You’ve worked hard for the assets you have and you want to make sure those assets are passed to the people who are important to you after you’re gone: spouse, children, loved ones, friends or charitable causes. There are two ways to do this, with a will or without a will.
A person who dies without a will is said to have died intestate. In a situation where one dies intestate, a state law will determine how their estate, that is, the sum total of their assets, are distributed. If your desire is to distribute your estate according to this statutory plan, then an intestate administration of your assets will serve that purpose.
Many people, though, would rather have some amount of control as to how their assets get passed on after death. If your desire is to pass your assets in a way that is not contemplated by the laws of intestate distribution, then you need a will to accomplish your goal. A person who dies having executed a valid will is said to have died testate.
A will is s written document that expresses your wishes as to the distribution of your assets after your death. It is signed at the end by the person making the will, that is, the testator, and witnessed by two disinterested witnesses. In addition to the distribution plan, your will also designates the individual or individuals you choose to do the business of distributing your estate, that is, your executor. Your executor will collect your assets, pay your just debts and distribute your assets according to the dictates of your will.
In order for the executor to get the authority to act, the will must be admitted to probate. Probate is the process by which we prove that the will is genuine. This is usually done by submitting the will, along with the testimony of the witnesses regarding the execution of the will, to a court. If the court accepts the will as genuine, it is admitted to probate and a court order, called Letters Testamentary (or Letters of Administration in the case of an intestate estate) is issued permitting the executor (or administrator for an intestate estate) to act as the estate representative. In New York, once the will is admitted to probate, the court proceeding is finished and the court is not involved further except to be notified of the value of the estate and the completion of the distribution.
I have over 20 years of experience in preparing wills and other estate planning documents such as powers of attorney, living wills and health care proxies, and in the representation of an estate in probate and administration matters. I will work with you during this difficult time to make sure that the wishes of your loved one are carried out.