A will is a written instrument whereby an individual provides for the distribution of his or her property at the time of death. There are two critical reasons why you should have an attorney draft your will. First, skilled attorneys are equipped to deal with complex legal issues, including, for example, trusts created under the will for tax planning, or trusts created to benefit minor children or disabled children. In addition, an experienced attorney can ensure that the will is signed in compliance with New York State’s formal requirements for the signing of a will. The failure to follow these rules may result in that will being invalidated.
Ordinarily, the original will is left with the drafting attorney, and during the testator’s (the person who has made the will) lifetime, the only person entitled to the will is the testator him/herself or, if incapacitated, the guardian appointed for that incapacitated testator. Once the testator passes, however, the class of persons entitled to a copy of a decedent’s (the person who has passed away) will increases. For example, the executor named in the decedent’s will—the person responsible for administering the decedent’s estate—is entitled to a copy of the will. This is because the executor must know the identity of the beneficiaries, the amounts of the bequests, the restrictions, if any, on bequests, and the powers and responsibilities given to the executor by the will. Similarly, if the will creates a trust (called a testamentary trust), the trustee of any trusts created by the will—the person who is legally responsible for administering the trust—is entitled to a copy of that trust for the purposes of a carrying out the terms of the trust.
Additionally, the decedent’s heirs are entitled to a copy of the decedent’s will. This is because in New York, when the executor proves the validity of the will to the Court (commonly known as “probate”), the executor must notify the decedent’s heirs. When the executor notifies the decedent’s heirs that the will is being offered for probate, a copy of the decedent’s will must be attached to the notice. On the other hand, the named beneficiaries of a decedent’s will are not entitled to a copy of the will, unless, of course, the beneficiary is also an heir to whom the executor must provide the requisite notice. This is because, in general, a beneficiary who is not an heir does not have an opportunity to challenge the will, and so the named executor is expected to protect the interests of the beneficiary in the estate. However, as a practical matter, if a beneficiary requests a copy of a will, there is no legitimate reason for denying such request as wills are available for viewing at the Court by the public.
Finally, the accountant for the estate is entitled to a copy of the decedent’s will. This is because the accountant must understand the provisions of the will, including, for example, the allocation of estate income and estate principal in connection with the preparation of any estate taxes or income taxes, or both.
Ronald A. Fatoullah, Esq. is the founder of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also a partner with Advice Period, a wealth management firm, and he can be reached at 424-256-7273.