The Nuts and Bolts of a Will Execution - February, 2017
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The Elder Law Minute TM
The Nuts and Bolts of a Will Execution
By Ronald A. Fatoullah, Esq. and Debby Rosenfeld, Esq.
As many know, a Last Will and Testament is a document in which a person (the “testator”) articulates to whom he/she wishes to leave all of his/her assets upon death. Wills are official documents and they often mean a great deal to the respective testator. Because a will is such an important document, it must meet the legal requirements set forth by the state in which the testator resides in order to be valid. A will is not effective until it is signed by the testator, and the actual will execution is critical to ensuring that the testator’s wishes are ultimately carried out properly.
To begin with, in New York State the will must be in writing and subscribed, i.e. signed, by the testator at the bottom of the document. The significance of the signature being required at the end of the will is that any writing that follows the testator’s signature will not be treated as part of the will. Accordingly, if an individual wishes to change or add any provisions to his/her will, he/she can either have a codicil prepared or simply have the entire will redone.
The testator must sign the will in the presence of two witnesses, but the witnesses need not sign in each other’s presence. Each witness must sign the will in the testator’s presence within 30 days of the testator’s signing and should include his or her address of residence with the signature. It is important for the witnesses to be disinterested parties. A person who is a beneficiary should not serve as a witness to the will. If a witness is in fact a beneficiary under the will, the document will still be valid but the bequest to the interested witness will be voided.
At the time of the will signing, the testator must confirm that the will he/she is signing is in fact his/her will and reflects his/her intent. The testator must also request each witness to sign the will thereby affirming that the testator knows that he/she is executing a will. In New York, this process is often referred to as the publication requirement, and is an integral part of the will execution.
All these rules are necessary in order to impart the importance and significance of the actual will. The testator needs to show the witnesses that he/she understands the nature of the document being signed, and these actions ultimately protect the authenticity of the will if it is challenged in the future. While estate planning attorneys might slightly vary their will signing practices, the basic rules should always be observed. Further, because the supervising attorney might not specifically recall each and every will signing, the fact that he/she has a set routine that is strictly adhered to makes any future testimony regarding a will execution valid and trustworthy. In other words, even if the attorney does not remember the actual details of a will execution that is later challenged, he can honestly maintain that he followed the same procedure for each and every will.
A will should always be drafted by an attorney who specializes in estate planning, and equally important, the signing of a will should always be supervised by an attorney who is well versed in this area.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Debby Rosenfeld, Esq. is a senior staff attorney at the firm. 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.