Circumstances necessitating changes to a will or estate plan

New York residents who have prepared a will may know that a divorce, a remarriage or the death of a spouse will likely necessitate an evaluation of that document. In some circumstances, a will cannot be simply changed but must be completely revoked in order to be considered valid by a probate court.

A divorce is a circumstance that necessitates a complete revocation of a person’s will. In fact, a will’s provisions are instantly revoked following the divorce of the testator in many states including New York. Additionally, the ex-spouse’s name should be removed from a living trust, a living will and durable power of attorney documents, as well as life insurance policies, an IRA and pensions.

A marriage and the birth of children can be times for estate planning updates as well. It is very important that the new spouse be named in the will. Otherwise, New York courts will only allow the surviving spouse to inherit one-third of the assets with the remaining estate going to the children or the next closest family relations. Likewise, the will should appoint a guardian who will take care of minor children in the event both parents pass away.

A will should also be updated upon retirement or if the testator moves to another state. If the will does not comply with the particular state’s laws, it may be invalid. Keeping a will updated can help to ensure that beneficiaries are not burdened with complexities that may arise upon the distribution of the testator’s assets. A New York estate planning attorney can assist in the conduct of a periodic review of a client’s will and other important documents.

Source: Kiplinger , ” Good Reasons to Change Your Will “, December 22, 2014

Contesting a will during probate

As many New Yorkers may know, leaving a will when an individual dies is one way to assure that certain beneficiaries will inherit what the testator wished. Generally, the document goes through probate successfully. However, there are times that wills are challenged. This occurs most often when an individual believes that it does not express the testator’s wishes for a variety of reasons.

Some reasons a will is challenged are due to the belief that the person lacked the capacity to make a will. This includes individuals who had mental issues or if the will maker suffered from conditions such as dementia or Alzheimer’s or was addicted to substances that cloud judgment. In these cases, it may be impossible for the testator to have a firm understanding of the property they wish to designate and the individuals they might choose. Successful probate litigation occurs most often when the will is challenged by a spouse.

Dating a will is important since an earlier will might surface that is contradicted by the latest one. If the final will is dated, it may be difficult to prove that the earlier will carries any weight. It may be beneficial to include wording in the latter will to say that this will replaces all previous wills.

Most states require that a will be witnessed in order for it to be valid. The number of witnesses is state specific. It is usually best for witnesses not to be named as beneficiaries in the will. If they are, it might open up a challenge to their inheritance. Having the will notarized makes it unnecessary for witnesses to be involved in court proceedings if the will is challenged. When a will is challenged, having the advice of an attorney can be important.

Source:  Findlaw, ” Reasons to Challenge a Will “, December 17, 2014

Are holographic wills valid in New York?

In the state of New York, a holographic will may be considered valid only under certain circumstances. A holographic will is a will that is handwritten and not executed in accordance with state law. The holographic will is valid if created by a member of the armed services during actual military or naval service. It may also be valid if the testator accompanies an armed force during actual armed conflict.

Finally, the holographic will may be considered valid if it is created by a mariner while at sea. The will may be considered void if the holographic will is associated with a testator who has been out of the military for at least one year. The same is true for someone who created a holographic will while accompanying an armed force.

Holographic wills are valid for mariners at sea for three years from the time the will was created. If at any time the creator of a valid holographic will loses testamentary capacity, the will may be valid for one year after regaining such capacity. All holographic wills authorized under New York state statutes are subject to such provisions to the extent to which they could be applied consistently with their character.

An estate planning attorney may be able to help anyone who wishes to create a will. If a will is handwritten, the attorney can help create a typed or printed version with witnesses to its creation. Doing so increases the odds that it will be accepted when entered into probate upon the testator’s passing. Estate planning attorneys may also be beneficial for those who are considering trusts as a way to convey assets to beneficiaries.

Source:  FindLaw, ” N.Y. EPT. LAW § 3-2.2 : NY Code – Section 3-2.2: Nuncupative and holographic wills “, December 08, 2014

What is a living will and do I need one?

While most people in New York may have heard of living wills, it may not be clear exactly what they are and how they differ from other wills. While a person’s regular will discusses how their assets are to be handled after their death, a living will, by contrast, deals with major health care decisions while the person is still living.

Living wills are legal documents through which people can outline what care and treatment they are willing to receive in the event they become incapacitated and no longer able to make decisions on their own. These wills allow a selected proxy to make decisions regarding treatment on behalf of the incapacitated person according to the living will’s provisions.

Medical advancements have brought many life-sustaining treatments that can be used to prolong life, but not everyone wants to use them. By writing a living will and carefully selecting the proxy, people can ensure that they will only receive the type of treatment that they desire in the event of incapacity. They are just as important for young people to consider having as they are for the elderly, as young people can also become incapacitated due to an accident or serious and unexpected illness.

While a person’s spouse may be named as the person’s health care proxy, it is important to discuss the person’s wishes as to care to make certain that the spouse agrees and is willing to do as the living will directs in the event catastrophe occurs. It can be equally important to select an alternate in case the first choice is unable or unwilling to perform his or her duties if the time comes.

Source:  American Bar Association, ” Living Wills, Health Care Proxies, & Advance Health Care Directives “, December 02, 2014