A will is an estate planning document that allows an individual to designate how their estate will be distributed when they pass away. An individual’s estate includes all of their personal and real property, including vehicles and homes, that may be distributed when they pass away.
Trusts are designated funds that are created to help an individual organize their wealth and spending needs. There are numerous different types of trusts an individual can use to suit their needs.
If an individual is considering creating an estate plan, including drafting a will or choosing a trust type, consulting with a local New York attorney is important.
What Are the Legal Requirements for a Will to Be Valid?
To probate a will means determining whether a will is valid after an individual has passed away. This process involves the legal aspects of distributing the decedent’s assets according to their wishes.
The Uniform Probate Code (UPC) is a body model law drafted and reviewed by a group of national experts who were attempting to streamline the probate process across states. So far, however, many states, including the State of New York, have not adopted the UPC in its entirety, even though most are using portions of the UPC.
Although the State of New York has not adopted the UPC in its entirety, the probate process is relatively efficient.
What Makes a Will Invalid?
There are several legal issues that may make a will invalid, including, but not limited to:
- Disputes regarding a later will: a common dispute involves the discovery of an alleged will that was made after the one has been admitted to the probate court;
- A will made later will rule if there are no problems with its validity;
- Undue influence: If another party influenced the testator when they created their will, the will may be deemed to be invalid by the court;
- Fraud: If evidence is provided that the testator was tricked into signing the will or was confused as to the contents of their will, then the will may be declared invalid by the court;
- Mistakes: The presence of mistakes in the will, for example, incorrect spelling or incorrect dates, may cause issues when a will is being reviewed;
- Specifically, these mistakes may be used to show that the individual who created the will could not do so; or
- Vague or ambiguous language: When the language in a will is unclear, the will may be declared invalid. Because of this, it is important to use specific language regarding intentions surrounding the distribution of estate assets to avoid any confusion later upon reading the will.
What Makes a Trust Valid?
In order for a trust to be valid, there are several requirements, including, but not limited to:
- Settlor: There must be a settlor, who typically must be 18 or older and have the mental capacity to form a contract;
- Delivery: The settlor is required to deliver legal title to the property;
- Property: The property must be delivered to a trustee;
- Trustee: The trustee must hold legal title to the property;
- Beneficiaries: A trust is required to have one or more beneficiaries, all of whom must be definite and identifiable;
- Intent: The settlor must intend to create an enforceable obligation. This means there must be intent to create a trust by the use of definite words or specific conduct;
- Lawful purpose: A trust must be created for a valid or lawful purpose; and
- Valid execution: A trust document must be validly executed by being in writing and signed by the settlor.
Can a Trust Be Contested?
Yes, it is similar to contesting a will. Common examples of will and trust contests include:
- Disputes regarding which family members are entitled to what specific property;
- Disputes over the amount of money to be distributed to a specific individual;
- Conflicts over specific items;
- Conflicts as to whether a person is actually a beneficiary.
There are several legal grounds that allow an individual to contest a will or trust. In general, these arguments or grounds include:
- Mistakes or errors, which are, in some situations, proven and clarified by other documents that the decedent wrote;
- Ambiguous language;
- Lack of mental capacity, meaning the creator of the trust was not sound of mind when they created the document;
- Fraud or duress if the trust was created under the threat of harm or under fraudulent conditions.
What Assets Cannot Be Placed in a Trust?
It is important to be aware that there are certain assets that cannot be placed in a trust, including:
- Medical savings accounts (MSAs);
- Health savings accounts (HSAs);
- Retirement assets, such as 403(b)s, 401(k)s, IRAs;
- Any assets that are held outside of the United States;
- Cash; and
- Vehicles.
How Do You Begin the Probate Process in New York?
To begin the probate process in New York, an executor has to file the paperwork in the Surrogate’s Court in the county where the decedent lived. The paperwork required to open an estate in New York includes:
It is essential to file the original will, as a photocopy will not be accepted. The heirs must be named in the petition for probate and be served with notice of the opening of the estate file.
This notice provides the Surrogate’s Court the authority to determine the rights of the individuals who are involved with the estate.
What Happens After Beneficiaries Receive Notice?
So long as all of the individuals who have an interest in an estate have been served proper notice and there are no objections to the probate of the will, the Surrogate’s Court will grant the decree of probate, which means that the will is declared valid and the executor will be issued Letters Testamentary that give them the authority to administer the estate.
The executor has several duties, including:
- Collecting the estate assets;
- Opening an estate account;
- Paying the estate taxes and outstanding debts; and
- Ensuring that beneficiaries receive their share of the estate.
The executor will then be required to file a final accounting with the Surrogate’s Court that outlines exactly how the estate’s funds were handled and how the remaining funds are going to be distributed.
What Happens to an Estate Without a Will?
If an individual dies without a will, it is referred to as intestate succession. In these situations, New York laws will distribute the property of the deceased to their heirs in a predetermined order.
Is There a Time Limit to Settle an Estate?
Yes, there is a three-year time limit to settle estates in New York. Although, there are some stipulations and exceptions that may extend this deadline.
Can an Executor Sell Property Without All Beneficiaries Approving?
Yes, an executor is permitted to sell property without obtaining approval from all of the beneficiaries. However, it is important to note that notice will be provided to all of the beneficiaries so that they are aware of the sale.
Do I Need a New York Lawyer for Help With Wills, Trusts, and Estates Issues?
If you have any issues, questions, or concerns related to wills, trusts, and estates in New York, it is essential to consult with a New York wills, trusts, and estates lawyer. Probate and estate issues may be complex.
Having the assistance of an attorney means that your case will be handled by an individual who is familiar with how the local Surrogate’s Court works. Your lawyer can help you navigate the probate process, represent you in the Surrogate’s Court, and provide advice on any issues you may experience, including disputes over the will.
