Frequently Asked Probate and Estate Questions
Whether you need to prepare for changes in the life of your loved one or you are sorting out matters after a death, estate issues can be confusing and complex. On this Frequently Asked Questions page, the experienced lawyers at Antonelli & Antonelli share their perspective on many common issues. Don’t see your question here? Don’t hesitate to reach out to our New York City office.
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What is a "will" in New York estate law?
Definition of WILL:
(noun) / a last will, including all the codicils thereto
This is the definition set forth by the New York Estates, Powers, and Trusts Law as well as the Surrogate’s Court Procedure Act. But what is a will, really?
Plain English translation: A last will is a legal document that provides a person’s last wishes with respect to property and dependents upon that person’s death. It is a set of instructions for disposing of a person’s property, nominating an executor to oversee the transfer of that property, and nominating someone to take custody of minor children.
What is "property" in New York estate law?
Definition of PROPERTY:
(noun) / anything that may be the subject of ownership and is real or personal property, or is a chose in action1
Plain English translation: Property is anything that can be owned. Real property is land. A house, building, or other structure is improved real property. A condominium apartment owner owns a fraction of the land on which the building sits. Personal property is essentially all other property. A “chose in action” is the right to recover personal property that is wrongfully held by another.
1 EPTL § 1-2.15; SCPA § 103 (44)
What is an "infant" in New York estate law?
Definition of INFANT or MINOR:
(noun) / a person who has not attained the age of eighteen years1
Unlike its everyday meaning, "infant" does not mean a very young child or baby. It is the legal term, within the context of New York estate law, to refer to a minor.
1 New York Estates, Powers & Trusts Law §1-2.9-a; Surrogate’s Court Procedure Act § 103 (27)
What is an "incompetent" in New York estate law?
Definition of INCOMPETENT:
(noun) / a person judicially declared to be incapable of managing his or her own affairs1
Plain English translation: In order for a person to be considered legally incompetent, a court must make a determination that the person cannot manage himself or his affairs by reason of age, mental illness, or otherwise.
1 New York Estates, Powers & Trusts Law § 1-2.9; SCPA § 103 (26)
What is an "estate" in New York estate law?
Definition of ESTATE: (noun) / ownership interest
Depending on the context, “estate” may mean: the interest which a person has in property or the aggregate of property which a person owns (New York Estates Powers & Trusts Law § 1-2.6).
Plain English translation: “Estate” is used many different contexts but, at its simplest, it just means ownership.
A person can own real estate, meaning an ownership interest in land, usually referred to as title, as in “the landlord holds title; the tenant merely has a right of possession.”
“Trust estate” refers to property held by a trust where the trustee holds legal title (right to manage) and the beneficiary holds beneficial title (right to benefit from).
“Probate estate” refers to property passing through one’s last will.
When a living person refers to his or her “estate” it is usually a reference to the person’s aggregate ownership, as in “I’ve built a large estate of land, stock, and commodities.”
What is a "creator" in New York estate law?
Definition of CREATOR: (noun) / a person who makes a disposition of property
New York Estates Powers & Trusts Law § 1-2.2 provides this general definition. However, the usage varies depending on context. A “disposition of property” means a direction of where the property will pass or to whom it will pass as in “the creator disposed of his house by leaving it to his daughter through his trust.”
The term “creator” is typically used in the context of a trust, whereas the term “testator” is typically used in the context of a will. “In her will, the testator left all her jewelry to her son.” The creator “creates” the document that disposes of the property.
Synonyms include trustor and grantor.
What is a "codicil" in New York estate law?
Definition of CODICIL: (noun) / a supplement to a will
New York Estates Powers & Trusts Law defines a codicil as a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will (EPTL § 1-2.1).
Plain English translation: a codicil is similar to an addendum or rider to a contract; it typically changes only some of the terms included in the will.
Codicils have become rare since the advent of modern computers and word processing templates. In the pre-digital age, a codicil was a shortcut used to avoid having to retype an entire will. Today, attorneys often save the final draft of their clients' wills in a word processing program and can easily make changes. Even without the final draft, a new will can be populated relatively quickly.
What is a Holographic Will?
Definition of HOLOGRAPHIC WILL:
(noun) / a will written entirely in the handwriting of the testator and not executed and attested in accordance with the formalities prescribed by New York Estates Powers & Trusts Law § 3-2.1
In order for a holographic will to be admitted to probate, it must be proven that the will was written entirely in the testator’s handwriting and that the testator, at the time the will was executed, was a member of the armed forces while in actual military or naval service during a war or other armed conflict; a person who serves with or accompanies an armed force engaged in actual military service during such war or armed conflict, or a mariner at sea.
FAQ: Will Contests - Do I have grounds for contesting a will? (Part 2 of 6)
Grounds for Contesting a Will
In Part 1 of this series on will contests, we discussed the following questions:
Who can contest a will?
What are legitimate grounds for contesting a will?
In this post, we will get into the details of the first ground for contesting a will – undue execution. When someone objects to a will on the basis of undue execution, what is being alleged is that the will was not duly executed. Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.
Due Execution: Was the will properly executed?
Wills must be executed in strict compliance with the provisions of New York Estates, Powers, & Trusts Law (EPTL) §3-2.1. The elements are due execution are:
The signature of the testator must appear at the end of the will, just before the witness attestation clause;
The testator must sign the will in the presence of each of the witnesses, or his signature shall be acknowledged to each witness as his signature;
The testator must declare to each of the witnesses that the document they are witnessing is the testator’s will; and
There must be two witnesses to the will. The testator must ask each witness to sign his will. Additionally, both witnesses must sign the will within 30 days of each other.
If the will was not executed in compliance with the above provisions, it is not a valid will and can be challenged through a will contest.
Examples of Improper Execution of a Last Will & Testament
1. Thomas executes his will at his estate attorney’s office in Manhattan by signing in the middle of page 5. Thomas then adds language at the bottom of page 5, beneath his signature, leaving his Brooklyn apartment to his niece, Beth.
What is the result? Under New York law, although the will may be valid, the language after the Testator’s (Thomas’s) signature is considered invalid and ineffective. The Brooklyn apartment would be distributed as though the additional language after Thomas’s signature did not exist.
2. Thomas wants to draft a will but is not physically able to travel from his Brooklyn home to his estate attorney’s office in Manhattan. In order to accommodate Thomas, the attorney travels to Thomas’s home in Brooklyn where Thomas executes the will. The attorney then takes the will back to his Manhattan office and has his two associates sign the will as witnesses.
Problems? Yes – two of them. First, the Testator did not sign the will in the presence of the either witness nor did he acknowledge that the signature was his. Second, the Testator did not declare to the witnesses that the document they were witnessing was Thomas’s will. Under New York law, this will is invalid.
It is extremely important to properly execute a will; otherwise, it may be subject to a will contest in Surrogate’s Court on the ground that it was not duly executed.