There are a variety of requirements as to who can write a will. To start with, you must be at least 18 years of age to write a will in the State of New York. An individual who has obtained the age of 18 is considered to be an adult and therefore capable of writing a will.
Testamentary Capacity
Individuals who write wills must have testamentary capacity. This means someone who writes a will must know what their assets are. They don’t have to know the exact value, but they need to know more or less what their assets are. Individuals writing a will must know who they would like to receive their assets upon their death.
Sometimes there are issues with regard to the mental capacity of the individual who seeks to write a will. In those circumstances, inquiry must be made with the individual’s physician as to whether that individual is competent to write a will.
Assets Which Pass Outside a Will
Some assets cannot be put into a will. An example of this type of asset is a life insurance policy which must have the beneficiaries indicated in the policies. Certain annuities also cannot be placed in wills.
The Home
If the individual writing a will is married, and the title to the house is maintained in both the husband and the wife’s name, you cannot have the title to the house pass through the will. In cases where the husband and wife are both named on the deed, this is called a tenancy by the entirety, and the house must pass outside the will. The deed itself acts to determine whether if one spouse dies the other spouse inherits. However, when the second spouse dies, the title to the house will pass pursuant to the terms contained in a will. There is also a type of deed called joint tenancy. In joint tenancy deeds, the survivor of the two joint tenants inherits the property. If the house is held as tenants in common, then each of the tenants in common can designate in a will who will receive the house upon their death.
The Beneficiaries
An individual writing a will can leave their assets to anyone he or she wants. Assets can be left to children, family, friends, charities and other organizations. I have repeatedly been asked as to whether a person can leave assets to their dog. This cannot be done. However, a trust can be set up to maintain the care of pets. It also should be noted if an individual seeks to leave assets to a minor (an individual under the age of 18) those assets should be left in a trust until such time as the minor reaches the age of majority (18 years of age).
If you have questions regarding whether a will or trust is right for you, the best way to obtain answers to these questions is to set up a consultation with a qualified, experienced estates lawyer.
