You probably know that a last will and testament is a legal document that provides instructions for settling a person’s estate after that person’s death. In western New York, have your last will and testament prepared by a Rochester estate planning attorney at Kelly White Donofrio.
It doesn’t matter if you are affluent, modest, or even if you’re poor. When the time comes, if you do not have a will, the state – instead of you and your family – determines how your estate (your properties, possessions, and assets) is divided and distributed under the state “intestacy” law.
This law gives your estate to your immediate family, starting with your spouse and your children. If you do not have a living spouse or living children, your parents or grandchildren are next in line, and the list moves through more distant relatives like cousins, nieces, and nephews.
When Do You Need To Create A Will?
However, if you want someone other than your spouse and children to receive any of your assets, you need to create a last will and testament. If you have no will, and if a court finds no living relatives by blood or through marriage, the State of New York receives your estate.
Don’t even consider using an online or pre-printed “do-it-yourself” will “kit.” It’s easy to make a mistake, and a great deal will be at stake. Working with a New York attorney who has substantial experience writing wills is the wisest move you can make.
What Is A “Self-Proving” Will?
When your will is finalized, you must sign it in front of two witnesses, and the two witnesses must also sign it (within thirty days) in front of you. New York does not require your will to be notarized, but you’ll need to have an attesting witness affidavit notarized if you want it to be “self-proving.”
A self-proving will moves faster through the probate process because the courts accept the will without having to locate the two witnesses who signed it.
In your will, the State of New York allows you to name an executor for your estate, someone who will see to it that your instructions and provisions are carried out according to your wishes. If you don’t name an executor, the probate court will appoint someone.
Can I Change Or Revoke My Will?
In New York, you may revoke or change your will at any time. You may revoke your will in these ways:
- creating a new will
- creating a new document in front of two witnesses that says you are revoking your will
- destroying or having the original will destroyed in front of two witnesses
If your will needs changes, the best way is revoking your current will and creating a new one. If the changes are minor or trivial, you may add a “codicil” – an amendment to the existing will. .Either way, you must adhere to the same process you used when creating your original will.
What Is Probate And How Does It Work?
After your death, your will is presented to a probate court. Probate is the legal process where a judge approves the terms of the will and the assets are distributed to the beneficiaries once your debts have been satisfied.
In New York, the probate process takes place in the “Surrogate’s Court” in the county where you resided at the time of your death. Only estates valued above $30,000 must be probated when there is a will.
The court will conduct what is called a small estate proceeding when the estate is valued at under$30,000. Estates without wills are “administered” rather than probated. Some assets with named beneficiaries, like bank accounts and life insurance policies, aren’t subject to the probate process.
What Are An Executor’s Duties?
In the probate proceeding, your executor files a petition in the Surrogate’s Court with the original copy of your will. The petition includes the date of death, the names of the beneficiaries, and the estimated value of the estate. All potentially interested parties are notified about the proceeding.
In New York, executors of estates may be paid for their work based on the estate’s value. Executors are responsible for:
- finding and inventorying your property and moving it into the estate
paying off your taxes, bills, and any other debtscollecting any debts owed to your estate
- managing your estate during the probate process
- distributing your assets to your beneficiaries at the conclusion of the process
A probate judge ensures that your will was properly signed, witnessed, and executed, that you were of sound mind at the time, and that no undue influence was placed on you when you created and signed the will.
Why Do Some Estates Take Longer To Resolve?
It’s extremely rare for any estate to take more than a year to resolve. If an estate takes more than a year to settle – and that’s unusual – it’s probably for one of these three reasons:
- Family disputes: When siblings disagree about dividing a parent’s assets, or if another relative challenges the will, the dispute may have to be resolved in court. A dispute will mean a longer, more costly probate process.
- Taxes: Fewer than one in every two hundred estates owe federal taxes, but if an estate owes federal taxes, it can’t be settled until the estate tax return is due, nine months after the death. More complex estates can receive an extra six-month extension.
- Income coming in: The estates that take the longest to resolve are the estates of deceased celebrities who continue earning income after their deaths. Disputes over the estates of figures like Michael Jackson can drag out for years.
How Will Kelly White Donofrio Help You?
No one, of course, knows what tomorrow will bring, but as long as you are living, it is never too late to create a last will and testament. A Rochester estate planning attorney at Kelly White Donofrio can help you create the will that’s right for you and your family.
A simple will is easy to create, and it’s affordable for almost everyone. We can also help you update and revise your will if it hasn’t been reviewed recently.
We represent clients in the Rochester area and across western New York. To learn more about creating a last will and testament, or to begin the process, call Kelly White Donofrio at (585) 232-1415.