Estate Planning next steps to writing your will…. ucpn presents…..

So you have decided you need a will.  A very basic will involves the bulk distribution of your assets, typically to your spouse.  It then makes provision for the possibility that your spouse predeceases you.  It should also make provision for what happens if all of the beneficiaries you have chosen predecease you, such as then leaving everything to a worthy charity.

The Will must be in Writing In New York, a Will must be a written document. It can be handwritten, typed or printed. It must be signed in front of two witnesses. Only in the rare exception of armed forces and mariners at sea may it be written and unwitnessed or made orally to a witness.

Writing the Will isn’t enough...  Remember, if you die without executing the Will, or if the Will cannot be found, your assets, property and possessions are divided according to state law.  So you need to make sure the Will is properly executed.  You also need to make sure the Will is properly safeguarded and can be found.

“Dying Intestate” even with a Will  Dying intestate means you did not have a properly executed, valid Will in force.  This can be because you never executed the Will…  Or your Will was not properly executed or properly witnessed to make it valid…  Or no one can find the Will…

Proper Execution of Your Will  In New York State, there is a formal process that must be followed to validate your Will.  If the process is not followed, the Will can be invalidated and contested on those grounds.  Let’s look at some possible scenarios….  Signing the Will without witnesses to the signature... Who is to say you signed it?  Witnesses who only saw you sign a piece of paper but cannot verify it was your Will.

Why discuss Execution before the actual writing of the Will? The execution phase of the Will process is so critical that it needs to be emphasized. The world’s best Will is worthless if it has not been properly executed. Execution consists of (i) the formal declaration of the testator (whose Will it is), (ii) the testator’s signature, in front of (iii) at least two witnesses. Competency of the testator and the two witnesses needs to be verified. The witnesses should not be beneficiaries listed in the Will, or their legacies will be voided.

The Formal Execution Procedure In New York, the testator must:  Have at least two competent, disinterested witnesses present;  Declare that the document is his or her Will; and  Sign or make his or her mark at the very end of the Will.

If Your Witness is “Incompetent” An incompetent witness is one whose testimony could be called into question by the probate court. A witness should be over eighteen years of age and not have any mental incapacities that could be questioned. A witness can later become incompetent and this can become a problem if both witnesses have become incompetent and neither executed a “self-proving affidavit”. A self-proving affidavit is a sworn affidavit of a witness testifying to your proper execution of what you declared to be your Will.

If Your Witness is “Interested” An interested witness is one who benefits from your estate, either as a legal heir or a named beneficiary in the Will. An example would be your child, who would inherit if there was no Will and who you would most likely name as a beneficiary in your Will. Your adult child could witness your Will. This would not invalidate your Will. It would invalidate what your child might receive, as your child would then, by law, only inherit the lesser of what the child would receive (x) had you not written a Will and (y) that as a beneficiary under your Will. Solution: choose disinterested witnesses.

Witnessing your Will Witnesses need to actually hear you declare the Will to be your Will, see you actually sign the document (or see you tell someone to sign for you and witness that other person’s signature), and then sign your Will at the end as a witness. Having a third witness is a safety measure. Having the witnesses execute self-proving affidavits at that time saves issues later.

Your Declaration that: the Will is indeed Your “Will” New York State Law requires the testator to “declare” in the presence of the witnesses that the document he or she is signing is indeed the testator’s Will. The witnesses do not need to know the contents of the Will – only that the testator is declaring the document is the Will. So, you need to say “This is my Will.”

Your Actual Signature on the Will The testator is required to sign the Will “at the end thereof”. Signing anywhere earlier in the document has the effect of invalidating anything written after the signature from being part of the Will. The signature must take place in front of the witnesses.

If you Cannot Sign Your Will What if you simply are unable to sign? The law allows that any mark you can make can suffice as your signature so long as the witnesses can testify that you did so. Another person can also sign for the testator in the presence of and upon the obvious and witnessed direction of the testator, but that person cannot be one of the witnesses who also must witness the substitute’s signature.

After you Signed Your Will Where you keep the original of your Will is very important.  It needs to be in a safe place where it will not be destroyed or lost or damaged.  It needs to be easily accessible for your executor to get it.  One option is to put the original in a bank safety deposit box and give a copy to the executor. The executor can then use the copy to gain access to the safety deposit box.

Safeguarding the Will-  Another option is to keep it in a fireproof strong box at home, and advise the executor of where the strongbox is hidden.  One option available to almost everyone is the freezer. If you place your documents in a ziploc bag in your freezer they are fireproof, floodproof, readily accessible and unlikely to be stolen.  You also could go ahead and file the original will with the local Surrogate’s Court, which eliminates the need later for your executor to file it. This filing can be sealed with the Court so the contents are not revealed until your death. All subsequent Wills would then need to also be filed with the Surrogate’s Court.  Each option has its drawbacks, and risks. The safety deposit box can only be accessed during business hours. The fireproof safe could be stolen from the home, or a relative could remove it and destroy the Will. The freezer could be overlooked when the executor needs to probate the Will, or the Will could be inadvertently damaged or thrown out. And even the Court has been known to misfile documents.

Considerations The original of your Will needs to be safe and secure. Identical originals can be executed at the same time and distributed, but this is cumbersome should you want to destroy the Will later. To replace a Will later, one can either revoke the old one in a new Will which then has the new Will govern, or if you want the state laws to distribute your estate, then you would need to destroy the old Wills. By not destroying the old Will, that old Will can still have effect if the new Will is found to be invalid or is lost or damaged to the point of being illegible.

Where you are when you Execute the Will does not Matter In New York, a Will is valid no matter where it is executed if it was executed in accordance with the New York execution procedure. So a person staying in Florida can execute the Will there so long as the procedure has been followed and the Will will be valid in probate court in New York. Just consider though, that witnesses in another location may be need to testify in probate court in New York later if the Will is contested.

Points to Remember Select witnesses who are competent, credible and healthy. Try to select witnesses who have no conflict with benefits from your Will. Have the witnesses execute self-proving affidavits which can later substitute for their live testimony. Select witnesses who will most likely be available years later when your Will is probated, still alive, credible and living locally.

Assessment Time Now let’s consider the requirements of proper execution and safeguarding of your Will: Are you able to have an “execution party” with at least two disinterested and competent witnesses? Are you able to keep your Will in a safe, accessible location that your executor can easily obtain it? If so, then you may well be able to use a standard form of Will from a book or the internet. We will go over what is needed for a basic New York Will later. If not, then perhaps you should engage the services of a lawyer to take care of those arrangements.

Assessment continued  There is no requirement that a lawyer draft your Will. You can use a form off the web or from a book. It can even be a fill-in-the-blank form. If you only need a plain vanilla Will, and can handle the execution and safekeeping issues, then you are a candidate for a simple form. If not, then seeking legal counsel is advisable.

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ucpn United Cerebral Palsy Association of Nassau County, Inc. was founded in 1948 and operates on a 15 acre campus in Roosevelt, Long Island as well as 19 group homes throughout Nassau County. ucpn serves roughly 2,000 children and adults, and their families. ucpn provides services to a broad spectrum of disabilities and injuries. ucpn’s campus enables one-stop shopping for dental, medical, OT and PT services. Funding for these services comes from state programs and more importantly, from individual donors like you. As a charity, ucpn has been highly rated by the Better Business Bureau because more than 90 cents of every dollar raised is spent on programs to benefit those with disabilities.

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