How to Create a Will in New York: A Step-by-Step Guide

Planning for the future is an important part of ensuring that your assets and wishes are handled according to your desires after you pass away. One of the most effective ways to accomplish this is by creating a will. In New York, the process of creating a will involves several steps and legal requirements. Understanding these steps can help you create a valid and enforceable will that reflects your intentions. This guide will walk you through the process of creating a will in New York, from understanding the importance of a will to executing the final document.

Jean M.
Mahserjian, Esq.

Ashley
Mahserjian, Esq.

Understanding the Importance of a Will

A will is a legal document that outlines how you want your assets to be distributed after your death. Without a will, your estate will be distributed according to New York’s intestacy laws, which may not align with your wishes. A will allows you to appoint a guardian for your minor children, name an executor to manage your estate, and specify beneficiaries for your assets. This document provides peace of mind, knowing that your loved ones will be taken care of according to your wishes. In New York, the importance of a will cannot be overstated. The state’s intestacy laws, which come into play when someone dies without a will, dictate how a deceased person’s assets are distributed. These laws prioritize certain relatives over others and may not align with what you envision for your estate. For example, under intestacy laws, if you are married with children, your spouse will receive the first $50,000 of your estate plus half of the remainder, while the rest is divided among your children. This distribution might not match your specific intentions, especially if you wish to leave particular assets to certain individuals or organizations. Having a will also allows you to appoint an executor, the person responsible for managing your estate after your death. This role involves gathering your assets, paying debts and taxes, and distributing your assets according to your will. Without a will, the court will appoint an administrator to perform these duties, which may not be the person you would have chosen. Additionally, if you have minor children, a will lets you designate a guardian to care for them in the event of your untimely passing. Without a designated guardian, the court will make this decision, potentially placing your children with someone you would not have selected.

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Determining Your Assets and Liabilities

Before you create your will, it is important to take inventory of your assets and liabilities. This includes everything you own, such as real estate, bank accounts, investments, personal property, and any debts you owe. Understanding the value of your estate is crucial for making informed decisions about how to distribute your assets among your beneficiaries. Your assets can be categorized into tangible and intangible assets. Tangible assets include physical property like your home, vehicles, jewelry, and collectibles. Intangible assets include bank accounts, stocks, bonds, retirement accounts, and life insurance policies. Additionally, you should consider any digital assets, such as online accounts, digital media, and cryptocurrencies, which may also need to be addressed in your will. Liabilities include any debts or obligations you owe, such as mortgages, loans, credit card debt, and unpaid taxes. When assessing your liabilities, it’s important to consider how they will affect the overall value of your estate and how they will be settled after your death. In New York, your estate is responsible for paying off any outstanding debts before distributing assets to your beneficiaries. By taking stock of your assets and liabilities, you can gain a clear understanding of the value of your estate and make informed decisions about how to distribute your assets. This step is crucial for creating a comprehensive will that reflects your wishes and provides for your loved ones.

Choosing Your Beneficiaries

Once you have a clear understanding of your assets, the next step is to choose your beneficiaries. Beneficiaries are the individuals or organizations that will receive your assets upon your death. You can name anyone as a beneficiary, including family members, friends, charities, and institutions. It’s important to be specific when naming beneficiaries, using full names and, if necessary, additional identifying information to avoid any confusion. In New York, you have the freedom to leave your assets to whomever you choose. However, there are some legal considerations to keep in mind. For instance, if you are married, your spouse has certain rights to your estate under New York law. If you want to leave your spouse less than they would receive under intestacy laws, they may have the right to claim an elective share, which is typically one-third of your estate. Additionally, it’s important to consider the age and capacity of your beneficiaries. If you are leaving assets to minor children, you may need to establish a trust or appoint a guardian to manage their inheritance until they reach adulthood. Similarly, if you have beneficiaries with special needs, you may want to consider creating a special needs trust to ensure their continued care without jeopardizing their eligibility for government benefits. Another important aspect of choosing beneficiaries is considering contingencies. For example, you may want to name alternate beneficiaries in case your primary beneficiary predeceases you or is unable to inherit your assets. By considering these factors and clearly outlining your wishes, you can ensure that your assets are distributed according to your intentions and provide for your loved ones’ future.

Selecting an Executor

Selecting an executor is a crucial step in creating your will. The executor is responsible for managing your estate, ensuring that your assets are distributed according to your wishes, and handling any legal or financial matters that arise after your death. When choosing an executor, it’s important to select someone who is trustworthy, organized, and capable of handling the responsibilities associated with the role. In New York, the executor must be at least 18 years old and of sound mind. While you can name anyone as your executor, it’s common to choose a family member, close friend, or professional advisor who is familiar with your financial and personal affairs. If you have a complex estate or anticipate potential conflicts among beneficiaries, you may want to consider appointing a professional executor, such as an attorney or financial institution, to manage your estate. It’s important to have an open and honest conversation with the person you intend to appoint as your executor. Discuss your wishes and the responsibilities involved in managing your estate, and ensure that they are willing and able to fulfill the role. Additionally, you may want to name an alternate executor in case your primary choice is unable or unwilling to serve. This ensures that there is a backup plan in place and helps prevent delays in the administration of your estate.

Drafting Your Will

With your assets, beneficiaries, and executor in mind, the next step is to draft your will. In New York, a will must meet certain legal requirements to be considered valid. These requirements include being in writing, signed by the testator (the person creating the will), and witnessed by at least two competent individuals who are not beneficiaries of the will. While it is possible to draft your own will, seeking legal assistance is highly recommended to ensure that your will is comprehensive, legally sound, and reflects your intentions. An experienced attorney can help you navigate the complexities of estate planning and provide guidance on important considerations, such as tax implications, guardianship provisions, and trust arrangements. When drafting your will, it’s important to be clear and specific in your language to avoid any ambiguity or misinterpretation. Outline your wishes for the distribution of your assets, the appointment of guardians for minor children, and any specific bequests or conditions you wish to include. If you have specific items, such as family heirlooms or sentimental possessions, that you want to leave to certain individuals, be sure to clearly describe them in your will. Additionally, you may want to include a residuary clause, which outlines how any remaining assets not specifically mentioned in your will should be distributed. This helps ensure that no assets are left unaddressed and provides a comprehensive plan for the distribution of your estate.

Executing Your Will

Once your will is drafted, the next step is to execute the document. In New York, the execution of a will involves several key steps to ensure its validity. First, the testator must sign the will at the end of the document. If the testator is unable to sign, they can direct another person to sign on their behalf in their presence. The will must then be witnessed by at least two individuals who are present at the same time and observe the testator signing the document. These witnesses must also sign the will, attesting to the testator’s mental capacity and the voluntary nature of the signing. It’s important to choose witnesses who are competent, over the age of 18, and who do not stand to benefit from the will. While it’s not required, it is recommended to have your witnesses sign a self-proving affidavit, a notarized statement that attests to the validity of the will. This can help expedite the probate process by eliminating the need for witnesses to testify in court after your death. After the will is executed, it’s important to keep the original document in a safe and accessible location. Inform your executor and trusted family members of its whereabouts to ensure that it can be easily located when needed. It’s also a good idea to review your will periodically and update it as needed to reflect any changes in your circumstances, such as the birth of a child, a change in marital status, or the acquisition of new assets.

Understanding Probate and Estate Administration

After your passing, your will must go through the probate process in New York. Probate is the legal process of validating your will and distributing your assets according to your wishes. The process begins with the filing of a petition in the Surrogate’s Court in the county where you resided. The court will then issue letters testamentary to your executor, granting them the authority to administer your estate. The executor is responsible for gathering your assets, paying any debts and taxes, and distributing the remaining assets to your beneficiaries. This process involves notifying creditors and potential heirs, filing necessary tax returns, and managing any legal disputes that may arise. While the probate process can be complex, having a valid and clearly drafted will can help streamline the administration of your estate and minimize potential conflicts among beneficiaries. In New York, certain assets may bypass the probate process, such as jointly owned property, assets with designated beneficiaries (like life insurance policies and retirement accounts), and assets held in a trust. Understanding which assets are subject to probate can help you make informed decisions about your estate plan and explore options for minimizing the impact of probate on your loved ones.

Updating and Reviewing Your Will

Creating a will is not a one-time task; it requires periodic review and updates to ensure that it continues to reflect your current wishes and circumstances. Life events such as marriage, divorce, the birth of a child, the death of a beneficiary, or changes in your financial situation may necessitate revisions to your will. Regularly reviewing your will allows you to make any necessary adjustments and avoid potential complications in the future. In New York, changes to a will can be made through a codicil, a legal document that amends specific provisions of your existing will. A codicil must be executed with the same formalities as a will, including signing in the presence of witnesses. Alternatively, you may choose to create a new will, which will revoke and replace the previous one. If you choose this option, it’s important to clearly state your intention to revoke any prior wills to avoid confusion. Consulting with an attorney during the review and updating process can provide valuable guidance and ensure that your will remains legally valid and aligned with your current intentions. By regularly reviewing and updating your will, you can have peace of mind knowing that your estate plan accurately reflects your wishes and provides for your loved ones.

Secure Your Legacy  Contact Us Today

Creating a will is a significant step in ensuring that your wishes are honored and your loved ones are provided for after your passing. At Mahserjian & Mahserjian-Ortiz, PLLC, we understand the complexities of estate planning and are here to guide you through the process with compassion and experience. Our dedicated team is committed to helping you create a comprehensive and legally sound will that reflects your unique circumstances and goals. Whether you are just starting to think about your estate plan or need assistance updating an existing will, we are here to provide the guidance and support you need. Contact us today to schedule a consultation and take the first step in securing your legacy. Let us help you navigate the complexities of estate planning with confidence and peace of mind.