{Read in 7 minutes} A Will is one of the most important elements of an estate plan. A Will is a document that transfers one’s assets upon their death, and also, appoints people such as Executors, Trustees or guardians for children, all of whom may receive Letters from the Surrogate’s Court when commencing their official duties. A Will can contain important information about assets and members of your family, whether you choose to provide for them or not. When one dies in New York State, the Surrogate’s Court will often receive an application to probate that person’s Will. This is the process by which the Court determines if:
– the person had the capacity to sign the Will.
– they properly signed the Will.
– it was the product of any fraud or undue influence.
The last might result in the Court issuing a Citation — possibly depositions — and perhaps even a jury trial. As someone who litigates frequently in the Surrogate’s Court, sometimes the words that a person includes in their Will can be incredibly helpful or incredibly detrimental. Here are some examples of things that you may want to include, or wish to avoid.
1. Disinheriting Family Members
For various reasons, a person may wish to disinherit one of their family members:
– A parent disinheriting a child or vise versa;
– Spouses disinheriting each other while a divorce proceeding is pending;
– People disinheriting their siblings or the descendants of their siblings such as nieces or nephews.
These family members may be entitled to challenge the probate of the Will, so here are some Do’s and Don’ts regarding disinheriting family.
Do:
– Do mention them in your Will even if you are inclined to disinherit them.
For example, if my closest next of kin are my siblings and I do not wish to leave them anything for whatever reason, I should include a sentence or paragraph in my Will that says, “I intentionally have made no provision for [name of sibling(s)] in this, my last Will and Testament.”
Keep it simple. Such a sentence shows that you are cognizant of their existence — which goes to your testamentary capacity to execute a Will. You don’t have to get into why you are disinheriting them — see why below!
There are some people who believe that you should leave each disinherited relative $1 or $5 or $100, to show that you are aware of their existence. That is not necessary; all that is really necessary is a statement in the Will that you are aware of these person(s) and made a conscious decision to not include them.
Don’t:
– Don’t state the reason that you are disinheriting them.
As fun as it is to get the final word — and including it in your Will is pretty final when it comes to someone’s ability to have a come back of any sort — this could potentially be a big mistake.
Why? Because if the statement you make in the Will is untrue, that can go to whether or not you had the capacity to sign a Will. For example, disinheriting a child who you feel has stolen money from you may be a rational thing that someone might do. However, if you write in the Will that the child stole money and that is not true, it is very easy for a litigator to present you to the Court or the jury as someone who was not in touch with reality and lacked the capacity to sign a Will.
Finally, some states even allow the person who’s the topic of such a comment to sue your Estate civilly for defamation after your death. That would be a claim against your Estate which would drain the funds otherwise available to other beneficiaries.
2. Try to keep jokes out of your Will.
Everyone loves someone with a good sense of humor. Whether it’s someone who actually has a good sense of humor or someone like me who seems to be mostly amused by his own comedy, even if other people don’t find him so amusing. A Will is a serious legal document. You do not want to write things in your Will that would question your capacity. Here are the Do’s and the Don’ts.
Do:
– Take the signing of your Will very seriously. Do not make jokes when you are signing your Will in front of witnesses, even if you know them well. These witnesses might be required to come forward later at a deposition to testify about what happened. To the extent that they recall everything that was said — perhaps years ago — it would be unfortunate if their testimony was you kidding around, saying that you got drunk and high before you signed your Will.
Don’t:
– Don’t put things in your Will that are designed to make people laugh. For example, do not pretend that you have more assets than you have just to excite the beneficiary about getting something that doesn’t exist.
While it would be funny to write to a family member with whom you have a lukewarm relationship, that you have left them $20 million worth of Alphabet stock — even though you have never owned so much as any Alphabet stock — this goes directly to your capacity. The question would be whether or not you understand the nature and extent of your assets. Even if you are kidding, and even if people can testify that you were probably kidding, this is something that is going to be presented to a Court and potentially to a jury, which will not bode well for a smooth and seamless potential litigation. In summary, it is okay to make your Will your own. It’s important that you understand that a Will is not a cookie cutter, off-the-rack sort of document where one size fits all, and you have no room to tailor it to your individual needs. However, a Will is also a serious document and sometimes a couple of choice words can go a long way towards hurting your Estate and your beneficiaries. Choose wisely. If you would like more information on what to say, or not to say in your Will, please contact me.