FREQUENTLY ASKED WILLS QUESTIONS
WHY DO I NEED A WILL?
A will helps ensure that your personal belongings and assets go to the family, friends, or other beneficiaries you pick. If you have children, you need a will to choose your children's guardian. Having a will may result in potential tax benefits and may help avoid costly court battles.
If you pass away without a will, the state decides how your personal belongings and assets are allocated, without regard to your wishes or your heirs' needs.
Making a will is especially important for people with young children, because wills can transfer guardianship of minors.
You may change your will at any time. In fact, it is a good idea to review it periodically and especially when your marital status changes. At the same time, review your beneficiary designations for your 401(k), IRA, pension and life insurance policy since those accounts will be transferred automatically to your named beneficiaries when you die.
A will is also useful if you have a trust. A trust is a legal mechanism that lets you put conditions on how your assets are distributed after you die and it often lets you minimize gift and estate taxes. However, you still need a will since because most trusts deal only with specific assets such as life insurance or a piece of property, but not the sum total of your holdings. Even if you a revocable living trust, you still need a “pour-over will” to ensure that all the assets you intended to put into the trust are included, even if you fail to retitle some of them before your death. Any assets that are not retitled in the name of the trust are considered subject to probate court.
IS A HANDWRITTEN WILL VALID?
A handwritten will is called a “holographic will”. New York recognizes handwritten wills only in there very limited situations:
By a member of the armed forces of the United States while in actual naval or military service during war or other armed conflict in which members of armed forces are engaged.
Person who serves with or accompanies an armed force engaged in actual military or naval service during such war or armed conflict
Mariner while at sea
To be accepted as a handwritten will, the making of the will must clearly be established by two witnesses.
DO I NEED TO FILE MY WILL IN COURT?
In New York you are not required to file your will with a court or public record during your lifetime.
CAN I DISINHERET SOMEONE?
Depending on who it is you wish to disinherit, the answer varies. In New York, you may leave your spouse out of your will, but unless you have signed a valid prenuptial or postnuptial agreement your spouse will be entitled to what is called the “elective share”.
In New York you may disinherit your children or any other relatives. To ensure that it is clear that you are intentionally disinheriting an individual it helps to state this in your will so there can be no question about what you intended.
CAN I CHANGE OR REVOKE MY WILL?
You can make changes to, or revoke your will at any time. There are, however, some important rules to follow.
One way to change your will is to make a codicil, which is an amendment to your will. Another way is to make an entirely new will which revokes and takes precedence over any and all older wills.
A codicil is a separate document and must be signed and witnessed the same as a regular will or it will not be honored. Because of these requirements, it is generally easier just to make a whole new will.
It is important not to make any markings on your will once it has been witnessed and signed. This is absolutely vital. If you cross out a name or add any other writings to a will that has already been signed, you risk making the whole will invalid.
To revoke a will without making a new one all you have to do is intentionally tear it up, deface it, or otherwise destroy it. If this occurs accidentally, you will is not invalidated.
WHY DO A NEED A LIVING WILL, HEALTH CARE PROXY OR ADVANCED HEALTH CARE DIRECTIVE?
Documents known as "living wills, "health care proxies," or "advance health care directives" let you make your wishes as to medical treatment clear, and to appoint someone to communicate for you in the event you cannot communicate for yourself.
With the increasing ability of medical science to sustain our lives, people are living much longer and healthier lives than ever before.
Nonetheless, we may find ourselves in a position where we cannot speak for ourselves yet crucial decisions regarding our medical care need to be made. This unfortunate situation may arise at any time as a result of accident, injury, or illness.
A living will is different from a traditional will. It is actually a directive for your healthcare if end up incapacitated. It directs doctors regarding your wishes, if you cannot speak for yourself, regarding what types of care and intervention you want done.
For example, many patients who have a terminal illness have a do not resuscitate order in place, because once they pass away they do not want the doctors and nurses to do CPR or take other measures to bring them back to life. A living will simply explains what you want done. Alternatively, if you prefer not to be taken off of life support, you can put that in your living will.
A living will allows you to make these important choices ahead of time. The living will can help your loved ones know the course of action you want should you end up in a serious medical situation. This can reduce a lot of the guilt and potentially minimize arguments regarding you care and treatment when loved ones are are faced with making difficult medical decisons on your behalf.
A health care proxy (also known as "health care power of attorney") is a document that authorizes a specific person to make medical decisions on your behalf if you end up incapacitated.
When health care proxy and living will documents prepared together they may be referred to as an "Advance Medical Directive."