Wills are the most common way for people to state their preferences about how their estates should be handled after their deaths. A well-written will eases the transition for survivors by transferring property quickly and avoiding many tax burdens. Wills vary from extremely simple single-page documents to elaborate volumes, depending on the estate size and preferences of the person making the will (the "testator"). Wills describe the estate, the people who will receive specific property (the "devisees"), and even special instructions about care of minor children, gifts to charity, and formation of posthumous (or after death) trusts.

Will Requirements:

Formal requirements for wills in New York are as follows: the testator must be an adult of sound mind (which means that the testator must be able to understand the full meaning of the document); wills must be written; wills must be signed by the testator by his or her own will (unless he or she is unable to do so then the testator must direct another person to sign the will in the presence of witnesses) and the signature of the testator (or the person directed) must be witnessed and/or notarized. A valid will remains in force until revoked or superseded by a subsequent valid will. Some changes may be made by amendment (called a "codicil") without completely rewriting it.

In New York disinheritance of spouses or dependent children is not permitted. A married person cannot completely disinherit a spouse without the spouse's consent, usually in a pre-nuptial agreement. A surviving spouse has a right of election, which allows the spouse to take a legally-determined percentage (up to one-half) of the estate when he or she is dissatisfied with the will. Non-dependent children may be disinherited, but this preference should be clearly stated in the will in order to avoid confusion and possible legal challenges.

Property owned in joint tenancy may only go to the surviving joint tenant. Also, pensions, bank accounts, insurance policies and similar contracts that name a beneficiary must go to that person.

Appointing a Representative:

A will usually appoints a personal representative (or "executor") to perform the specific wishes of the testator after he or she dies. Although testators typically choose a family member or close friend, it need not be a relative. The chosen representative should be advised of his or her responsibilities before the testator dies, in order to ensure that he or she is willing to undertake these duties. The personal representative consolidates and manages the testator's assets, collects any debts owed to the testator at death, sells property necessary to pay estate taxes or expenses, and files all necessary court and tax documents for the estate.

Testators who have minor or dependent children may use a will to name a guardian to care for their children only if there is no surviving parent. If a will does not name a guardian, a court may appoint someone not necessarily a choice of the testator.

The Effects of Dying Without a Will:

If a person dies without a valid will and did not make alternative arrangements to distribute property, survivors may face a complicated, time-consuming, and expensive legal process. Dying without a will leaves an estate "intestate," and a probate court must step in to divide up the estate using legal defaults that give property to surviving relatives. The court pays any unpaid debts and death expenses first, then distributes the property of the estate based on legal guidelines. The rules vary depending on whether the deceased was married and had children, and whether the spouse and children are alive. If the intestate individual has no surviving spouse, children, or grandchildren, the estate is divided between various other relatives and if there are no other relatives, then the estate goes to the state. In addition, dying without a will imposes hefty tax burdens on the estate.

Types of Wills:

Simple will - A will that just provides for the outright distribution of assets for an uncomplicated estate.
Testamentary trust will - A will that sets up one or more trusts for some of your estate assets to go to after you die.
Pourover will - A will that leaves some of your assets in a trust that you had already established before your death.
Joint will - One document that covers both a husband and wife (or any two people). These are often a big mistake and are especially inadvisable for estates larger than $675,000.

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