WHY USE A LAWYER TO MAKE A WILL?
These days we can print a piece of paper on the internet and call it a will. However, a lawyer takes care that the requirements are met to prevent the will from being held void. There is a legal presumption when a lawyer oversees the will that can save a will’s validity. A do it yourself will does not have the presumption. Further, a lawyer can prepare an affidavit to be signed by the witnesses stating facts showing that the testator had a sufficiently sound mind to make a will, and be a witness in support of the will if it becomes necessary. A will is just one piece of an estate plan. You may need a health care proxy, a power of attorney, and a living will. You may need a trust in a will, known as a testamentary trust, or you may need a trust in addition to a will.
A will may have to be customized to address issues you are not aware of. Discussing the issues with the attorney helps make informed decisions. Here is one example, minor children may not inherit directly under a will–a trustee for their property has to be appointed. Making a witness a beneficiary under a will can cause a problem.
WHAT IS A WILL?
A will is the legal declaration of a person’s intentions as to what he wills to be performed after his death in relation to his property. In New York, in general, a will must be in writing. The person making the will (“testator”) must sign at the end (or have it signed for him). The will must be attested by at least two witnesses who meet certain requirements and sign their names and affix their residence addresses at the end of the will.
WHAT IS PROBATE?
Probate is a process of asking a court to obtain approval of a will, preparing necessary tax returns and resolving outstanding claims, and distributing the proceeds of the estate to the parties in accordance with the will.
WHAT IS ADMINISTRATION?
Administration is a process for handling an estate where there is no will and the decedent did not designate any beneficiaries of his estate. This leads to assets being distributed to relatives under the administration provisions of the relevant New York statute. My office can assist administrators of an estate. This involves due diligence in finding the decedent’s distributees, preparing necessary tax returns and resolving outstanding claims, and distributing the proceeds of the estate to the distributees.
If no relative comes forward to commence an administration proceeding, a government office of the Public Administrator handles the intestate estate. The Public Administrator receives a fee and its outside attorney is also paid. The money does not “go to the state” unless it is impossible to locate relatives.
WHAT IS ESTATE LITIGATION?
When objections are filed to a will or other estate matter in Surrogate’s Court, that commences a legal dispute for the Surrogate’s Court to resolve. This is known as estate litigation.
An example of an objection to a will is the claim that the testator lacked testamentary capacity. To make a will, a testator must have sound mind and memory. This means sufficient capacity to comprehend the meaning of the provisions of the will, and the disposition of property on death, the nature, extent and condition of his property and, his relationship to the people who would ordinarily be the natural objects of his bounty, such as relatives, dependents, and people with whom he has had a relationship. He must have sufficient memory to recall these matters without prompting, and to hold them in his mind long enough to make a judgment.
Another example of an objection resulting in estate litigation is a claim that a person used undue influence upon a vulnerable decedent to change the estate plan and to benefit that person at the expense of the decedent’s true intended beneficiaries.
WHAT OTHER ESTATE PROCEEDINGS DOES THIS OFFICE HANDLE?
This office can handle other estates proceedings including withdrawal of funds deposited with the City of New York, lost will matters, and estate accountings.
WHAT IS FINANCIAL ELDER ABUSE?
Unfortunately, financial elder abuse, or taking advantage of elderly people to obtain their assets and be included in their estates, is a growing phenomenon as our population gets older. A nationwide study found that signs of elder financial abuse include, among others, isolation from family, friends, community, and other stable relationships, new “best friends”, unusual degree of submissiveness to a caregiver, among others. This can be prevented.
WHY IS ESTATE PLANNING WORTH IT?
While a prolonged disabling illness is not inevitable, it happens to many people. Estate planning can help with disability using the tools of the health care proxy, living will, power of attorney, and in some cases, a trust. This can significantly improve your quality of life in a difficult situation.
Death is inevitable. Planning for it can give peace of mind knowing that you and those you care about have a plan in place.