Mar 30, 2021 New York Last Will and Testament Attorney
It’s a common myth that only the rich need a will or estate planning. Whether you’re a millionaire or a regular Joe, you should have a last will and testament.
What’s the Difference Between a “Will” and a “Last Will And Testament”?
A simple will and a last will and testament are the same thing. It’s a legal document that details when and how your beneficiaries will inherit your property and other assets. A will designates an executor or personal representative who will be tasked with settling the deceased’s final affairs and coordinating all aspects of the probate process pursuant to the will’s instructions.
In addition, a will can name guardians for any of the deceased’s minor children.
The person who has written the will is known as the testator.
What Goes into a Will?
A will is designed to transfer probate assets. This includes items such as:
- Personal property (including the contents of the testator’s home);
- Other household furnishings;
- Cars, trucks, watercraft, and other vehicles (ATVs and snowmobiles) that have title in only the testator’s name;
- Coins, precious metals (gold or silver);
- Furniture; and
- The contents of the testator’s safety deposit box.
In addition, it’s important to understand what type of property should be kept out of a will. This includes the following:
- Property in a trust. A trust is a separate legal mechanism that owns and controls assets. More on that below.
- Assets with named beneficiaries. This includes a life insurance policy, an IRA, 401(k), or pension. These accounts and policies are payable- or transferable-on-death. That means that they are distributed directly to the named beneficiaries. Placing these assets in a will is unnecessary—and potentially a problem. This includes all bank accounts, brokerage or investment accounts, retirement accounts, pension plans, and life insurance policies because each of these has an assigned beneficiary which takes precedence over any distribution instructions for that account in your will.
- Jointly-owned property. This is a property that you jointly own with someone else, such as a home. This asset will pass directly to the co-owner when the testator dies, so it shouldn’t be placed in a will. A common way to hold jointly owned property is joint tenancy with rights of survivorship.
What’s the Difference Between a Will and a Trust?
As mentioned earlier, a will is a written document that contains the deceased’s wishes for the distribution of his or her assets.
A trust is a separate and distinct means of estate transfer. A trust creates a fiduciary relationship where the trustor (a/k/a “settlor”, or “grantor”)– the person creating the trust) gives another party (the trustee) the authority to control assets for the benefit of a third party (the beneficiaries). A trust can be created for many purposes. Also, there are many different types of trusts.
Note that a will becomes active only after the testator’s death. In contrast, a trust is active the day it’s created. A trustor is able to lay the groundwork for the distribution of assets before his or her death in a trust; that’s different than a will.
Wills must go through a legal process called probate in New York Surrogate Court. This is where a court examines the will to make certain that it’s valid before any action is taken. However, trusts are not required to go through the probate process, or any review protocol when the grantor dies.
Do Attorneys Keep Copies of Wills?
In many cases, if the law firm has written and executed a will for a client, the client will ask the firm to hold on to the Will in the original, for safekeeping.
An experienced estate planning attorney has the resources to keep the original will safe and in a location where it can be readily accessed when needed. In addition, since the attorney wrote the last will and testament, he or she has some knowledge of the testator and may be able to help probate the testator’s estate, upon the testator’s death.
How Much Does an Attorney Charge for a Will?
That answer really depends on the complexity of the testator’s estate.
Do I Really Need a Lawyer to Prepare A Will?
Legally, you aren’t required to hire an attorney to draft your last will and testament.
If you’re tempted to try to do this on your own—without the assistance of an experienced New York estate planning attorney—remember that if you make a serious mistake that runs contrary to the rules and regulations spelled out in the Estates, Powers and Trusts Law (EPTL), and the Surrogate’s Court Procedure Act (SCPA) in New York, it could result in substantial added expense, delay, heartache, and frustration for your family and heirs. Much litigation grows out of wills that are not drafted, and whose execution is not supervised, professionally.
Also, if you have a child with special needs, a blended family, or want to have more say on how and where a beneficiary spends the funds left to him or her, a generic approach won’t be enough. Instead, you should do the responsible thing, and partner with an experienced estate planning attorney in New York. Their work for you and your family will provide you with cost and tax savings, and the peace of mind that you richly deserve.
Contact an Estate Planning Attorney for New Jersey, White Plains and Westchester
Our firm’s principal partner, Ely J. Rosenzveig, has over 30 years of estate planning experience. He and his team of skilled attorneys are ready to help you create a comprehensive estate plan that’s tailored to your specific situation.
Call us at (914) 816-2900 or email [email protected].