Our attorneys frequently advise New Yorkers of the immense benefit of using trusts to conduct estate planning instead of relying solely on a Will. More and more residents are recognizing the value of trusts and incorporating them into their planning. However, Wills remain the most well-known and used tool to pass on assets upon death.
There are specific laws which dictate when a Will can be deemed valid by courts in probate. For this reason, it is always prudent to have an attorney draft your Will to ensure it will work as desired when the time comes.
However, even those who have an attorney draft a Will may make the later mistake of trying to modify the WIll on their own, without legal help. This is a significant problem and may result in the entire Will being thrown out. It is not uncommon for an individual’s assets to be divided via intestacy rules instead of per their actual wishes in a Will because of modifications made ad hoc.
One common urge may be for a resident to simply take a Will prepared by an attorney and scratch a few names out, write in new names, or change the exact assets that each is to receive. But this is a mistake. Modifications or additions to a Will, often referred to as “codicils,” still have to follow the same witnessing, capacity and signature requirements as a new Will. Therefore, making haphazard alternations as a time-saving measure will likely not be upheld.
In fact, considering that most Wills today are created and stored digitally, there is virtually no reason to engage in the complex use of codicils or slight modifications. Instead, most of the time it makes more sense to simply have an attorney help draft a new Will to ensure that all formalities are followed and fewer questions will be asked in probate when the WIll is brought forward.
At the end of the day the takeaway is clear: have the aid of an attorney every time you create a Will or want to update a Will. Holographic Wills–handwritten and unwitnessed documents–generally will not be upheld in New York Probate Court except in very limited situations (like for members of the armed services who are overseas). For this reason, without the counsel of an attorney you always risks having a home-made Will thrown out and rendered ineffective, adding an extra challenge to grieving families at the exact moment that they do not need it.