What is a Last Will and Testament in New York
What is a Last Will and Testament in New York
A
Last Will and Testament is the first building block of a good estate plan. Estate planning is the process by which an individual or family arranges the transfer of assets in anticipation of death.
Option 1: Will-Based Estate Plan
All essential details of your
Last Will and Testament will be outlined in the will-based estate plan. It will provide information including the person to be put in charge of settling your final affairs (the executor), the persons who will inherit your property (beneficiaries), and the provisions on how they will inherit it. Your last will and testament with a will-based estate plan will cover the following:
1. Who will serve as the personal representative/executor
2. What powers your personal representative/executor will have
3. Who will inherit your property
4. How and when your property will ultimately be transferred to your beneficiaries
5. Who will serve as guardian of your minor children until they become adults
Option 2: Trust-Based Estate Plan
In the trust-based estate plan a document called a revocable
Living Trust will cover all the important points listed above in the will-based estate plan with one exception: the person in charge of settling your final affairs after you die is called an administrative or successor trustee instead of an executor.
If you have a revocable living trust you will still need a
Last Will and Testament so. Ideally, you will fund or move your assets into your trust before you die. If you fail to fund even one asset into your trust, then the last will and testament will be the necessary document that will "catch" the unfunded property and transfer it to your trust after you die. The last will and testament in this case will function as a pour over will that will cause the unfunded assets to "pour over" into your trust through a probate process.
A pour over will needs to cover:
1. Who will be in charge of your assets that were not funded into your trust as the personal representative/executor
2. What powers your personal representative/executor will have
3. Who will serve as guardian of your minor children until they become adults
4. What will happen in the absence of a Last Will and Testament?
In order for your property to go to the beneficiary of your choice after you are gone, a Last Will and Testament is recommended.
The absence of a will could result in the state providing a last will and testament on your behalf under the state's intestacy law. The laws of the state that your property is located in will prevail. This can get complicated if you own property in multiple states.