Wills and Trusts in New York, NY

How Do Wills and Trusts Work?

Wills and trusts ensure that the assets of your New York, New York estate become distributed the way you imagined after you pass away. While this may not be the most pleasant thing to think about, it’s necessary to prevent complications or create disputes among your loved ones. So how do wills and trusts work? Well, while an estate planning attorney isn’t required to write a will or create a trust, you may find their advice invaluable to the process. Either document has to meet the criteria for the state, and a will and trust attorney can ensure that you’ve dotted the i’s and crossed the t’s.

Trust vs Will

Wills and trusts play a role in ensuring the distribution of your estate after you pass away, but they have different approaches and functions. How do wills and trusts work in New York, NY? A will is a legally binding document that describes what assets you have, who you want them to go to, and how that should occur. A trust creates a financial relationship between parties that handles the transfer of savings, property, or investments. The two often work together as critical parts of your entire estate planning strategy.

How to Create a Will or Trust in New York, New York

Identify Assets

Creating a will or trust begins with accounting for every asset in your estate, including property, investment accounts, or business ownership. An experienced estate planning attorney can better help you navigate this process. Once you have confidence that you understand what needs distribution, you can do so with clear goals in mind.

Choose the Distribution

While you want a clear explanation of how your assets should distribute among loved-ones, it’s also important to consider assets beyond your control. A life insurance policy or a 401k may have designated beneficiaries who are not mentioned in your documentation.

Choose the Executor of your New York, NY Will or Trust

The executor of your will or trust takes on the legal responsibility to execute your wishes. While it’s a given that you want to choose someone you can trust, it’s worth considering your attorney or an accountant for the job. A reliable trust attorney or will attorney can better help you navigate this process, and inform your decisions.

New York Courts place few restrictions on who can and cannot serve as an executor of an estate. While many choose a family member or a surviving spouse, this is not mandated by the state. As long as your executor is 18 years old and of sound mind they can oversee your estate. However, if someone has been convicted of a felony they are not legally eligible to serve as executor.

Choose a Guardian

Unless you want the court to appoint a guardian, it’s best to choose one for your dependents. Then, name them as such in the will.

Sign with Witnesses

After you have reasonable confidence that everything is in order, it’s time to make the document official. To make the will or trust legal, you and witnesses should sign the document. An experienced estate planning attorney can better help you navigate this process, and ensure the validity of your will or trust.

Update and Create your Will or Trust as Necessary

You may feel locked into your will after all the preparation. But you don’t have to feel completely married to your decisions. If circumstances change in your life or you change your mind, don’t hesitate to make changes to ensure your final wishes are clear and carried out properly.

Residents of New York can change their will in 1 of 2 ways. The first is to make slight changes through an amendment process called a codicil. This simple process keeps you from drafting an entirely new will. Still, you may encounter major life changes that require a new will. If so, simply destroy the old will and draft a new one in its place. While these are simple instructions, the will must follow the letter of the law if you want to have control over how your estate is handled. An experienced attorney in New York can best help you in these matters.

The Different Types of Wills in New York, NY

Simple Will

As the name suggests, a simple will meets the basic requirements but it remains subject to probate after your death. This document is an essential outline of how you would like your assets distributed by an executor for designated beneficiaries, pets included. As always, consulting with a trust attorney is your best option when it comes to designing your estate plan. 

Joint Will

A joint will is created by two individuals, usually a married couple, that details how assets are distributed upon one or both passing away. While this is a single document, legally it can be treated as two separate entities.

Living Will

It may sound obvious that a will is written while you’re alive. But, this type of legal document establishes directives to medical providers regarding your wishes for end-of-life care. In the event that you are incapacitated and cannot express your desires, this tells doctors and nurses your preferences in advance. This type of will typically does not include beneficiaries after your death and serves this sole function.

Holographic Will

Whether it’s written on a napkin or a regular piece of paper, a holographic will is a handwritten-only document signed by the testator. Most states require witnesses to sign a testament to validate an individual’s intentions. However these may be legally valid especially when created during emergency situations.

Holographic wills are only recognized in New York under very few circumstances. According to the New York Senate a holographic will is only valid if it is made by a soldier serving in war, someone accompanying a soldier serving in war, or a mariner at sea. Holographic wills can also expire depending on the circumstances of their drafting.

Pour-Over Will

A pour-over will is a testamentary that creates a trust and specifies the property that will transfer after someone passes away. This acts as a safety measure that can transfer assets to an account that might not have transferred otherwise.

The Different Types of Trusts in New York, NY

Irrevocable Trust

This type of trust cannot be changed or terminated without permission from the beneficiaries. This has the legal effect of transferring assets where the grantor gives up all rights of ownership. This can have significant tax advantages, but it can have its drawbacks depending on your circumstances.

Revocable Trust

This trust gives the flexibility necessary for the grantor to make modifications until they pass away. If you need the funds in a trust for living expenses while living, this can provide a solution. One that still distributes an estate as desired.

Family Trust

People choose to create this type of trust to care for their family members after they’re gone. This provides an opportunity for you to have peace of mind that children, siblings, or extended family members have access to the share of your assets you have designated.

Charitable Trust

If you wish to leave a philanthropic legacy behind while taking care of your family and loved ones, a charitable trust might be the right choice for you. Some individuals choose to leave behind ownership in a business, stocks, or real estate if they have the means to do so.

How to Avoid Probate in New York, NY

States may have similarities in how they handle the distribution of assets that go to probate. But as always, the devil is in the details. However, in most states, probate is required. Unless an estate is particularly small, and doesn’t concern the transfer of real property. An experienced will and trust or estate planning attorney can better help you navigate this process.

If an estate is less than $30,000, New York Statute declares that probate is not mandated. However, there are ways to avoid probate if you have left a larger estate. The simplest is to draft a living trust and place all your assets in it. You must name yourself as the trustee in order to maintain control of the funds and property placed within. Then you name the individual you would like to be the beneficiary of your estate as the successor trustee, and they will assume control on the date of your passing.

If you own property in New York you might also consider filing for joint ownership with the individual you would like the property to pass to. Joint ownership means a court will not be involved in the process as the beneficiary will simply become the sole owner. Married couples can also benefit from a designation in New York called Tenancy by the Entirety.

Work with an Experienced New York, New York Estate Planning Will and Trust Attorney

Planning for your eventual death is not a pleasant task. Along the way, you are bound to wonder how wills and trusts work in New York NY? How can I make this process easier? It is tedious, but it’s crucial in order to ensure that your family and legacy are secured. The law does not require an individual to hire a trust attorney or will lawyer, but they can prove invaluable if they catch issues that could result in your estate going to probate. If you feel like you need help, it’s worth your time to consider hiring an experienced estate planning attorney. We can even help you connect with legal help across New York state lines.

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