Many clients are often confused as to the meaning of “probate”. Probate is “proving” an individual’s Last Will and Testament (“Will”) to the court. New York State law dictates specific formalities for the execution of a will. For a will to be validly executed and subject to the probate process, it must be signed by the person making the Will (“Testator/Testatrix”), in front of two witnesses who, within thirty days, sign their names and addresses at the end of the will. The Testator must declare to the witnesses that the document is his/her Will. Upon the death of the Testator, the witnesses must be contacted for verification unless they have signed an affidavit at the time of the Will indicating that they witnessed the execution of the Will and that the Testator read and understood the terms of the Will. If a witness predeceases the Testator, a death certificate of the witness must be produced.
Aside from the above-mentioned procedures, there are several factors to consider before a Will is drafted. One consideration is family structure, e.g. spouse, children from a prior marriage, children with special needs, or other family members with special needs, etc. Some clients are also concerned about leaving assets to a child who may be a spendthrift. In such a case, the Will could be written incorporating a trust that can prevent a beneficiary from squandering an inheritance.
In New York, and in most states, the only person who cannot be completely disinherited is a spouse. Even if a spouse is left out of a Will, New York law provides that he/she is entitled to an “elective share”, which is the greater of $50,000 or 1/3 of the estate. When disinheriting a relative who would ordinarily legally be eligible for an inheritance if no Will exists, it is important for the Testator to be clear about intent in order to avoid a possible Will contest. If the Testator does not mention the disinherited individual, it may increase the likelihood of a challenge by the family member. It is therefore recommended to specifically disinherit a relative within the Will rather than simply omitting mention of the relative.
A provision for those concerned about beneficiaries contesting a Will is called an “in terrorem” clause, or a “no contest” clause. Such a clause, states that if the beneficiary contests, his or her interests are revoked, discouraging a beneficiary from challenging a Will.
It is important to be aware that there are different ways to distribute one’s assets. For example, the Testator must consider how the assets should be distributed if a beneficiary dies before the Testator. The Testator should decide in advance whether a bequest is to pass to a predeceased beneficiary’s children or to be divided amount all of the surviving beneficiaries.
Finally, another factor to consider when drafting a Will is the size of the Testator’s estate, which will determine if estate tax planning is involved.
In conclusion, if an individual dies without a Will (“intestate”), assets are distributed in accordance with New York State Estates Powers and Trusts Law, which dictates to whom assets are distributed. One must execute a Will in order to prevent distributing assets in a way that does not comport with one’s wishes. All of the issues discussed herein as well as related issues should be discussed with an Elder Law attorney, who can draft a will that is tailored to the individual’s needs.