Intent and Capacity

Additional Provisions
Optional Clauses
Apart from the requirements of making your will in writing, signing it, and having it signed by two competent witnesses, the document will also contain some very important clauses. Though these clauses aren’t necessary, they address decisions that you can only make through your last will and testament. • Representative. After you die, your will must be admitted to a New York Surrogate’s Court to begin the probate process. You can name the person who will represent your estate during this process by nominating someone in your will. This person is known as a personal representative or an executor. • Guardian. Parents with children under the age of 18 should nominate a guardian in their wills. A guardian will take over parenting responsibilities should you die before the child reaches adulthood. • Testamentary Trust. Unlike a living trust, a testamentary trust is one that is only created after you die. These trusts are commonly used to manage property you wish to give to a minor child. Because minor children cannot legally own property, the testamentary trust will own it until the child is old enough. You can create a will clause that allows for the creation of a testamentary trust, and you can appoint a trustee to manage it.

Not Making a Will
You Leave Everything to the State to Decide
A lot of people never get around to making a will. Because this situation is so common, the state of New York, as well as all other states. has laws that address it. If you don’t make a last will and testament you are said to have died intestate. In such a situation, New York’s intestacy laws determine who inherits your property. Even if you know how you want to distribute your property after you die, intestacy laws will still apply to your estate unless you make a will.

9 The State Might Inherit Your Property
Even though it is very rare, it’s possible that the state of New York could become the legal inheritor of all of your property if you die without a will. Through the law known as escheat, New York serves as the final inheritor of any intestate estate. If you die without a will and no living relatives survive you, all of your property will transfer to the state.

10 Do I have to have to notarize my will?
No. New York law does not require testators to have their wills notarized.

11 Can I change my will?
Yes. Wills are not contracts. If you change your mind about the choices you have made in your will you can change it at any time as long as you maintain capacity. • Revoking a will. If you completely change your mind about the choices you have made in your will you can revoke the document entirely. This is best done by creating a new will or codicil, but you can also physically destroy the original will with the intention to revoke it. • Codicil. If you want to update a will or make some minor changes you can create a codicil. Codicils amend the terms of a previously written will and must meet the same creation requirements as a will. • New will. If you want to make significant changes to an old will it is best to create an entirely new one. New wills state that the old will is no longer valid and allow you to make entirely different choices.

12 Do Not Delay


Making a will is something many people procrastinate about and never get around to actually doing. If you only learn one thing about wills, you need to understand that they are documents that you use to make choices that affect you and your family. If you don’t take the opportunity to make those choices, someone else will make them for you.


After Your Will

A will is not capable of serving all of your estate planning needs. There are some choices you can make that will have to be made through tools other than a will. • Health care decisions. Wills state your choices about what you want to happen after you die. But what happens if you are rendered unconscious or otherwise incapacitated? In such a situation you will need to create medical directives that state the kinds of medical choices you want to receive. Wills cannot do this. • Delegation of authority. In some situations you might want someone else to manage important affairs on your behalf. You can create powers of attorney to give others financial decision-making authority, although creating a Living Trust often is a better option, but you cannot do so through a will. • Other options. The complete estate plan involves numerous different elements, and no two plans are identical.

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