4 ways your last will and testament could be invalid

Drafting a last will and testament is not as simple as scribbling down a few notes on your deathbed and giving it to a trusted friend. In some cases, a handwritten “holographic will” like this could withstand a challenge in court, but an informal will is risky and ill-advised.

In fact, there are numerous ways that a will could be invalidated . It’s important to understand these potential will weaknesses so you can avoid having your will contested after you’re gone.

Problems with the way you signed the document

In most situations, you’ll want to have two different people present to “witness” your signing of the will. These people need to be non-beneficiaries. In other words, they will not be involved in any dispensation of the estate and they do not stand to benefit in any way from your will. Furthermore, they should not have a legitimate claim to inherit under state intestacy laws that would go into effect if no will were present.

The witnesses need to be present at the same time when you sign your will. They also need to sign the document while the others are watching.

Problems with testamentary capacity

You need to have “testamentary capacity” when you create and sign your will. To have testamentary capacity, you must understand (1) the value of your assets, (2) the people who will inherit your assets and (3) the effect of signing the will. If you are insane, temporarily insane, mentally incapacitated or suffering from dementia, at the time of signing your will, it could invalidate the document.

Problems related to undue influence

Imagine someone held a gun up to your head and said, sign this last will and testament in front of these two witnesses. Basically, you signed over all of your wealth to be inherited by the person holding the gun. This would be undue influence, and — so long as the influence becomes known — it would invalidate the will that you sign.

Problems related to fraudulent wills

A fraudulent will could be an entirely fabricated document. It could also be a document that other parties trick the testator into signing. One of the issues relating to a fraudulent will — or any potentially problematic will for that matter — is the fact that we cannot ask the testator what is correct because he or she is no longer here to answer questions.

Make sure you draft your will in a legally appropriate manner

Being careful with your will planning is essential. Don’t risk losing the legacy you leave behind because you made a simple mistake while planning you will. Learn about New York estate planning law and plan accordingly.

Your will matters: What happens if you die without a will?

Your will is the one document that can explain everything you want to see happen with your estate after you pass away. Anyone can die at any time, and that’s why so many people insist that it’s important to have a will early in life. When you don’t have a will, it’s harder to know what will happen to your assets and who will end up benefiting from them.

In cases where a father or mother married to one another passes away, there’s little contest as to who should receive the assets of the family home. In these cases, the surviving spouse often receives the entire estate, except for in the case that a child or children are from previous marriages or relationships. In those cases, the surviving spouse gets up to half the estate, and the rest is doled out to the children.

When you die without a will , your state laws dictate what happens to your estate. Do you want to see your family struggle to obtain the things that you purchased or collected over the years? If not, then a will is the answer for you.

States do recognize spouses, blood relatives and registered domestic partners, but there can be trouble in other situations. For instance, if you’ve lived with your partner for five years but never married or registered as domestic partners, your partner, a girlfriend or boyfriend by law, would not be entitled to anything from the estate except for items in his or her name or shared in both your names. Unmarried partners, charities and friends get nothing by law if you pass away without a will.

There are a few exceptions to the rule. For example, if you have taken out a life-insurance policy and named beneficiaries , then the beneficiaries will receive the payout regardless of whether or not you have a will. The same normally applies to a retirement account if you’ve already named a beneficiary. If you haven’t taken the time to name a beneficiary on these accounts and pass away, the assets become part of the estate and are shared with those recognized as heirs. If you have no potential heirs, then the estate goes to the state.

Your attorney can help you draw up a will, so you know your beneficiaries will receive what you want them to. You can always alter the will, but it is necessary to have one as soon as possible.

Source: Nov. 30, -0001

Executors, beneficiaries and writing a will

Adults in New York who do not have an estate plan may want to consider making one. Most people include a will in an estate plan. A will is a document that indicates how an individual wants their assets distributed after their death, and it must be signed by two witnesses. Without a will, the state will decide what happens to the assets.

The people or parties who receive the assets are beneficiaries. Beneficiaries might be friends, family or organizations. A will also needs an executor. This is the person who is in charge of distributing the assets and administering the estate in other ways such as paying taxes and debts. The executor might be a friend or family member, but an attorney or a financial professional may be an executor as well.

An individual may want to appoint a separate social media executor who is in charge of the individual’s online life. This person can be responsible for closing an individual’s online accounts and profiles and handling their email. A social media will may be written separately from the regular will.

Individuals should periodically review and update their wills. Families and friendships change due to births, marriages, divorces, deaths and other transitions, and over time, an individual may want to choose different beneficiaries.

An individual who is considering preparing an estate plan may want to work with an attorney in doing so. Wills may be challenged due to incorrect preparation or even legal language that is not used correctly. Individuals who have found themselves appointed executors of a loved one’s will may also want to consult an attorney. Sometimes, a person may be appointed executor while lacking the legal and financial knowledge they feel they need to manage the estate. This may particularly be the case if the estate is a complex one.

Source: USA.gov, “Writing a Will,” Accessed April 21, 2015

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

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

Requirements for New York wills to be properly executed

Wills in New York must meet several criteria before they are executed properly by a probate court. First and foremost, they must be in writing rather than in the form of oral testimony. A will must be signed by the one who wrote it or by a person in his or her presence and at his or her direction. A person who signs for the one who wrote the will does not count as a witness to the will execution .

At least two witnesses must be able to attest within a 30-day period that the one who wrote the will either signed it or directed another to sign it in his or her name. Their signatures and addresses must be affixed to the end of the will. The will must be signed in the presence of these witnesses, or the one who drafted the will must acknowledge the signature to each witness separately. Additionally, the drafter of the will must declare to each witness that the legal instrument is in fact his or her will.

Most of the formal requirements for execution and attestation of wills involve making sure that the will is indeed the will of its drafter. As such, these formal requirements do not need to be followed in any set order, but all necessary formalities must be observed within a satisfactory period of time.

For assistance in drafting a New York will as well as help with making sure all the formalities are properly adhered to, an estate planning lawyer may be able to help. Estate planning lawyers assist with numerous end-of-life financial decisions such as setting up trusts, managing tax concerns and drawing up a will to handle the transmission of one’s estate. They may also be able to assist with handling any probate court issues should they come up.

Source:  FindLaw, ” N.Y. EPT. LAW § 3-2.1 : NY Code – Section 3-2.1: Execution and attestation of wills; formal requirements “, November 16, 2014

Executing and attesting a will

In order to properly execute a will, residents in New York may need to understand more about the state requirements governing the process. Most wills are completed in writing, and most are executed and attested in similar fashion. The person whose name is on the will is referred to as the testator. The will must have the testator’s name, and signature included at the end in order to be approved. The document must be signed in front of witnesses who then attest to the event in order to be legitimized by the court system.

The testator’s signature is to appear at the end of the will. Nothing attached to the document below the signature can invalidate the agreed upon terms described in the body of the will. The only point of interest proceeding the testator’s signature is the attestation clause. Someone can sign for the testator in their presence and under their direction, but the person providing the assistance is required to include their own name and address on the document as well.

A will cannot be approved if the person signing the testator’s name does not provide his or her own signature as well. Forgetting to include their address, however, is permissible. The person signing for the testator does not qualify as a witness who can attest to the legitimacy of the document. State law requires at least two witnesses two attest to the testator’s signature and supply their own signatures and addresses in writing within a 30-day period.

People who need assistance writing a will or understanding more about the state requirements may benefit from consulting legal counsel. Lawyers may be able to perform a comprehensive review and evaluate of the testator’s estate, potentially minimizing the risk of adverse outcomes from arising for beneficiaries in the future.

Source:  Findlaw, ” NY Code – Section 3-2.1: Execution and attestation of wills; formal requirements – See more at: http://codes.lp.findlaw.com/nycode/ept/3/2/3-2.1#sthash.PgbWnyKz.dpuf “, October 13, 2014

New York wills require specific elements

A will is a formal document that allows individuals to determine how their possessions will be distributed upon death. It requires very specific actions to be taken to prove the validity of its contents. Failure to meet those requirements may thwart the maker’s intentions.

New York requires a will to be signed by the person making it, or signed on his or her behalf by another at the individual’s direction. There must be two witnesses, who must personally attest to it and observe the signing. However, they may sign within 30 days of the original signature if the individual personally tells them that the signature is in fact his or hers. The witnesses may sign at different times, but both must sign within 30 days of the individual’s signature.

No agency reviews and approves wills, so any problems will not come to light until after the person’s death. The will is offered to the court for probate after the death of its maker. Before the estate is distributed, the court must be shown that the will is valid. If the will has only one witness, or if the witnesses signed at a later date than the individual and there is no evidence that the testator affirmed to the witnesses that it was in fact her signature on the will, then the will may not be accepted. If the will is determined to be invalid, then the estate will be distributed in accordance with intestacy laws, which may not comport with the wishes of the decedent.

While the concept of a will is simple, the requirements are strict. Working with an attorney is a suggested way to ensure that the estate owner’s wishes are carried out.

Source:  Findlaw, ” Section 3-2.1: Execution and attestation of wills; formal requirements “, October 08, 2014

Considerations before choosing heirs

For many New York residents, estate planning may call to mind the consideration of a variety of different scenarios in order to determine the most attractive way to maximize distributions to heirs. The selection of those beneficiaries and the portion of wealth received by each may be less objective and more subjective.

Many people consider how much they want to leave to charitable organizations and which ones they want to enrich. They also consider family and friends. How much to leave to charities versus how much to leave to persons may be one of the first hurdles to jump.

After an amount is established for individuals, determining who gets how much is the next step. Sometimes the owner of an estate may decide not to distribute to heirs evenly but may decide to give funds based on good behavior, hard work or need. Some wealth holders may be apprehensive that an heir is not prepared to handle a large amount of money or that an heir could be demotivated when too much money is placed at his or her disposal. Whatever the logic used to make the allocation, the most difficult step could be communicating to the future beneficiaries in advance how the wealth will be distributed.

Planning the sharing of an estate may entail a lot of paperwork, calculations and decisions. Many people choose to include input from an attorney when they are planning the disposition of their assets. An attorney may be able to help ensure that the estate planning documents comply with laws of the state of residence and that they are accurate and properly prepared. The attorney can also suggest when it is appropriate to establish trusts rather than giving cash or other assets directly to a beneficiary.

Source:  Forbes, ” Estate Planning 101: Picking Your Heirs “, Larry Light, September 24, 2014

The duties of an executor

The task of choosing an executor may seem daunting to New York residents who are planning their estates. Knowing what an executor does may help people identify who may best fill that role.

An executor is a person appointed in a person’s will to administer the deceased person’s estate. This includes paying any outstanding debts the deceased may have had at the time of their death, paying taxes on their assets and ensuring that their wishes as stated in their will are carried out. People who have large estates sometimes appoint money managers, attorneys or other professionals as executors since their estates may require more experience to administer. Since the tasks of an executor tend to be extensive, New York law says that executors are entitled to compensation paid from the estate.

To some people, it may seem natural to name a surviving spouse, child or other relative as executor. However, family members, beneficiaries of an estate or other people close to the deceased may have a conflict of interest if they are appointed. In addition, people who are not used to making financial decisions may be unsuited to managing the estate’s investments or other assets. Some people name more than one executor to minimize conflicts of interest or to give executors who are less experienced in managing finances or property a source of advice in handling these matters. Business partners or friends who are knowledgeable in law or asset management may serve well as co-executors.

Choosing the right executor often determines how well an estate’s assets will be managed and how fairly property will be divided among beneficiaries . Estate planning attorneys may be able to advise clients on whom to appoint as executor and other aspects of the will-writing process.

Source:  The Association of the Bar of the City of New York, ” What is an executor? “, September 23, 2014