Common Will provisions
To the extent that there is such a thing as a “typical New York Will”, the provisions commonly seen are the following:
The preamble: A Will starts off with an introductory paragraph in which it declares that it is a Will, states the name of the person whose Will it is, and often the county in which the person resides. Where the person resides (called his “domicile”) determines where jurisdiction for the probate is. The preamble will also generally state that this current Will revokes any prior Will, although in New York that happens automatically every time you do a new comprehensive Will. See N. Y. Estates, Powers & Trusts Law §3-4.1.
Personal property clauses: Then there is usually a paragraph stating to whom personal property is to go, such as cars, furniture, furnishings, clothes, and household goods. This is often called “tangible personal property” — i.e., stuff you can actually touch, like couches and photos. This is contrasted with “intangible personal property” — i.e., paper that represents abstract stuff you can’t really touch, such as fractions of a corporation or debts of a business, like stocks and bonds. It is common — and generally advisable — to say in this section that tangible personal property will pass according to a separate signed writing; this is preferable because it provides a more flexible list for the executor to follow, in case you give items away to people during your lifetime, or if you change your mind about who gets what. Bequests of cash are usually placed in this general area of the Will as well.
Tax clause: There may be a paragraph explaining how taxes are to be charged or divided up. For example: Do they come off the top? Or does each person pay their share of taxes in proportion to what they receive? What about if something passes outside the Will — who pays the taxes on that item? Under N. Y. Estates, Powers & Trusts Law §2-1.8, each person receiving from the estate is to pay his or her proportional share of the estate tax; however, the Will can provide that, instead, any estate tax gets paid “off the top” and can extend this even to assets that pass outside of the Will.
Residuary clause: There follows, usually, a paragraph explaining where the rest of the estate goes. This is called the “residuary clause” because it disposes of the rest or “residue” of the estate that is left after all of the above bequests are dealt with. It is here, commonly, that estate tax planning (and saving) can result. Often trusts are set up for a spouse, children, or people with disabilities or special needs.
Nomination of fiduciaries: A fiduciary is someone who acts for the benefit of another, such as an Executor or Trustee. A paragraph naming someone to serve as the Executor (and, if there are any Trusts, a Trustee) appears at about this point in the typical New York Will. The paragraph may discuss what compensation the fiduciaries may (or may not) have for acting as fiduciaries. Unless the Will says otherwise, in New York Executors get paid commissions which are calculated as a percentage of the value of the “probate estate,” less any items of real or personal property left by the testator to a specific individual (known as specific bequests, legacies or devises). The commission rate in New York for each Executor is 5% on the first $100,000 in the estate, 4% on the next $200,000, 3% on the next $700,000, 2-1/2 % on the next $4,000,000 and 2% on any amount above $5,000,000. Often this paragraph will also dispense with the need of a bond, which is a kind of insurance to compensate the estate if the estate is diminished, lost or taken by the fiduciary.
Usually, there is a paragraph (often lengthy) that lists all of the powers given to the fiduciaries. This paragraph, although often put in for good measure and to ensure adequate or specific powers are granted, generally repeats powers that are automatically granted by N. Y. Estates, Powers & Trusts Law Article 11. Why do people do it then? Well, aside from keeping the Will from looking bare and unsubstantial (let’s face it: that is one reason), this ensures that the powers the fiduciaries need will be available no matter what changes in the New York law may take place between the execution of the Will and the date of death. Specific powers can be quite useful, moreover, when you have an unusual situation, or a particular business you need to liquidate or continue to operate, or other assets where such specific powers would be prudent.
Attestation clause: The signature of the Testator goes at the end of these sections. It is followed by the signatures and addresses of the witnesses. Proper execution of a Will in New York is governed by N. Y. Estates, Powers & Trusts Law §3-2.1. In New York, two witnesses are required. The Testator must declare that the document is his or her Will and the witnesses must sign at the request of the Testator.
Although not required, there may be a self-proving affidavit in which the witnesses sign a notarized statement saying that the person who signed the Will understood English, was not under any restraint, and signed the Will (or confirmed that the signature was theirs) in front of the witnesses. A self-proving affidavit saves the step of having to locate the witnesses after the Testator’s death to sign an affidavit.
A Will is a valuable basic tool. Although drafting one seems deceptively simple, it is not. Do yourself a favor: resist the temptation to print out a do-it-yourself Will from the internet; consult an experienced Estate Planning lawyer instead.
Disclaimer: The foregoing is general information and not legal advice. It is strongly recommended that you speak to an attorney knowledgeable in these matters if you are interested in a Will or have questions or concerns about estate planning and succession issues.
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