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Writing Someone Out of Your Estate

Estate planning, or the process of creating a plan to protect assets during one’s lifetime and distribute assets to heirs after one’s death, is an important yet sometimes uncomfortable part of life. Factors to consider when estate planning include tax implications, asset protection and possible will challenges. A will is a legal document in which the testator declares who will manage the estate upon his/her death and which individuals, known as beneficiaries, will receive certain assets from that estate. This document can be very specific as to how assets, both taxable and probate, should be distributed. When someone passes without a will, the person dies intestate, meaning that assets will be divided according to the New York Rules of Intestacy, which may not accurately reflect the deceased’s estate planning wishes. Probate is the process by which a will is declared valid or invalid by a court and where the estate is administered.

An individual should have a will particularly if there is a desire to leave assets to children, non-spouses or the need to protect property or business ventures is a concern. Experienced estate planning attorneys in New York will able to draft a plan that not only reflects the testator’s wishes but will also be the most beneficial under state tax law.

Showing Intent to Exclude

Whether or not a testator can write someone out of the will depends on who will be disinherited, according to New York law. Even if someone is written out of the will, certain individuals may contest the will and even receive inheritance through state intestacy rules.

Spouses: unless a valid prenuptial or postnuptial was signed, a disinherited spouse may still be entitled to an elective share of the estate, which is the greater of $50,000 or 1/3 of the estate.
Minor children: whatever financial support a minor child is entitled to receive under state law will likely be ordered by the court, assuming the assets are available for disbursement.
Adult children: adult children, or any other relatives for that matter, may be disinherited. That being said, clear language unequivocally stating the intent to exclude the individual from the will is beneficial to show intent, should a dispute arise later.
Parents: just as with adult children, parents may be disinherited and clear language is required, however, if a testator dies without a surviving spouse or children, parents may be the next of kin entitled to the estate. For this reason, a different heir should be designated in the event of such a scenario.

New York state law places certain time limits on issues regarding wills. For example, if a spouse seeks an elective share, the request must be filed within 6 months of the date of service of the notice of administration of the decedent’s estate, or within two years of death, and the request must be filed in the county where the estate is probated.

Contact a New York Estate Planning Attorney

Whether you are seeking to create an initial will or make changes to an existing one in New York, contact an experienced estate planning attorney in NY at (718)-233-2903 to help facilitate the process and ensure your long-term plans are prepared properly. The estate planning attorneys at Alatsas Law Firm have years of experience drafting wills and can help protect your lifetime assets.