of what constitutes a legal heir is very broad, but don’t assume it covers absolutely everybody and that your possessions will “stay in the family.” The bottom line? It’s better to make a will.
Here is the order of inheritance preference in New York under the EPTL for people who die intestate (in the following chart, the word “issue” means a descendant of a common ancestor—for example, your children, grandchildren and great-grandchildren and so on are all issue of you and your spouse; you, your brother and sister are issue of your parents, grandparents and so on, but your spouse is not—your spouse is issue of his or her parents, grandparents and so on):
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If you are survived by a spouse and issue... |
$50,000 + ½ of the remaining estate goes to the spouse; ½ divided among your issue. |
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If you are survived by a spouse and no issue... |
All goes to your spouse. |
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If you are survived by issue and no spouse... |
All divided among your issue. |
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If you are survived by parent(s) and no spouse or issue... |
All goes to parent(s). |
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If you are survived only by your parents’ issue (i.e., your brother(s) and/or sister(s)or, if dead, their issue)... |
All divided among your brother(s) and/or sister(s)or, if dead, their issue. |
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If you are survived by one or more grandparents and their issue up to their first grandchild (i.e., your aunts, uncles and first cousins)... |
½ goes to surviving paternal grandparent(s) or to their issue (until first grandchild—your 1st cousin(s)); ½ to surviving maternal grandparent(s) or their issue (until your first cousin(s). If there are no survivors on one side, all goes to other side. |
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If you are survived by the great-grandchildren of your grandparents... |
½ divided among the great-grandchildren of your paternal grandparents; and ½ divided among the great-grandchildren of your maternal grandparents per capita. If there are no great-grandchildren on one side, all goes to the great-grandchildren on the other side. |
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If you are survived by other or remote kin... |
No distribution—property and assets go to State of New York. |
Who may make a will?
Under New York law, any person who is over 18 and who is “of sound mind and memory” has the legal capacity to make a will.
hideWhat does it mean to be “of sound mind and memory”?
All it means is at the time you make the will, you:
- Understand what you are doing by executing a will, i.e., deciding how to distribute your possessions;
- Are aware, generally, of the nature and value of the possessions you are including in your will; and
- Know and understand your relationship to the person or people you are giving your possessions to.
You need not be 100 percent mentally sound to make a valid will—the threshold is not that high. In fact, it is one of the lowest thresholds in the law for signing a document. All that need exist is your awareness of what you are doing at the time you make the will, not at some later date. Even a person with dementia may be able to execute a will if that person has periods of lucidity.
How do I know if someone is of sound mind and memory?
Compare the following examples of what would probably constitute sound mind and memory and what might not. The people in example 1 & 2 probably meet the standard; the people in examples 3, 4, & 5 might be borderline; and the last two are questionable. However, each case depends on the circumstances:
- The person making the will is forgetful, and sometimes doesn’t recall what year it is or remember recent conversations; nevertheless, she handles her own financial affairs without difficulty.
- The person making the will is unable to care for his own physical needs, but talks fondly of family and friends and what he wants to leave each when he dies.
- You know the person making the will is an alcoholic who suffers from delusions and blackouts. You know the person was drinking heavily the day before the signing.
- The person making the will has early-stage Alzheimer’s and decides to leave his entire estate to an online charity—he had never mentioned or had anything to do with this charity before that point in his life.
- On two occasions while making the will, the person making the will expresses a desire to leave possessions to someone whom she has known for a long time to be dead. She makes no other such errors, and after being reminded the status of the dead person, recalls both that the person is dead, and when and how the person died.
- The person who makes the will wants to leave possessions to someone whom he has known for a long time to be dead and cannot be talked out of it, even though he is otherwise able to make the will without problems.
- An attorney or witness to the signing of a will notices that during the signing ceremony, the person making the will is confused and has forgotten what he put in the will.
hide
To whom can I leave all or part of my estate?
In your will, you may leave your estate, or any part of your estate, to any person (doesn’t have to be an American citizen) or institution that has the capacity to receive and hold the property:
- You can leave items to children not born yet.
- You can leave your baseball card collection or any other part of your estate to your son while he is alive and then after he dies, direct that what’s left go to his son.
- You may also leave all or part of your estate to a pet by creating a trust that has the responsibility of providing for the pet.
- You can even leave your estate or any part of it to a corporation or charitable organization.
What limits are there with regard to whom I leave all or part of my estate?
There are very few limitations on your right to decide who gets your estate.
- If you leave an inordinate part of your estate to a pet, a judge may reduce the amount you left to the pet if the judge determines the amount you left is excessive;
- Under New York Law, you cannot disinherit your spouse; so even if you dispose of all your estate by your will, your spouse will be entitled to the first $50,000 or one-third of the whole, which could result in nobody in your will receiving anything, if your estate is valued at $50,000 or less.
- The “Rule Against Perpetuities” stops people from trying to control property for all time. Under this rule, you may not leave any or all of your estate to a person who will be born many years after your death.
- Example: you cannot create a trust that generates income for your son until he dies, and after he dies, you direct that the principal in the trust is to accumulate for 100 years, after which it goes to the youngest descendant of your son.
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I need help directing my estate by will:
- Try to list as much of your property and assets as possible.
- Think about how and to whom you would like to dispose of your property and assets.
- Get in touch with an experienced estate and trust lawyer.
Can I change or revoke my will?
Yes.
hideHow do I modify a will?
Under New York law, to modify a will, you make what is called a “codicil,” which is simply a supplement to your will in which you add to, take from, or alter its provisions. You can also make a codicil that confirms your original will in whole or in part but that doesn’t completely revoke your will. The safest way to modify a will is to make a new will.
hideHow do I revoke a will?
Under New York law, there are three primary ways to revoke a written will:
- Make a new will—you must follow all the rules for executing a valid will and have the mental capacity to execute the new will.
- Make a writing that clearly indicates your intention to revoke your will. You must follow all the rules for executing a valid will and have the mental capacity to execute this type of revocation. Usually when people make this type of revocation, they also execute a new will at the same time.
- By physical act, so long as you do so with an intent to revoke the entire will—if you (or someone in your presence and at your direction) burn, tear, cut, obliterate, cancel, or otherwise mutilate your will, your will is considered revoked. If the will is revoked in this manner by someone other than you (meaning at your direction), there must be two witnesses in addition to the person who performed the physical act that revoked the will.
A revocation revokes all codicils to your will, as well.
Note that people who are permitted by New York law to make an oral will (nuncupative) or handwritten, unsigned, unattested will (holographic) may also modify or revoke the will by nuncupative or holographic act.
hideI need help with a will modification or revocation question:
- Obtain the original of your will.
- Decide what you want to modify or how you want to replace a revoked will.
- Get in touch with an experienced estate and trust lawyer.
