I could rhapsodize for days on the Wills I have seen. Dr. Seuss rhymes would fly in every direction. Big Wills. Small Wills. Little Wills. Tall Wills.
Will formats and execution procedures are not super complicated, but mistakes are made all the time. Trusts are better. But if the thought of sitting down with an estate attorney again after 20 years makes your teeth chatter – then you better make sure your Will was properly done.
Wills are creatures of routines, like restaurants.
You are hungry, so you drive to a restaurant. You get seated, handed a menu, and water is usually poured into a glass. Bread may or may not be placed on the table. You order, then wait. Appetizers and drinks arrive. Empty plates are removed. Main courses arrive. Empty plates are removed again. A dessert and coffee menu is presented.
The check, wearing its leather suit, is handed to you by your server. Not wanting to wait until your server returns, you quickly grab your wallet and pull out cash or credit card, make sure the check is mathematically correct, and hand everything back before they leave the table. Your change or card is returned in that same leather suit.
Everyone leaves the restaurant, comparing dishes and sociological observations.
I know – I hammered home the analogy to a ridiculous degree … or did I?
Wills are drafted after conversations with the testator (maker of Will, in other words … you). The attorney will find out who you want to be your executor (person who handles your estate after you are gone). You could have one executor or more than one, and you should have back-ups if the original executor is no longer around.
Next, an attorney will ask about assets and the people or charities that are getting your money or belongings. If there are minor children or disabled beneficiaries, special provisions are added to the Will. Provisions are also included for children you want to exclude from your Will. The draft is finalized and it mentions all of these people and assets.
The Will is now ready for execution, and here is where the fun starts.
In New York, Wills require two disinterested witnesses (witnesses not receiving a bequest under that Will) to sign right below the testator’s signature. A notarized affidavit of attesting witnesses is attached to the Will, basically specifying that the witnesses saw that the testator was in their right mind. Best practices dictate that the testator initial each page of the Will except their signature page to show they handled and reviewed the document and to avoid possible fraud.
Once the Will is fully executed, the papers must be stapled or attached and these fasteners must never be removed.
Off the original Will goes to its fire-proof box in your home and stays there until you fish it out. (do not leave a Will in a safe deposit box unless your family likes to obtain court orders).
If any of these steps is missed or screwed up, a court will delay probate. If you only have a copy of the Will and not the original, probate will be delayed until you locate the original. If a disinherited child is accidently not named in the Will, they will actually inherit a share of the estate against your wishes.
Not having back-up executors may allow someone who you did not want to become executor, if the primary executor dies before the testator.
As far as routines go, skipping cheesecake at the restaurant only causes temporary regret. In a Will, a missing word or name can permanently damage your estate plan if it is not caught.
Alan D. Feller, Esq., is managing partner of The Feller Group, located at 572 Route 6, Suite 103, Mahopac. He can be reached at alandfeller@thefellergroup.com.
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