Common Problems with Wills, and How To Ensure Yours is Valid in New York State.

Lets face it-once you are gone, you cannot come back and explain what you did in your will and why you did it. The goal is to make a bulletproof will that will save your family heartache, the stress of court proceedings, time, and money. There are certain key points to follow to ensure this.

First, if your will is not validly executed, the will is ineffective. You will be deemed to have died intestate, thereby giving up your right to distribute your assets as you wish. Therefore, it is very important to make sure that your will has been properly executed. In New York, this requires certain formalities, which include your signature and the signature of two disinterested witnesses.

Second, you should explain in your will what you are doing and why you are doing it. If you make a peculiar bequest, one that you know your family will fight about down the line, it is helpful to explain why you did this and your intention behind it. This will ward off most claims of undue influence or lack of capacity. At times, I have advised people to leave a separate letter drawn in your own hand explaining things.

Third, you should appoint an executor that you trust. An executor follows the instructions contained in your will and winds up all of your affairs after your death. Additionally, this is a person who can bring a claim on the behalf of your estate should you have one after your death. You want to choose someone reliable and easily accessible to the surrogate courts in your area, like Dutchess, Ulster, Rockland, Westchester, Putnam, or New York City.

Fourth, you may consider using a no contest clause. This is basically a clause that will give someone a gift from your estate on the condition that they do not contest the will. If they do contest the will and lose, they automatically forfeit the amount they were bequeathed under the will. Generally, you will want to make this a fairly substantial amount-so it really works as a deterrent to contesting your will.

Fifth, make sure to account for all possible situations upon your death. The main reason for having a will is to distribute your assets as you please. Not considering all of your options can result in your estate being distributed contrary to your intentions. We will ask the hard questions to ensure all possible scenarios are addressed, but you should, at the very least, consider how you would like your estate distributed in the event someone in your will dies before you, and you need to be clear with us who and why you are doing what you intend to do. If a beneficiary of your will dies before you, to whom do you want this bequest to go to? Often times, drafters in this situation use conditional phrases like “if . . . then . . .” to correctly convey the testator’s intention.

Sixth, always keep your will up to date. Consider this scary, but real, example in New York: If you bequeath your house at 74 Smith Street to your child, then you move to another house at 80 Charles Street, and you do not update your will to provide for this, your child will not take your house under your will. If the house is not otherwise disposed of under the will, that piece of property will be disposed of through intestacy. This means that the house will be distributed as if you died without a will.

And lastly, always make sure to follow the rules. New York takes a very “hardnosed” approach for most things under the EPTL. You want to make sure that everything you do is done in accordance with the prescribed formalities. This is not an area you want to take into your own hands-get a knowledgeable attorney, as one misstep can change how all of your assets are distributed.

Bottom line– without a will, your assests may not go where you intend.