Estate planning is an important and necessary step in ensuring you and your loved ones are taken care of in the future. A Last Will and Testament is one of the documents that many individuals choose to draft as part of their estate plan. In the state of NY there are different types of Wills that could be drafted. Here are just a few different types:
A "self-proving" will is one that includes a sworn statement from a witness who watched the will-maker execute the will. Probate courts in several states will accept this declaration as proof that the will is valid. This avoids the need for witnesses to appear in court after the will-maker has passed away to testify about witnessing the will being signed.
Having witnesses during the will execution process is crucial to proving the validity of the will. If a disagreement arises about the validity of a contract or lease, the individuals whose signatures appear on the document can testify as to whether or not their signature is authentic. In probate court, however, this is not feasible because a will has no legal effect until the individual who signed it has died.
When someone dies and their will is submitted to the probate court, the court requires two adult witnesses to testify that:
- they saw the will-maker sign the will
- the will-maker told the witnesses the document was his or her will
- the will-maker appeared to have the mental capacity to make a valid will
- he or she appeared to be acting freely
One advantage of attaching a self-proving affidavit to a will is that witnesses do not have to go to court and testify.
It is important to note that not every state allows a self-proving will. In the District of Columbia, Maryland, Ohio, and Vermont, the self-proving option is not available. In some states--California, Indiana, and New Hampshire--an affidavit may not be necessary.
It is common for people who create revocable living trusts to also create a "pour-over will" to avoid probate. If any property passes through the will at the person's death, the will orders that it be transferred to (poured into) the trust and then dispersed to the trust's beneficiaries.
The purpose is to distribute all of the assets according to the trust agreement. This has a number of advantages:
- Because the estate plan is managed by only one document, the trust, it is less complicated.
- A trust instrument, unlike a will, does not enter public record after a death so it keeps the details of the disbursement of assets private.
- It deals with "leftovers," or items that the owner didn't get around to transferring to the living trust before dying.
Will Executor’s Job
As executor, you're in charge of transferring any assets that pass according to the terms of the will. You must, however, transfer all assets to the living trust rather than giving them directly to beneficiaries.
Fortunately, only a small amount of property travels through a pour-over will in most circumstances. All important assets were transferred to the trust before death if the deceased person did an excellent job of estate planning. Only modest items should pass under the terms of the will, which implies the estate may be eligible for special "small estate" probate processes. These procedures, known as "summary probate," are less time-consuming, less difficult, and less expensive than traditional probate. You can use them for any type of property except real estate in most states.
Your job is to transfer assets into the trust's name, whether through regular or summary probate. The trustee then takes over.
The Successor Trustee’s Job
Once the assets are held in the trust's name, they become the responsibility of the successor trustee. The duty of the successor trustee is similar to that of the executor, with the important exception that the trustee solely has power over trust assets. As a result, the trustee will divide the trust assets in accordance with the trust agreement.
If an individual is facing imminent death, a deathbed will may be necessary. Although the conditions may not be ideal for giving thorough thought to the provisions of the will, a will produced in this scenario can be just as valid and binding as one made at home or in a lawyer's office.
Validity of Deathbed Wills
To be valid, a will must be either:
- entirely handwritten and signed by the person making it, if state law allows it; OR
- signed and dated by the will-maker in the presence of witnesses, who know that the document is the person's will and also sign it
An oral deathbed will, also known as a nuncupative will, may be valid in exceptional situations. Most states prohibit them, and if you're settling an estate, you're unlikely to come across a claim that the deceased person made a legitimate oral will.
Whatever the reason for the last-minute will, it is legitimate if it was executed according to the requirements required by the state where the person resided. A valid will does not require notarization. It does, however, require the signatures of two adults. The witnesses do not need to read the will, but they must be aware that the sick person wishes for it to be his or her last will and testament.
If you have any doubts regarding the legality of any will, it is best to contact a lawyer. Will contests are uncommon, but when they do occur, they can be complicated and costly—not to mention damaging to family relationships. If you can't escape difficulties, a lawyer can help you deal with it.
For an experienced attorney who can help you navigate the will planning process, please contact the Law Office of Inna Fershteyn at (718) 333-2394.