Things to Know About Writing a Will
Does a will give you complete power over where your assets go when you die? Writing and executing a will are a lot more complex than you might think. Our experienced New York estate planning lawyers discuss the things to know about writing a will.
Things to Know About Writing a Will
Even people who accept that they need more than a will for a comprehensive estate plan can still overestimate the legal power of a will. While people unfamiliar with estate planning often think of a will as a straightforward and unfettered statement of their wishes, this isn’t the case.
You cannot, for example, disinherit your spouse with a will. A spouse will always be entitled to one half of your “wealth” (broader than your estate). This is called a “right of election.” If you attempt to use your will to give your spouse less than one half of your wealth, or if you miscalculate in your will such that it leaves your spouse less than one half of your wealth, your spouse may exercise this right of election and override the terms of your will. You cannot unilaterally refuse this right of election. The only way around it would be through an airtight pre-nuptial or post-nuptial agreement.
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Things to Know About Writing a Will
As explained above, probate also limits the power of a last will and testament. Two groups of people can potentially challenge a will through probate. One group is the distributes, people who would have taken a portion of your estate had there not been a will. The other group is comprised of anyone the will adversely affects (for example, individuals named in an early will but disinherited in the latest version). To disqualify a will, any challenger must prove incompetence, influence, mistake of fact, or fraud/forgery. In other words, the challenger must demonstrate that you were not mentally capable of writing the will in question; that someone coerced you into writing the will in question; that either you or the witnesses did not know the document you signed was a will; or that the will is fake. None of these claims is easy to prove; on the other hand, you won’t be around to settle the matter with your testimony.
Things to Know About Writing a Will
Lastly, a will only affects what happens after you die. Proper estate planning includes end-of-life planning. You should have a power of attorney and a healthcare proxy to make medical and legal decisions in case you become incapable of either. You cannot assign such powers in a will. Also, a will is not the proper place to put your funeral and burial wishes. The probate process will occur afteryour funeral. Make sure you discuss these arrangements with family and friends and consider stating your wishes in a separate document. You can talk to an estate planning attorney about the best ways to make your funeral and burial wishes a reality.
Preparing for end of life is a scary and emotional time. Providing for your loved ones and knowing where your possessions will go is something everyone wants to ensure. Contact our experienced New York estate planning lawyers today.
