Will Drafting Attorneys
A last will and testament tells the court who receives your probate assets, who administers your estate, and who raises your minor children. It takes effect only at death, and it governs only property that passes through probate. Retirement accounts and life insurance with beneficiary designations, jointly owned accounts with survivorship rights, and anything already held in a trust pass outside your will, no matter what the will says.
That gap surprises many families. A will is essential, but it is one piece of an estate plan, not the whole plan. Our attorneys at Milvidskiy Law Group P.C. draft wills, and we begin every will by asking how each asset you own will actually pass.
Key Takeaways:
- A will controls only probate assets. Beneficiary designations, joint accounts, and trust assets pass outside it, so a will must be coordinated with how your assets are titled.
- A will must be signed with the formalities your state requires. New York, New Jersey, and Connecticut each require two witnesses, and each allows a self-proving affidavit that simplifies probate later.
- A will-based plan is enough for many people. A living trust earns its place when you own property in more than one state, want incapacity management without court involvement, or need privacy and control.
What a Will Does and Does Not Do
A will is a set of written instructions, signed with specific formalities, that a court follows after your death. A will can:
- Name an executor to gather your assets, pay debts and taxes, and distribute what remains.
- Name guardians for minor children.
- Leave specific items or dollar amounts to named people or charities.
- Direct who receives the remainder of your estate, and in what shares.
- Create trusts that hold an inheritance for a child, a surviving spouse, or a beneficiary with a disability.
A will cannot:
- Control accounts with a beneficiary designation, such as retirement accounts, life insurance, and payable-on-death accounts. The designation on file controls.
- Control jointly owned property with a right of survivorship. The surviving owner takes it automatically.
- Control assets already titled in a trust. The trust agreement controls.
- Avoid probate. A will works through probate; it does not bypass it.
- Manage your affairs during your lifetime. That is the job of a durable power of attorney, a health care proxy, and a living will.
Suppose a parent’s will leaves everything equally to three children, but the largest asset is an IRA naming only one child. The IRA goes to that child alone. The will divides only what is left. Coordinating beneficiary designations with the will is a core part of will drafting.
Core Provisions of a Well-Drafted Will
Executor
Your executor carries out the will: collecting assets, paying creditors, filing tax returns, and distributing the estate. Choose someone organized and willing to serve, and name a successor. When no relative fits the role, when you have no close family, or when family dynamics call for an impartial administrator, a professional executor can be named instead.
Guardians for Minor Children
A will is the standard place to nominate a guardian for children under 18. You can name one person to raise the child and a different person, or a trustee, to manage the child’s money. Our page on planning for parents of young children covers these choices in detail.
Specific and Residuary Bequests
Specific bequests leave a particular item or sum: a house, a piece of jewelry, a dollar gift to a charity. The residuary clause gives away everything else. A will without a clear residuary clause leaves assets to pass under intestacy rules, which defeats the point of having a will. We also address what happens if a beneficiary dies before you, and whether that gift lapses or passes to the beneficiary’s descendants.
Testamentary Trusts
A testamentary trust is a trust written into the will. It comes into existence at your death and holds a beneficiary’s share under a trustee’s management. Common uses include holding a child’s inheritance until a set age, providing income to a surviving spouse while preserving principal for children from a prior marriage, and protecting a beneficiary who receives needs-based government benefits. Testamentary trusts are a frequent tool for blended families.
Tax Apportionment
If your estate owes estate or inheritance tax, someone bears the cost. A tax apportionment clause says who. Without one, state default rules decide, and the result may shift the burden onto a beneficiary you did not intend.
No-Contest and Related Provisions
A no-contest clause penalizes a beneficiary who challenges the will and loses. Whether and how courts enforce these clauses varies by state, and a clause only deters a beneficiary who stands to lose something under the will. We discuss whether one fits your family.
How a Will Is Signed
A will is valid only if it is executed with the formalities your state requires. In general terms, that means a written document signed by you, or by someone at your direction and in your presence, and signed by witnesses. New York, New Jersey, and Connecticut each require two witnesses, but the details of how, where, and when the witnesses sign differ. Requirements vary by state, and a will that fails them may be denied probate entirely.
Each of the three states also permits the witnesses to sign a sworn affidavit, commonly called a self-proving affidavit, describing the signing. The affidavit lets the court accept the will without locating the witnesses years later. It is not required for validity, but we treat it as standard practice.
We supervise every will signing with disinterested witnesses and a consistent ceremony, and we keep a record of it.
Why Online and Do-It-Yourself Wills Fail
Form wills fail for predictable reasons:
- Improper execution. The document is signed without witnesses, with too few witnesses, or with a beneficiary acting as a witness. Some of these errors invalidate the will; others can void the gift to that witness.
- Ambiguity. “I leave my house to my children” raises questions when a child has died, a stepchild exists, or the house was sold.
- No coordination with non-probate assets. The form does not ask how your accounts are titled or whom you named on your beneficiary forms.
- Outdated terms. Forms are rarely revisited after a marriage, divorce, birth, death, or move to another state.
- Missing provisions. Many forms omit a residuary clause, successor fiduciaries, trust terms for young beneficiaries, or tax apportionment.
A will is tested exactly once, after you are gone and cannot explain what you meant. That is why the drafting matters.
Will or Living Trust?
For many people, a will-based plan is enough. If your beneficiaries are adults you trust, your family situation is uncomplicated, and you own real estate in only one state, a well-drafted will together with a power of attorney and health care documents may be all you need. Probate of a straightforward estate is manageable, and our attorneys handle probate and estate administration regularly.
A revocable living trust earns its place when:
- You own real estate in more than one state, which otherwise means a probate proceeding in each.
- You want a successor trustee to manage assets during incapacity without a court proceeding.
- You want privacy. A probated will becomes a public court record; a trust generally does not.
- You anticipate a contest, or your family situation, such as a blended family or an estranged heir, calls for continuity and control.
We give you a candid recommendation either way. A trust that is never funded is worse than a will, because it creates a false sense that probate has been avoided.
Pour-Over Wills
Every trust-based plan still includes a will. A pour-over will catches any asset left outside the trust at death and directs it into the trust. It also names guardians for minor children, which a trust cannot do. Whatever the pour-over will catches still passes through probate, so the goal is to fund the trust fully during life and keep the pour-over will as a safety net.
Updating Your Will
Review your will after any of the following:
- Marriage, divorce, or the death of a spouse or beneficiary.
- Birth or adoption of a child or grandchild.
- A move to a different state. A will validly signed elsewhere is generally recognized, but differences in fiduciary rules, spousal rights, and taxes may call for a new document.
- A significant change in assets, such as a new business, an inheritance, or a real estate purchase.
- A change in a named executor’s, guardian’s, or trustee’s ability to serve.
Small changes can be made by codicil, a signed amendment that requires the same formalities as the will. In most cases we recommend a new will instead. Never write on an existing will; handwritten changes can invalidate provisions or the whole document.
Our Client Care Program offers scheduled reviews so your plan keeps pace with your life and with changes in the law.
What Our Will Drafting Service Includes
- An initial meeting to review your family, your assets, how each asset is titled, and your goals.
- A recommendation on whether a will-based plan or a trust-based plan fits you, with reasons.
- A custom-drafted will with testamentary trusts, tax apportionment, and fiduciary provisions tailored to your situation.
- Companion documents as needed: durable power of attorney, health care proxy, living will, and HIPAA authorization.
- Review of your beneficiary designations and account titling so they work with the will rather than against it.
- A supervised signing with disinterested witnesses and a self-proving affidavit.
- Optional ongoing review through our Client Care Program.
When a Will Alone Is Not the Right Tool
A will does not:
- Shield assets from long-term care costs or creditors. That planning requires an irrevocable trust and lead time.
- Avoid probate, or avoid separate probate proceedings for property in more than one state.
- Plan for incapacity. It does nothing while you are alive.
- Provide for a beneficiary with a disability without carefully drafted trust terms.
If any of these describe your situation, a will is still part of the plan, but not the centerpiece. We will tell you so and walk you through the alternatives. Our overview of estate planning explains how the pieces fit together.
Schedule a Will Consultation
Whether you need a first will, a review of an existing will, or a candid answer on will versus trust, our attorneys can help. We practice in New York, New Jersey, and Connecticut and meet with clients in person and by video. Contact Milvidskiy Law Group P.C. to schedule a consultation.
This page is provided for general informational purposes only and does not constitute legal advice. Laws differ by state and change over time. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
What is the difference between a will and a living trust?
A will takes effect only at death and works through probate. A living trust takes effect when it is signed and funded, can manage assets if you become incapacitated, and passes assets to beneficiaries without probate. Most trust-based plans still include a pour-over will as a backstop and to name guardians for minor children.
Does a will avoid probate?
No. A will is the document the probate court follows; it does not bypass the court. Assets that avoid probate do so because of how they are titled, such as a beneficiary designation, joint ownership with survivorship rights, or ownership by a trust.
Do I need a will if I already have a trust?
Yes. A pour-over will directs any asset left outside the trust at death into the trust, and it is the document that nominates guardians for minor children. Without one, assets outside the trust pass under state intestacy rules.
What happens if I die without a will?
Your probate assets pass under your state’s intestacy rules, which give fixed shares to a spouse, children, or other relatives in an order set by law. The court chooses your administrator and, if you have minor children, decides who serves as guardian. The result may differ from what you would have chosen.
Can I write my own will?
You can, but do-it-yourself wills often fail because of improper signing, ambiguous language, missing residuary clauses, or no coordination with beneficiary designations. Those problems surface only after death, when they cannot be corrected. An attorney-drafted and supervised will reduces the chance of a dispute or an unintended result.
How many witnesses does a will need?
New York, New Jersey, and Connecticut each require two witnesses, but the details of how and when they sign differ by state. Witnesses should be adults who do not inherit under the will. Requirements vary by state, so confirm the rules that apply to you before signing.
What is a self-proving affidavit?
It is a sworn statement by the witnesses, signed before a notary or other authorized officer, describing how the will was signed. It allows the court to accept the will without locating the witnesses later. It is not required for the will to be valid, but it is standard practice.
Who should I name as executor of my will?
Choose someone organized, trustworthy, and willing to handle paperwork, deadlines, and family communication for months or longer. Name at least one successor. If no family member fits, or if you have no close family, a professional executor can serve.
Can a will name a guardian for my children?
Yes. A will is the standard document for nominating a guardian for minor children, and the court gives that nomination significant weight. You can name one person to raise the children and a separate trustee to manage their inheritance.
How often should I update my will?
Review it after any major life event: marriage, divorce, a birth or death in the family, a move to another state, or a significant change in assets. Even without a triggering event, a review every few years catches changes in the law. Use a new will or a formally signed codicil; never write on the original.
