The most basic of all estate planning documents is a Last Will and Testament. For most people, that means a Will serves as the foundation for their larger, comprehensive estate plan. Although the basic concepts associated with a Last Will and Testament are relatively simple, there is plenty of room for errors when creating and executing a Will. To eliminate the possibility that you will make an error when you create and execute your Will it is best to have an experienced New York State estate planning attorney draft your Will for you.
Choosing an Executor
Most people think of making gifts of estate assets when they think of creating a Will. While that is certainly part of the process, one of the first, and most important, decisions you will make when creating your Will is who to appoint as the Executor. Ultimately, your choice of Executor can contribute to the success, or cause the failure, of your overall estate plan. With that in mind, choose wisely. To help you make the right choice, consider some of the many duties and responsibilities your Executor will have during the probate of your estate:
- Opening probate by petitioning the appropriate court
- Identifying, locating and valuing all estate assets
- Securing and managing estate assets for the duration of the probate process
- Identifying and locating beneficiaries and heirs of the estate
- Notifying creditors of the estate
- Reviewing and approving/denying creditor claims
- Paying creditor claims
- Selling estate assets if the estate lacks sufficient liquid funds to pay creditor claims
- Defending the estate against challenges, such as a Will contest
- Preparing and paying all taxes owed by the decedent and/or the estate
- Preparing all documents necessary to transfer the remaining assets to the intended beneficiaries and/or heirs of the estate
Nominating a Guardian
Another, even more important decision you will make when creating your Last Will and Testament is who to nominate as a Guardian for your minor children. In the event a Guardian is needed, a judge must officially appoint one. Although the judge has the ultimate say, if you nominated someone in your Will the judge is likely to take the nomination seriously and generally appoint your choice unless there is a very good reason not to do so. Keep in mind that your Will is the only opportunity you will have to nominate a Guardian.
Making gifts to beneficiaries is what most people think of when the envision creating a Will. A beneficiary can be a person, an entity (such as a church, a business, or an organization), or even the family pet. Gifts you make in your Will can be specific bequests, such as gifting your baseball card collection to your sister Joan, or general, such as gifting 50 percent of your estate to your brother Bob. As long as the gifts you make in your Will are legal, the law is required to follow your wishes and uphold those gifts as you dictated them in your Will.
Alternatives to a Will
Though you can choose to use your Will to dispose of your entire estate, you are not required to do so. In fact, many people choose to use a trust to make the majority of their estate gifts. There are several reasons for this, primary among them the fact that assets held in a trust are not required to go through the probate process whereas gifts made through your Last Will and Testament do become part of the probate process. Assets that must go through probate can be held up in the process for months, even years, making them inaccessible to the intended beneficiaries during that time. Another reason using a trust is often preferred is that the terms of a trust are not considered public information whereas a Will must be submitted to the probate court making it part of a public court file.
If you have any additional questions or concerns regarding your Last Will and Testament, or if you wish to get started on yours, please contact the experienced New York estate planning attorneys at The Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
- “Last Will and Testament” Origin - April 1, 2021
- Do I Need a “Durable” Power of Attorney? - April 2, 2020
- Joint Tenancy Pros and Cons - March 31, 2020