Do I need a will

[jaelbe]

What is the name of your state?NY
My property deed is in my name and my husband name, with right of survivorship, he has children from his previous marriage, I do not have, I understand if one of us pass away, the other party has the ownership of the property, but by law what happen if both pass away at the same time, Do I need a will in order to leave my part to my family side, or it is not valid. Thanks for your advice.

 

[hexeliebe]

In what form is the deed? In other words, is is a Life Estate, Joint Tenent or other? That will give you an answer.

 

[divgradcurl]

"but by law what happen if both pass away at the same time"

In the case of a simultaneous death, for probate purposes, each spouse is assumed to have died before the other spouse. In the case of a joint tenancy with rights of survivorship, the title of the property is held in the name of the surviving spouse -- here, since each is assumed to have died before the other, neither gets the whole property, but each spouse will be able to dispose of a one-half share of the property to their heirs.

"Do I need a will in order to leave my part to my family side"

Probably not -- but if you don't leave a will, the property will transfer via NY's intestacy laws, which should ensure that your family ends up with most or all of your property, but maybe not in the fashion that you desire.

A will should not be that expensive to have done, and is important whenever you have property that you want to dispose of your way. Furthermore, the issues related to joint tenancy and having the property go through two probate actions (one for you and onefor your spouse if you die simultaneously) can be dealt with in a much cleaner way via a will.

 

[jaelbe]

Thank you very much for your quick answer. My case is joint tenancy with right of survivorship, I did my will myself, but I am not sure if it is valid, will you please tell me if in N.Y. the will has to be done by a lawyer and registered to be valid, or it is Okey to do myself. Thanks a lot for your answer again.

 

[divgradcurl]

Thereare no laws that state that a lawyer must write the will or that the will be registered. However, the will must be "executed" with the proper formalities. The formalities for a will in NY are:

"'§ 3-2.1. Execution and attestation of wills; formal requirements

(a) Except for nuncupative and holographic wills authorized by § 3-2.2, every will must be in writing, and executed and attested in the following manner:

(1) It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and by his direction, subject to the following:
(A) The presence of any matter following the testator's signature, appearing on the will at the time of its execution, shall not invalidate such matter preceding the signature as appeared on the will at the time of its execution, except that such matter preceding the signature shall not be given effect, in the discretion of the surrogate, if it is so incomplete as not to be readily comprehensible without the aid of matter which follows the signature, or if to give effect to such matter preceding the signature would subvert the testator's general plan for the disposition and administration of his estate.
(B) No effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator, or to any matter preceding such signature which was added subsequently to the execution of the will.
(C) Any person who signs the testator's name to the will, as provided in subparagraph (1), shall sign his own name and affix his residence address to the will but shall not be counted as one of the necessary attesting witnesses to the will. A will lacking the signature of the person signing the testator's name shall not be given effect; provided, however, the failure of the person signing the testator's name to affix his address shall not affect the validity of the will.

(2) The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately.

(3) The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will.

(4) There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will.

(b) The procedure for the execution and attestation of wills need not be followed in the precise order set forth in paragraph (a) so long as all the requisite formalities are observed during a period of time in which, satisfactorily to the surrogate, the ceremony or ceremonies of execution and attestation continue.

NY CLS EPTL § 3-2.1"

NY only recognizes nuncupative (oral) and holographic (handwritten unwitnessed) wills for seamen and members of the military, so it looks like you will have to follow all of the witnessing formalities as described above. Basically, you need to write it all out, sign it at the END, and have it witnessed by two witnesses. It's always preferably to have it witnessed by peop0le who both know you well enough to testify as to "sound mind an body" yet do not receive anything from the will.

So no, you don't have to use a lawyer as long as you follow the proper formalities, but it proably would be a good idea, especially if you want o work out the joint tenancy issues.

 

[jaelbe]

Thanks very much for your clear answer.