Frequently Asked Questions

What is a Will?  | Listen to Audio Recording here –> 

What is a Beneficiary?  |  Listen to Audio Recording here –> 

What is an Executor? |  Listen to Audio Recording here –> 

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What is a Will?

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A Will is a legal document that specifies what you, the Will-maker, wants done with your property and other assets after your death. It allows you to provide for loved ones you leave behind and give your assets and possessions, including your home, to specific people and organizations according to your wishes.


What are the Important Parts of a Will?
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Although every Will can be different, these are the important sections that will generally show up in a Will. We strongly encourage having an attorney help draft your Will to ensure that your wishes are accurately and fully recorded. There are specific procedures that must be followed for your Will and its provisions to be considered legally valid in New York State.

      • Naming Executors:
        In this section, the testator (Will-maker) names their Executor(s) (a person or institution put in charge of your estate after death). This section should be as specific as possible to ensure that it is clear who you want to be your Executor. For more information about choosing an Executor, please refer to our section on Executors
      • Naming Beneficiaries:
        This section will name the individuals, organizations, and institutions who are to receive a part of the estate under the Will. As with the naming of Executors, this section should be very detailed to ensure there will not be any confusion about who your Beneficiaries are. Hopefully, all Beneficiaries will be aware that they will be Beneficiaries of your estate and will be prepared to receive their portion. For more information about choosing Beneficiaries, please refer to our section on Beneficiaries
      • Naming Assets and Possessions:
        As a general rule, everything that you have not given away before your death will become a part of your estate. Therefore, your Will must be specific about what you want to leave to each Beneficiary. Wishes that you express outside your Will – either orally or in a letter, for example – will not be honored. That is one of the many reasons why creating a Will is so important! Having a complete and detailed inventory or list of your assets and possessions will be very helpful when drafting this section.
      • Bequests – What You are Giving Away:
        In this section, you (the testator) will give (or “bequest”) part of your estate to the Beneficiaries named in the Will. Again, having a complete and detailed inventory of your assets and possessions will help you be specific about which assets should go to which Beneficiaries. This section can often be confusing and unexpected conflicts or scenarios may arise, so we strongly recommend speaking to a lawyer about your complete Will.
      • Funeral Arrangements:
        Although you may be tempted to include funeral arrangements in your Will, doing so is not recommended. The process of executing a Will usually does not begin until after a funeral has already been held. If you have specific funerary wishes, we recommend writing those down and giving those directly to a loved one, or someone else you trust to make sure your wishes are followed. The Executor of your Will is responsible for keeping a record of your funeral expenses.
      • Signatures:
        In this section, you, anyone preparing the Will for you (such as an attorney), and the witnesses will sign and date the Will. In most states like New York, there must be two witnesses to sign the Will, although some states require more. In New York please remember that your Beneficiary cannot be your witness. Best practices also suggest that your witnesses sign your Will before a notary public, and fill out a “self-proving affidavit” with the notary as part of the execution ceremony.


    What is Considered an Asset and Possession?
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    The best way to start making a Will is to make a list of all of your property. You can consider your assets and possessions to be your property; a home, car, jewelry, artwork, personal items, etc. Property distributed according to your Will is considered “probate.” However, not all property may be distributed through your Will, such as property held in joint tenancy with right of survivorship, or accounts with paid on death Beneficiaries.

    What About Minor Children?
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    A Will may be used to appoint a guardian for minor children. If you have a spouse, you should make sure you and your spouse appoint the same person to be guardian of your minor children, should you both pass. In addition, a Will may appoint a guardian to care for property that you intend to give to minor children. New York law prohibits a child under the age of 18 from taking control of property, so it is important to appoint someone to manage the minor’s assets.

    Do I Need Someone to Write my Will for Me?
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    It depends. Most Wills are drafted with the help of a lawyer, either to help write the document or to review it once it is written. However, we strongly encourage having a lawyer assist you to ensure that proper procedure is followed and your wishes are being accurately represented.

    How Often do I need to Update my Will?
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    If you’ve successfully drafted a Will at this point, congratulations! You have taken a very large step in ensuring that your legacy will be carried on in the way that you want.

    However, estate planning should not end here. A Will reflects the wishes and assets of the testator (Will-maker) at the time of the writing, but circumstances may change as time passes. You may want to change your Beneficiaries, keep or donate different assets, or perhaps you’ve acquired more assets or possessions that haven’t yet been accounted for in your Will. To decide when to revisit your Will, you may want to ask yourself the following questions:

            • Have I changed my mind about who I want receiving my assets or possessions?
            • Have I thought of new Beneficiaries that I want to receive part of my estate?
            • Have I changed my mind about how I want an asset or possession to be treated once I am gone?
            • Have the circumstances in my life changed in a way that is relevant to my Will?
            • Are all my Beneficiaries ready to accept parts of my estate?
            • Do the organizations that have agreed to accept a gift still exist today?
            • Has the price of an asset changed significantly (such as a house or car), creating unwanted tax burdens on some of my Beneficiaries?
            • Have I gone through a divorce or separation?
            • Have any of my Beneficiaries passed away? Have new ones been born?

     

    If one or all of these circumstances apply, you may want to consider revisiting your Will to make the necessary changes. Even if none of these circumstances apply, we recommend revisiting your will periodically to make sure you are comfortable with the way your estate will be distributed.

    What Happens if I Don’t Have a Will?
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    If you pass on without a Will, then your estate passes to your next of kin in accordance with state law via intestacy. In New York, this would ordinarily be your spouse; but if you are unmarried, then it would pass to your children. If you do not have children, then your estate passes to your parents; then siblings; and so on. If you have no living relatives, your estate may escheat to the State of New York, meaning the State acquires title to your property.

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    What is a Beneficiary?

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    A Beneficiary is a person or organization that you designate to receive your assets or possessions upon death. You can name more than one Beneficiary. Beneficiaries are often children, grandchildren, a spouse, partner, other family members and friends, or even organizations, but it can be whoever you wish. It is important to note, however, that naming a Beneficiary does not require them to accept your gift. Consider whether it makes sense to contact potential Beneficiaries in advance, especially charitable organizations, to make sure your gift is welcome.

    Why is it Important to Name Beneficiaries?
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    Naming Beneficiaries helps you control your legacy. It allows you to decide who will get what, and also provides for your loved ones by dividing your assets and possessions according to your wishes.

    Won’t my Assets and Possessions go to my Spouse/Child anyway?
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    Not necessarily. If you pass on without a Will, that is called dying intestate. When this happens, your property (assets and possessions), will be divided among your immediate family – that means your spouse, children, grandchildren, great-grandchildren, etc. If you have a spouse that survives you, they will receive the first $50,000 of your estate. The rest of your estate will be divided between your spouse and other immediate family members according to a predetermined formula over which you have no control.

    How do I Decide on Beneficiaries?
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    There may be many different factors to consider when deciding who to name as your Beneficiaries:

        • In general, who do you want to receive your assets when you are gone?
        • Do you want to keep particular assets within your circle of friends or family?
        • Will the Beneficiary properly care for the asset you are giving them?
        • Would you like the asset sold to provide income to family members or friends?
        • What are the income and estate tax consequences of choosing one Beneficiary over another? Depending on the amount of your estate, there may be tax consequences. Please consult with a tax professional.

     

    You may decide that you want some assets sold and for the proceeds of the sales to go to your Beneficiaries. If so, you have full power over which assets are sold and which Beneficiaries receive money. It is important to remember that the value of your assets, such as a house, may change over time.

    What can I do for my Beneficiaries?
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    By naming Beneficiaries, you are creating a plan to ensure that your assets and possessions are distributed according to your wishes. In this process, you should not only consider who to name as Beneficiaries of your estate, but also what you would like them to receive. It’s helpful to be as specific as possible when you are assigning items to beneficiaries. If your Will is not specific, the Executor will decide how to distribute your assets and possessions.

    Consider whether it makes sense to discuss your estate plans with your Beneficiaries. For example, some Beneficiaries may not want the responsibility of a house, car, pet, or other asset. Some Organization-Beneficiaries may not accept your gift without a previously negotiated agreement. Make sure your beneficiaries understand your wishes, and that you understand their concerns as well. Communicating your thoughts and wishes to your potential Beneficiaries before you pass will help you choose the right individuals and organizations to take from your estate. This will help them to understand your wishes fully to prevent future complications.


    What are the Legal Rights and Obligations of my Beneficiaries?
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    A Beneficiary does not have any obligation to accept any part of your estate. Therefore, while you may want to name specific Primary Beneficiaries to receive parts of your estate, it is a good idea to also name Successor Beneficiaries or allow your Executor to choose Successor Beneficiaries in the event that the Primary Beneficiary does not accept the gift.

    Your Beneficiary should not be a witness to the signing of your Will. Doing so may disqualify that Beneficiary from receiving any part of your estate.

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    What is an Executor?

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    An Executor is the person or institution you name to be in charge of your estate after your passing. The Executor’s job is to carry out the instructions in your Will, such as paying your funeral expenses and distributing your assets to your Beneficiaries.

    Are Executors Paid?
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    This is up to you, but we strongly suggest that you add an instruction in your Will providing compensation for your Executor. It can be a long, tough job, and you want to make sure it is done right. You can set aside an amount of money for the Executor, grant them a percentage of the estate, or pay them by the hour. Executing an estate is hard work, so providing compensation for your Executor may encourage them to take on their responsibilities of managing your estate. It is also a good idea to discuss this payment with the Executor when drafting the Will.

    Who Should I Choose as my Executor?
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    This is entirely up to you. Try to think about who will be in the best position to do the work when the time comes. Executors generally need to be organized, thoughtful, and thorough. Do not just think about who has the skills — think about whether emotions or responsibilities will make the job too hard. Pick a person who you trust, and who will be trusted by the Beneficiaries. A mutually trusted Executor can help to avoid possible court battles between the Beneficiaries of your estate.

    Can I Name Anyone as my Executor?
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    Almost. Executors do not need any formal qualifications. They do not have to be a lawyer or an accountant, and they can get further assistance with complicated aspects of the estate from those professionals if needed. Executors cannot be minors or felons, and Executors must be United States citizens or residents of New York. A New York State probate court may also reject a potential Executor due to substance abuse, dishonesty, lack of understanding, or inability to read and write in English.

    Can I Name One of my Beneficiaries as my Executor?
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    Yes. Many people do, especially if there is only one Beneficiary, such as an only child or a widow/er. As mentioned above, do not just think about who has the skills — consider whether emotions or responsibilities will make the job too hard for them. Consider whether naming a Beneficiary and Executor as the same person might cause some conflict or put an emotional burden on them.

    Can I have Multiple Executors?
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    Yes. This may be a good idea if you think one person might better handle the finances of the estate, while another person might be better able to manage other assets or possessions. However, we discourage the naming of multiple Executors because of potential conflicts or inability to act together because of physical distance. If you do decide to have multiple Executors, it is important to make it clear in the Will which responsibilities each Executor is responsible for.

    What are the Responsibilities of an Executor?
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    An Executor has a “fiduciary duty” to the estate. This means they must act in the best interests of your estate. The Executor’s duties can range from the immediate, such as notifying the proper government agencies, banks, creditors, and credit reporting agencies of your death, and securing personal possessions, to managing assets for Beneficiaries until a specific time in the future. In extremely rare cases, involving theft or failure to perform the instructions in the Will, the Beneficiaries can sue the Executor. You can try to avoid that by choosing an Executor who is trusted, organized, and responsible.

    Can I Name an Alternate Executor?
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    Yes. An Alternate Executor can execute your estate if the original Executor predeceases you, is unwilling to serve, or is otherwise unable to accept the role. Naming an alternate may be a good idea if you are naming a spouse, an older person, or if you are not sure whether your named Executor will be emotionally or otherwise capable of handling your estate when the time comes. Naming an alternate Executor rather than multiple Executors is a good way to ensure that someone is responsible for your estate, without risking two Executors disagreeing over their responsibilities.

    Can the Person I Choose Refuse to be my Executor?
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    Yes. That is why it is important to consider paying them fairly and naming an Alternate Executor.

    What Should I Tell my Executor When Drafting my Will?
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    Think about what they will need to know when the time comes, such as the location(s) of your Will and your assets and possessions. It is a good idea to leave detailed instructions about safety deposit boxes, personal possessions, and other assets. Instructions to an Executor are not legally binding in the way that the provisions in a Will are, but instructions can speed up and simplify the process.

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