Writing a last will and testament is one of the most fundamental aspects of estate planning. While most people know that writing a will is important, a shocking number of people do not consider important aspects of the will-writing process before they begin planning their estate. Here are five things you should have in mind before you begin writing your will:
- Who are your heirs?
When you write your will, there are two kinds of heirs you need to worry about. The first are the people you intend to inherit your property, who stand to benefit if your will is carried out as written. The second are the people who would inherit if you were intestate (in other words, if you die without a will), which primarily includes your closest living relatives. For many people, these two groups will have a large amount of overlap, but not everyone wants all of their family members to inherit their property, and some people may want someone who is not blood-related to receive some of their property. Making sure you spell out who you want to inherit is thus essential for avoiding conflicts over your will later.
- What is your property?
It seems like it should be simple to know what you own, and thus what you can pass down to others through your last will and testament. And for people who do not own a great deal of personal property, it might be relatively simple. However, people with complex financial holdings and people with significant personal property (including a family home or car) can often omit important assets from their will, leaving those assets to fall into intestacy. This can make the process of dividing your property much more complicated, as the court is forced to divide the intestate property on your behalf.
- Who can act as witnesses?
By New York State law, every will signing must be witnessed by a minimum of two disinterested witnesses. A witness is considered disinterested when they do not seek to inherit under your will, either because you named them as an heir or because they would inherit if you died intestate. This means your witnesses cannot be family members, and they cannot be anyone who is set to inherit under your will. Additionally, if your will is contested, your witnesses may be called to testify about the validity of your will, so make sure they are people you can trust to tell the truth on your behalf.
- What happens if someone contests your will?
While many people do not need to worry about their loved ones fighting over their will when they pass away, the fact is that our family members and other heirs have a lot to lose if an inheritance does not turn out as expected. Given the stakes that can be involved, you should make sure to use steps to avoid having your will contested. For example, you may want to include a “no-contest” clause, which will disinherit anyone who unsuccessfully contests your will. That will not stop all the fighting, but it will at least make anyone who wants to contest your will think twice before filing a lawsuit.
- Is your will up to date?
Even if you already have a will in place, you should think about whether your will is up to date. Many people take a “set and forget” approach to their estate planning, which causes their wills to slowly go out of date as they gain and lose properties and as their relationships with others change. Thus, even if you already have a will in place, you should think about writing a new will, just to make sure there are not any problems when it comes time for your will to be executed.
The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.
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