Last Will and Testament, Trusts, Codicils, Powers of Attorney, Living Wills, Probate, Administration, Will Contests and Litigation.
What is a Valid Will & Testament?
- A valid will must have the following features:
- It must be in writing.
- It must be signed by you.
- It must be witnessed by at least two disinterested people present at the time of signing.
- You must testamentary “capacity” at the time that the will is signed.
If your will is not properly made, the court will not accept it and it will not be enforced. Probate means that it has been proven that your last will has all the necessary legal elements to be accepted by surrogate court. The court has discretion to deny probate. If it does so, your possessions will be disposed of as if you had not made a will at all.
A contested will, or a will contest, occurs when someone claims that one of the above elements is missing. Most frequently, arguments are made that the testator failed to have testamentary capacity, that is, lacking the mental or physical capacity to understand what she or he was when the will was executed. Sometimes, there are arguments made that this lack of competency was a result of undue influence or duress exerted by others at the time the will was made.
Why Make a Will?
If you die without a will, then you are said to have died “intestate”. The rules of intestacy are set forth how your estate is administered. The court will rule on who the beneficiaries are – usually your closest blood relatives – and a percentage of your property that will be distributed to each of the beneficiaries according to the rules of intestacy. The intestacy laws may not be according to your wishes, so dying intestate is not a good position to be in as far as your beneficiaries are concerned.
Richard G. Fontana is an experienced probate attorney with years of experience in Surrogate’s courts in Westchester County, Bronx County, Putnam County, New York County and Queens County. He has handled will contests, and challenges concerning the estates of his clients, as well as the uncomplicated administration of testate and intestate estates.
What Are Probate and Non-Probate Assets?
It is very important for the testator to understand what will be transferred to others pursuant to the last will and testament and what assets pass outside of the will.
Call Richard Fontana at (914) 233-5150 for a free explanation of this very important distinction between assets.