Do I Need a Lawyer to Draft a Will?
When you’re facing a legal matter, it helps to start with clear answers. This FAQ covers some of the most common questions New Yorkers ask about estate law, divorce law, and real estate law. Each answer is designed to help you understand your rights and the legal processes that may affect you. Continue reading and reach out to Raimondo & Sundquist LLP for answers to some of your most pressing questions.
Q: What are the formal requirements for a valid will in New York?
A: In New York, a will must be in writing, signed by the testator (or in their name), and attested by at least two witnesses present at the same time.
Q: Can I write my own will?
A: You can, but you never should. Even a small error can affect the validity of your will, leaving your beneficiaries to pick up the pieces after you’re gone.
Q: What is the difference between a revocable trust and an irrevocable trust?
A: A revocable trust in New York can be changed or revoked by the grantor during their lifetime; an irrevocable trust generally cannot. Life-time trusts must meet New York trust law requirements.
Q: When should I execute a durable power of attorney?
A: A durable power of attorney should be executed while you are competent so you can appoint an agent to manage finances if you become incapacitated. It helps avoid court-appointed guardianship.
Q: What is an advance healthcare directive and why is it important?
A: An advance healthcare directive lets you specify your medical treatment preferences and designate a healthcare agent in New York, so decisions are clear if you cannot communicate your wishes.
Q: Who can petition for guardianship of a person in New York?
A: In New York, a petition for guardianship (of the person or property) may be filed in Family or Surrogate’s Court by someone concerned that an adult is incapacitated and needs a guardian.
Q: What happens during the probate process in New York?
A: Probate begins when the executor named in the will files a petition in Surrogate’s Court with the original will, an estimate of the estate value, and lists of heirs; interested parties are notified.
Q: Can assets pass outside of probate in New York, and how?
A: Yes. Assets held in trust, payable-on-death accounts, jointly owned property, or property with beneficiary designations may bypass probate in New York.
Q: How are trustee duties different from executor duties?
A: A trustee in New York must manage the trust assets for beneficiaries, keep records, invest prudently, and report as required; an executor administers the deceased’s estate through probate.
Q: How often should I update my estate plan?
A: You should review and update your New York estate plan (wills, trusts, powers) whenever there’s a major life change (marriage, divorce, new child), or significant asset change, to ensure it reflects your wishes.
Q: How is child custody determined in New York divorce cases?
A: In New York, a court assesses what is in the “best interest of the child” when awarding legal or physical custody. There is no automatic preference for one parent.
Q: At what age does child support typically end in NY?
A: Child support generally continues until the child turns 21, unless the child is married, in the military, self-supporting, or otherwise emancipated earlier.
Q: How is the amount of child support calculated in NYS?
A: For combined parental income up to about $183,000, New York uses fixed percentages (17% for one child, 25% for two) multiplied by combined income, with adjustments for special circumstances.
Q: What is the legal standard for alimony (spousal maintenance) in New York?
A: The court considers factors such as length of marriage, income of each spouse, standard of living during marriage, and the age/health of spouses when awarding maintenance.
Q: How does New York handle property division in divorce?
A: New York uses the “equitable distribution” model: marital assets and debts are divided fairly (not always equally), considering contributions, future needs, and other factors.
Q: Can custody, support or alimony orders be modified after a divorce?
A: Yes. You can petition the court to modify child custody, child support, or spousal maintenance if there is a significant change in circumstances since the original order.
Q: What is considered marital property in a divorce?
A: Marital property generally includes assets and debts acquired during the marriage by either spouse, excluding separate property such as assets acquired before marriage or by gift/inheritance.
Q: Is mediation required in New York divorces for custody or property issues?
A: Many court systems encourage or require mediation for family law disputes to attempt resolution before trial, but the requirement depends on the county and court rules.
Q: Can I file for divorce on my own without a lawyer?
A: Yes, you may file on your own, but because custody, support, maintenance and property division are complex, legal counsel is strongly recommended to protect your interests.
Q: What happens if one party hides assets in a divorce?
A: If a spouse conceals assets, the court may impose penalties, adjust the division accordingly, and hold that spouse accountable; both parties must fully disclose financial information.
Q: What is the process for transferring residential real estate ownership in New York?
A: Residential real estate transfers involve contract negotiation, title search, review of disclosures, deed execution and recording, and payment of transfer tax and closing costs.
Q: Are there special rules for commercial real estate leases in New York?
A: Yes. New York commercial leases often include detailed provisions on rent escalation, maintenance responsibilities, indemnities, and dispute resolution; both landlord and tenant must negotiate carefully.
Q: Do property sellers have to disclose defects?
A: Yes. Residential sellers must disclose known defects and provide mandated disclosures (e.g., lead paint, property condition) under state and local laws before closing.
Q: What are the tax implications of buying commercial real estate in New York?
A: Purchasing commercial real estate may trigger property transfer tax, mortgage recording tax, and ongoing real estate tax liabilities; due diligence on tax implications is essential.
Q: How can I resolve a title defect discovered after purchasing property?
A: To resolve a title defect, you may pursue a corrective deed, quiet title action, title insurance claim, or negotiation with the other party, each depending on defect type and risk.
If you have further questions or would like to speak with an attorney about your case, please don’t hesitate to contact Raimondo & Sundquist LLP for an initial consultation today.
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