The death of a loved one is a very tragic event. Nevertheless, after the end of the appropriate mourning period certain tasks have to be performed in a timely manner so that the decedent's affairs may be put in order.
First, there are certain legal terms used in New York and other states which should be identified. Decedent is the person who has died. If a decedent leaves a valid will the person died testate; if no will was ever executed, the person died intestate. The decedent's property is known as the estate. The beneficiary is the person who takes the decedent's property under a will while a distributee inherits under intestacy. The executor is the person who manages the estate's assets until they are distributed to the beneficiaries. When a person dies intestate, the administrator manages the estate until the distributees inherit it.
When a person dies leaving a will, a probate proceeding must be commenced in Surrogate's Court of the county which the decedent considered to be his/her permanent residence to prove the validity of the will. In Queens County, the Surrogate's Court is located at 88-11 Sutphin Boulevard, Jamaica, New York on the Seventh Floor. All necessary forms may be obtained there. Forms for small estates of less than $20,000.00 in personal property could also be obtained on the Seventh Floor. Nevertheless, it is advisable to retain an attorney who is familiar with Estate Law to handle the probate proceeding. This will assure that all the court's requirements for probate are met in a timely fashion. Also, any challenge to the will could properly be defended.
The possibility of a challenge to a will should be contemplated at the time the will is signed. Again, an Estate attorney should properly prepare it and supervise the execution. The legal fees should be in accordance with the complexity of the will.
There are several necessary elements to a valid will and it is important to know them. First, the testator (person making the will) must have testamentary capacity. This means that the person knows that he/she is signing a will as opposed to any other document and realizes how his/her assets are being disposed of at death. The testator must know the nature, extent and condition of his/her property and also know his/her relationship to the people who would ordinarily be the "natural objects of his/her bounty." Basically the testator must be aware of the assets and whom he/she has designated to inherit them.
Second, the testator must be free from undue influence. This means that a testator cannot be coerced and constrained to do what is against his/her free will. The term "undue influence" means that a person who is not in a family or loving relationship had a motive and opportunity to coerce the testator to leave his/her estate in a certain way.
Third, the testator must not be the victim of fraud. He/she cannot rely on a false statement intentionally made to induce the testator to draw the will differently than he/she normally would have had they known the truth. Fraud is very difficult to prove.
The last element is that the will was properly executed. Under New York State law four requirements must be met. 1) Testator must sign at the physical end of the will; 2) Testator must sign the instrument in the presence of at least two witnesses; 3) Testator must make known to the witnesses that it is in fact his/her last will and all prior wills are revoked; 4) Testator must request that each attesting witness act in that capacity.
Although it is not required, the testator should initial each page of the will preceding the signature page.
It is most important that the will not be taken apart and then restapled because if the staples are not in line and/or removed it could lead to an objection to the probate. The will can be filed in Surrogate's Court and sealed during the remainder of the testator's lifetime. All subsequent changes or new wills must then also be filed with the Surrogate's Court. It is also important to know that a will remains valid until it is revoked or a new will or codicil is executed.
It is also a good idea that the attesting witnesses execute affidavits at the time of the signing of the will stating that the testator understands the nature of the will and that he/she suffers from no mental or physical impairment prohibiting him/her to execute a will. This also eliminates the need to locate the attesting witnesses after the testator's death, which is often a major source of delay in probate proceedings.
If a person dies without a will, the law provides by whom, and to whom the estate shall be distributed. This would be an Administration proceeding. Normally one of the closest family members of the decedent who is entitled to share in the estate will be named the Administrator. If no distributee wants to be the Administrator or no one is eligible, the Public Administrator will manage the Estate.
If only a spouse survives, he/she will get everything. If there are only children and no spouse the children will share equally. If a spouse and children survive, the spouse gets $50,000.00 and V2 of the remaining assets and the children receive the balance. It gets more complicated if there are predeceased children or only parents, but the law is quite equitable in this area.
This article is just a general outline of law regarding wills in New York State. It is not meant to give legal advice and an attorney should be consulted before executing or probating a will. The attorney should also explain all the tax consequences of any provision in the will.