Wills & Estates

Frequently Asked Questions:

Q. Do I need a Will?

A. Everyone should have a Will. In the event someone dies without a Will, the law dictates who inherits that person’s assets. Additionally, if you own something with a title or deed, a Will gives your Executor the legal right to transfer that title or deed.

Q. What is the difference between a Health Care Proxy and a Living Will?

A. A Health Care Proxy designates someone to make health care decisions for you when you can’t make them on your own. A Living Will designates what medical treatment you wish to receive in certain circumstances. To differentiate, if a person were injured in an accident and was in a persistent vegetative state, his/her Health Care Proxy would have the legal ability to make the decision of what medical treatment could be provided to the person. Meanwhile, the Living Will would advise the Health Care Proxy of what medical treatment the person would want.

Q. What is the difference between a Living Will and a “DNR”?

A. A Living Will explains what medical treatment a person wants in the event of an irreversible medical condition. A DNR means “Do Not Resuscitate.” Therefore, a DNR dictates that the person does not want CPR administered in the event the person stops breathing or their heart stops beating.

Q. Who can be an Executor/Executrix?

A. Any United States citizen can be an Executor/Executrix. However, there are some restrictions on a person convicted of a felony serving as an Executor/Executrix. A non-United States citizen can also serve as an Executor/Executrix but must have a co-Executor/Executrix that is a United States Citizen. Also, an Executor/Executrix must be 18 years old or older.

Q. What is a Probate proceeding?

A. A Probate proceeding is the procedure wherein a person’s Will is filed with the Surrogate’s Court and approved by the Court. The proceeding allows for any challenge by a distributee to the validity of the Will. If there is a challenge, the Court will hold a hearing and determine the Will’s validity. If the Will is “probated” then the provisions therein are given full effect. The Court then gives the Executor/Executrix the legal authority to follow the provisions of the Will and distribute the decedent’s assets as he/she directed.

Q. I see Will kits in mail order catalogs and office supply stores. Are these kits acceptable?

A. A Will is a legal document and should be prepared by an attorney and tailored to your personal needs. While the Will kits that are sold may be legal, there is a risk involved in using them. In New York State, there are many formalities in the execution of a Will. If these formalities are not strictly adhered to, the Court will not give legal effect to the Will. A lawyer will make sure that these formalities are met and that the Will has binding effect.

Q. What should I bring with me when I meet with an attorney to prepare my Will, Health Care Proxy, Living Will and Power of Attorney?

A. You should bring with you a list of your assets that are transferable by Will. For example, if you have a family heirloom that you wish to leave to a child, bring a description of that heirloom. Most of the information required for a Will is in your mind. However, it will save a lot of time if you have a list of which individuals you wish to give certain items or assets to.
Also, you should bring with you the names, addresses and telephone numbers of each person you are naming as Health Care Proxy or Attorney-in-Fact. This information will be needed for those documents.

Q. Can I file my Will somewhere?

A. Yes, you can file your Will with the Surrogate Court Clerk in the County in which you reside. Because records filed with the County Clerk are public, Wills are not filed with that office like Deeds or Powers of Attorney. If you wish to file your Will with the Surrogate Court Clerk, the original Will must be placed in a sealed envelope that is endorsed with your name and address and the date it was delivered to the Surrogate Court Clerk.

Q. If I file my Will with the Clerk, how does the Executor get the Will at my death?

A. The Surrogate Court Clerk has a duty to deliver the Will to the Surrogate Court upon the death of the Testator/Testatrix. If you wish the Clerk to deliver the Will to someone other than the Court, you must designate that on the envelope when you deliver the Will to the Clerk for filing.

Q. Is there a fee for filing my Will with the Surrogate Court Clerk?

A. Yes, there is a small filing fee. As of April 1, 2006, the fee could be no greater than $45.00. However, the County can reduce or waive this fee. Contact your local Surrogate Court Clerk to determine the fee in your county.

Q. Do I have to file my Will with the Clerk?

A. No. However, we suggest this as a safekeeping measure.

Q. If I don’t file my Will with the Clerk, what should I do with it?

A. We suggest holding your Will in a fire proof safe in your home. However, you must give someone else – usually the person you named as Executor in the Will – instructions on how to open the safe. We recommend that you do NOT put your Will in a bank’s safe deposit box. If you do this and no one else has the right to enter that safe deposit box, someone will need to petition the Surrogate’s Court to get a Court Order to have the safe deposit box opened. This creates a Catch 22 situation where you need someone to petition for the authority to open the safe deposit box to find out who has the authority to handle your Estate. Then the Will must be probated. Therefore, there would be two applications to the Surrogate’s Court.

Glossary

Issue
Not only a person's children, but also any grandchildren and great grandchildren (i.e., all of the person's direct descendants). Legally adopted children and grandchildren are included, unless the will expressly excludes them.

Per Stirpes
Describes a way that bequests are to be divided among a person's issue. This distribution scheme divides the bequest equally among the person’s children. If a child has died, his/her share is divided among his/her issue if he/she has any issue. For example, presume that you have three children (Sue, Sally and John) and that your Will provides for a bequest to your children per stirpes. If all three children survive you, each would get one third of the property. If, however, John has died, his one third share would be divided among his children if he had any, or if he had no living issue his one third share would pass to Sue and Sally equally.

Lapse
Means that a bequest is to be ignored if the beneficiary is not alive when the bequest is to take effect. In New York, there are is an anti-lapse statute that saves these gifts if they are given to certain classes of persons.

Executor
Refers to the person who is to probate your will, file tax returns, make any discretionary decisions, distribute your assets and handle the paper work for your estate.

Trustee
A person who holds legal title to property “in trust” for the benefit of another person (beneficiary).

Executed
Signed; fully performed or accomplished. For example, when a person formally signs a Will, the Will is deemed “executed.”

Heirs
Persons whom a statute would appoint to receive a person’s property if that person died without a Will.

Guardian
A person who has legal care, custody and control over property or another person.

Testate
If a person dies with a valid Will, that person is considered to have died “testate.”

Intestate
If a person dies without a valid Will, that person is considered to have died “intestate.”

Per Capita
In essence, share and share alike. This distribution scheme divides the bequest equally among all the person’s heirs. For example, presume again that you have three children (Sue, Sally and John) and that your Will provides for a bequest to your children per capita. If all three children survive you, each would get one third of the property. If, however, John has died leaving three children, then Sue, Sally, and John’s three children would share equally, each receiving one-fifth of the property.

Beneficiary
In the context of Wills, this is a person named in the Will to receive property. In the context of Trusts, this is a person receiving the benefit or advantage of the property held in trust. The Trustee then owes a duty to the beneficiary to act in the beneficiary’s best interests when dealing with the Trust assets.

Principal
The person who gives powers to another by way of a Power of Attorney.

Attorney-in-Fact
The person receiving powers by way of a Power of Attorney.

Sample Forms

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Health Care Proxy

Sample Will

Sample Living Will

Sample POA