1) What is a will?
-back to top
A will is a legal document in which a person states
how his or her property is to be distributed after
death. A valid will must be signed by the maker
in the presence of two (2) witnesses who also sign
the will as witnesses.
2) Who can make a will?
-back to top
Any person 18 years of age or older, possessing
a sound mind and an understanding to extent of his
or her assets can make a will. A man who makes a
will is called a "Testator" and a woman
who makes a will is called a "Testatrix".
3) Do I need a Will if I have very few assets
or very little money?
-back to top
Yes. Even if you have very little, you want these
heirlooms and other precious or personal items to
go to the right person or charity. A will accomplishes
this. A will also enables you to insure that the
person you trust raises your minor or disabled children.
4) What happens when a person dies without making
a will?
-back to top
If a person dies without having made a valid will,
the State (NY, NJ, CT, etc.) takes control of his
or her assets and distributes them according to
rules in the estate administration statutes. This
is called dying "Intestate". No matter
to whom you wanted to give your assets, if you die
intestate, the State will distribute your assets
according to its rules and there is nothing anyone
can do about it.
5) Can I change my Will after I make it? Can
I revoke it?
-back to top
Yes. Any will can be changed as many times as you
like and in as many ways as you like. However, you
must possess a sound mind and understand the extent
of your assets each time you do this. You can change
your will right up until the moment of death or
incompetency. You change a will by executing a new
will. Codicils are no longer used to change a will.
6) What kind of assets or property can be conveyed
through a Will?
-back to top
Almost anything you own or have a power over can
be conveyed by will. (See Question 7 below). Generally,
these assets fall into three categories: Real Property
(e.g. land, a house, a lease on property, etc.)
called a "devise"; Money (including cash,
stocks, bonds, savings bonds, accounts, etc.) called
a "legacy"; and Personal Property (including
furniture, cars, jewelry, books, etc.) called a
bequest. The total of all the assets conveyed by
will is called the Probate estate.
7) What assets cannot be conveyed in my will?
-back to top
Any assets which are owned in joint name (joint
bank accounts, real estate owned as joint tenants),
assets owned with right of survivorship, life insurance
policies or other property designating a specific
beneficiary (e.g. IRA's, Retirement Plans, "In
trust for" bank accounts) cannot be conveyed
by a will.
8) To whom may I convey my assets in my will?
-back to top
You can convey your assets to anyone or any institution
you desire. That includes some or all of your children,
relatives, non-relatives, friends, charities, schools,
institutions, religious orders, societies, etc.
Any and all of these can be the recipient of your
assets.
9) What is an executor?
-back to top
An Executor (or Executrix if she is a female) is
the individual or institution nominated in a will
by the testator to collect, manage and ultimately
distribute the assets according
to the provisions of the will. Most often, the executor
is a relative of the deceased. Once the nominated
executor is approved by the Surrogate's Court, he
or she is issued Letters Testamentary which authorize
him or her to carry out the terms of the will.
10) What is the difference between the Probate
estate and the Tax estate?
-back to top
The Probate estate is the group of assets which
are distributed under the provisions of the will.
The Tax estate is all assets which the decedent
owned at the time of his death. The Tax estate is
always equal to or bigger than the Probate estate.
Estate taxes are computed based on the size of the
Tax estate.
