| MAKING A WILL
In a will, you can say who you want to be guardian of your children after you die. A will also lets you control how your possessions are given out after your death. You can also state your wishes for burial or cremation.
You should think about making a will, no matter how little you own. You may want your children, other relatives, or friends to have certain things, such as jewelry, furniture, or clothes. Nothing is too small or worth too little to include in a will.
To have legal effect, a will must go through a formal court procedure. Even if a will does not go through this procedure, it is good to have written proof of your wishes.
If you die without a will, under New York State law your property will be distributed to your closest relatives. It may not be distributed the way you want.
Generally, you can leave your property to anyone you choose. However, if you are married, your spouse has an automatic right to a share of your property, even if you name someone else and even if your spouse does not live with you.
HOW TO PREPARE A WILL
You need an attorney to make a will. Wills must be made according to certain rules that most people do not know about. Writing your own will is not a good idea.
It is important to see an attorney to make your will as soon as possible. This will help to prevent anyone from questioning whether you were too ill to make decisions or whether you were forced to make decisions by another person.
Choosing an executor
You must choose an "executor" when you make a will. The executor will be in charge of making sure that what you say in your will happens. After the person writing a will dies, the executor must "probate" the will. This means that he or she must go to Surrogate's Court in the county where the person who died was living at the time of death. If an executor is not named in your will, the court will appoint someone to do this. Choose an executor who is:
- someone you can trust;
- 18 years old or older; and is
- an American citizen or a legal permanent resident who, if possible, lives in New York State.
Choosing witnesses
Two people must witness a will. These witnesses will also sign the will. You may need to find witnesses to be present when you sign your will. The lawyer who writes your will may provide witnesses for you if you cannot. Choose witnesses who are:
- not going to receive anything under the will; and
- easy to locate and do not live far away, in case they must later appear in court.
Information you need to prepare your will
When you prepare a will, you will need the following information:
- the names, addresses and telephone numbers of the people who will receive money or property under your will (called the "beneficiaries");
- the names, addresses and telephone numbers of close relatives, even if they are not going to be beneficiaries; and
- a list of the things you own and where they are, including all furniture, household goods, bank accounts, life insurance policies, jewelry, and safe deposit boxes.
ONCE YOUR WILL IS PREPARED
Keep the original in a place where it will be secure but easily found, like a dresser drawer. Do not place it in a bank safe deposit box. (They are sealed for some time after death.) Give a copy to the person you named as executor and to any guardian named in the will. It is important to tell the executor where the original will is.
You can keep your will on file with the Surrogate's Court in the county where you live for a small fee. The will can be obtained at any time. This is different from filing (or probating) the will after your death. Never make changes directly on your will. If you make changes directly on the will, that will probably invalidate it. Never un-staple your will; this can lead to questions about whether the will is valid. You can change your will if you want to, but it must be done in a certain way. You must have the help of an attorney to make changes.
SMALL ESTATE ADMINISTRATION
If your property and money is worth less than $20,000 and the will does not appear to have been changed, your "executor," the person who carries out your will after your death (see page 24) should be able to put your will into effect after a quick procedure. This method is called "small estate administration" and requires little time or effort. The executor only has to go to Surrogate's Court with the original will and a certified copy of the death certificate and pay a small filing fee.
CONCLUSION
Reading this handbook is an important first step in the process. Remember, you are not alone; in addition to your family and friends there are many organizations that can help you through the process.
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© 2003 Gay Men's Health Crisis
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