Wills And Trusts FAQs
Should I Have a Will?
While New York has no requirements that you prepare a will, we highly recommend that every adult have one prepared. A will expresses your wishes regarding the distribution of everything you possess. When well-drafted, it also makes for a more orderly process when it comes to distribution of your belongings.
A will also serves a number of useful purposes concerning your family. It allows for you to appoint a guardian to care for your young children, and you can add provisions concerning other individuals you care for.
If you do not have a will, your estate will be distributed according to the intestate process. This means that a probate court will make determinations regarding distribution of your estate.
What Kind of Will Should I Draft?
Under New York law, you have a number of options regarding the drafting of the instrument. You can draft a simple will for distributing assets through a straightforward process, or complex wills used in coordination with specific trusts.
Correct drafting of the will is vital, however. A poorly drafted will may result in will contests and costly litigation. Property requires correct designation, the laws require compliance, and the language of the will needs to be clear. Mistakes in the drafting of the will can result in invalidation of specific provisions or the entire will. We suggest you speak to an experienced wills lawyer to discuss all of your options.
Can I Change or Revoke a Will?
So long as you are competent to make determinations regarding your estate, you can also make changes to the will or have the entire instrument revoked. You can change it with a codicil, which is a type of document that amends the will. However, to revoke the will, you must actually destroy it.
What Is Probate?
In the simplest terms, probate is a legal process to determine the validity of a will, and providing a legal and orderly means for distributing of estate assets and the paying of outstanding taxes and debt whether or not there is a legal will.
Probate occurs in the county probate or surrogate court where you legally resided. However, out-of-state property and assets you own will be covered under that state’s laws.
What Is a Trust?
A trust is an instrument prepared by you that allows another individual known as a trustee to hold assets on behalf of your beneficiaries. In certain instances, you can create a trust to hold assets that will be shielded from probate. Use of a trust potentially reduces estate expenses and taxes.
There are many kinds of trusts including revocable and irrevocable trusts. You can also create special needs trusts to meet the needs of your heirs. You can also include spendthrift provisions in a trust directing the manner that assets of the trusts will be spent as long as the trust is in force.
Is There a Way to Shield Assets From Probate?
Sometimes you can place assets in a trust to avoid the probate process. However, the laws regarding shielding of assets in New York are highly complex. To make certain that such a trust is valid and prepared correctly, it is strongly advised that you speak to an experienced estate planning attorney who understands New York probate laws and who routinely drafts wills and trusts of all types.