Wills

(Image of Tracy Jong's Logo)

What can I expect?

We are pleased you are considering our office to prepare your will. Most new clients have many questions. We have prepared a brief list of things which you can do and think about to make our meeting productive and to ensure that we do not leave out any critical issues. We hope these will help focus your thoughts as we endeavor on this important task.

Will preparation will require two or three meetings. In rare cases, more meetings may be required. In our first meeting, we will discuss how you wish to dispose of your property and answer any questions you may have. We will take that information, prepare a draft will, and mail you the draft will to read in your leisure at home. In the second meeting, we will go over the draft of the prepared will, and if it all is in order, you may execute the will at that time. A third meeting may be required, and is often recommended, for final changes and execution. The first meeting will take two to three hours. The second and third meetings will take one to one and one-half hours.

How to prepare for our meeting:

  • Make a family tree of your relatives, even those to whom you do not intend to make a bequest (include all natural, adopted, step and deceased relatives)(do not forget illegitimate children or children of former marriages)
  • Make a list of property you own, being as specific as possible and approximating the value whenever possible
  • Determine to whom you would like to bequest your property in general
  • Make a list of specific items you would like to bequest to particular people
  • Make a list of any charities to which you would like to leave a bequest and obtain their address and taxpayer ID number
  • Determine who you consider a responsible person and would trust to act as Executor and/or Trustee and at least two alternates
  • Identify any pre-death gifts you have made and executed a written statement that same was to be considered as part of a pre-death testamentary distribution
  • Make a list of any questions you may have

Things to bring to our meeting:

  • List of all of your assets and their approximate value (and your spouse's assets if married), including pension and retirement assets, collectibles, real property, personal property, family heirlooms, jewelry, bank accounts, insurance policies, stocks, bonds, partnership interests, businesses, etc.
  • Existing Wills, codicils and trusts
  • List of your extended family members, including addresses
  • List of additional assets anticipated upon death (ex. life insurance proceeds, corpus of a trust)
  • List of Powers you may hold (Power of attorney, appointment, executor, administrator, guardian, etc. for other people)

Things to Consider:

  • If one of the beneficiaries predeceases me, do I want his/her share to pass to his/her heirs or to be shared by the other beneficiaries named in my will
  • Whether my Executor should be required to waive the commission he/she might ordinarily receive for estate administration duties
  • Whether debts/liens on property should be paid from my estate assets (mortgage on home, outstanding auto loans, etc.) (remember, may require sale of many of your assets to pay off the loan)
  • Whether anyone contesting my will should be precluded from receiving an inheritance

What to do after you execute a will:

  • Put your will in a safe place (not in a safety deposit box in your name)
  • Tell your executor or a trusted family member where all of your important documents are located
  • Make any beneficiary changes necessary to life insurance policies, annuities, trusts or pensions to carry out the provisions in your will
  • Physically destroy (tear, burn, etc.) all previous wills, codicils and trusts
  • Review your will every few years or upon a major life event to be sure you don't need to update your will with a codicil (Ex. births, deaths, marriages, divorces, transfers of assets, etc.)

Terms Used In Wills

Several terms frequently are used in wills for legal clarity.

The term "Testator" and "Testatrix" refers to the person making the will and whose property will be distributed.

The term "codicil" refers to a written amendment to the will.

The term "publication" refers to the formal ceremony for legal execution of a will.

The term "ad terrorem clause" refers to a provision whereby any person contesting a will forfeits their inheritance.

The term "surrogate" refers to the judge responsible for overseeing will probate.

The term "specific bequest" refers to a bequest of a specific item or specified amount of money.

The term "issue" means not only a person's children, but also any grandchildren and great grandchildren (i.e., all of the per­son's direct descendants).  Unless the will expressly excludes them, illegitimate children will also be included.  Legally adopted children and grand­children are included.  

The term "per stirpes" describes one way a bequest is to be divided among a person's issue.  This is the most common way people wish to distribute their assets.  Most people want bequests to their children to be divided equally among the children.  A per stirpes distribution does this, and it also governs what happens if any child has died.  If a child has died, his (or her) share is divided among his issue if he has any issue.  For example, presume that you have three children (Sue, Sally and John) and that your will provides for a bequest to your children per stir­pes.  If all three children survive you, each would get one third of the property.  If, however, John has died, his one third share would be divided among his children if he had any, or if he had no living issue his one third share would pass to Sue and Sally. 

The term "lapse" means that a bequest is to be ignored if the beneficiary is not alive when the bequest is to take effect.

The term "per capita" distribution means that every person of the same kinship receives an equal share. For example, if Sue had one child, Sally had two children and John had three children. If all of your children were bequested an equal one-third share of your estate but all had predeceased you, your grandchildren would each receive a 1/6 share of your estate (By comparison, under a per stirpes distribution, Sue's children would get 1/3, John's would get 1/9 and Sally's would get 1/6).

The term "Executor" or "Executrix" refers to the person who is to probate your will, file tax returns, make any discretionary decisions, and handle the paper work for your estate.

The term "Trustee" refers to the person who will administer any trust which you set up in your will.  A trustee may be appointed for minors or charitable trusts.

The term “bequest” or “devise” refers to a gift made after death through a will.

The term “intestate” refers to the circumstance where a person dies without a will or where the will is not entered for probate by the surrogate’s court.

The term "residuary estate" refers to everything not specifically bequested to someone. This is generally the bulk of your estate.

Credit is given to Drafting Libraries from Attorneys Computer Network (ACN) for some of the definitions.

What is in my Estate?

For wills executed after September 1, 1966, your “net estate” may include the probate plus the testamentary substitutes, such as jointly held property or bank accounts, property with rights of survivorship, U.S. Government Bonds, Totten Trusts, $10,000 or more gifts made within one year of death, gifts causa mortis (made in fear of impending death due to peril), and pension plans.  All of part of these transfers may be included in the net estate, depending upon the circumstances.  (Life insurance is not a testamentary substitute).  Some assets will pass outside the estate such as certain jointly held property and real property held in tenancy by the entirety (deeds held by a husband and wife jointly).

Certain exempt property is not included in the estate and passes automatically to the spouse or minor children.  This exempt property includes furniture and household items up to $10,000, pictures/tapes/videos/software up to $1,000, domestic animals/farm machinery/lawn tractor up to $15,000, car up to $15,000, and money or other personal property up to $15,000.

Other Documents You May Wish To Execute in Conjunction with Your Will

  • Power of Attorney
  • Living Will
  • Health Care Proxy
  • Trust
  • Statement of Funeral Arrangements
  • Ethical Will
  • Affidavit of Family Tree
  • Summary of Assets and Liabilities

Will Execution

The testator must not be subject to undue influence, fraud or mistake.  However, legal capacity for a will is less than legal capacity for a contract.  Even an incompetent or person with mental problems can execute a will during periods of lucidity.  The legal test for capacity to execute a will is that a testator (1) understands the nature of the act of signing a will, (2) understands the extent of his property, (3) knows the name and relationship of "the natural objects of his bounty," and (4) understands the scope and meaning of his will provisions. Alcoholism, eccentricity, physical infirmity and psychiatric treatment do not necessarily invalidate capacity (although they may be one factor to consider).

What is probate?

Probate is the Surrogate Court proceeding in which a will is judicially determined to be the decedent's last will and testament or where the decedent's intestate distributees are judicially determined. The will is administered, in other words, the directions of the testator, are carried out. If there is no will, the rules prescribed in the EPTL are followed to distribute the intestate's property.

What happens if I bequest a specific item and I sell it or dispose of it during my lifetime?

The bequest will be adeemed, or fail. In other words, it will be invalid because you don't own the property at the time of death to give it away. The proceeds of the sale of neither the item nor a replacement item will be substituted for the bequest. For example, you bequest a classic Corvette to X in 1980. In 1989, you sell the Corvette and buy a classic Model T. X will not inherit neither the Model T nor the cash value of the Corvette. If you only have part of the property at the time of death, the beneficiary will inherit that portion. For example, you leave your summer home on 100 acres to X. You sell 50 acres during your lifetime. X will inherit the summer home and the remaining 50 acres. However, this rule does not apply to general or demonstrative dispositions, such as bequest of cash.

Property in the estate must be sold, if necessary, to satisfy the bequest of a specific cash sum. For example, Father bequests $10,000 to his son. He also bequested $5,000 to his friend from the sale of his stocks and bonds. There are no stocks and bonds at the time of his death and there is only $5,000 cash in the estate. Other property must be sold to realize the additional $5,000 necessary for each bequest ($10,000 in total).

Disinherited Spouses

You can disinherit your children, but not your spouse (There may be special provisions in cases of abandonment or estrangement). To protect spouses from disinheritance, New York law gives, in certain cases, a surviving spouse domiciled in New York, an elective share: the greater of $50,000 or one-third of the estate. This only applies where there is a will disinheriting the spouse. If the spouse died intestate (without a will), the spouse will get $50,000 plus one half of the remaining balance of the estate if there are descendents or the entire estate if there are no descendents. There will be no right of election if the will leaves property of value in the amount the surviving spouse would be entitled under the elective share. This election must be made within six months of the issuance of letters testamentary, however, in some circumstances, the Surrogate Court may extend the period to twelve months.

Things to consider when choosing an executor or executrix

You should consider carefully your choice of appointment of an executor. An executor is the person you will designate to carry out your wishes and affairs after you have passed away.

You should be careful not to select an executor as "an honor" or because he/she is the eldest child. You should select the person you believe is most capable of handling the responsibilities to which he/she will be assigned. You should carefully consider whether he/she has the time and ability to carry out the estate administration. The executor may make funeral arrangements.

Executors may also be responsible to close all of your bank accounts, credit cards and other accounts, collect and pay bills presented to the estate, file pension and social security paperwork, clean out your personal belongings, liquidate or sell your property, distribute assets according to the will, prepare an accounting of all estate assets and liabilities, and prepare income and estate taxes.

You should select someone who has the time to devote to these responsibilities, will be emotionally capable of fulfilling the duties and who will be able to understand the sometimes complex procedures involved in estate administration.

Will liens on my property be paid out of my estate or will the beneficiary inherit the debts/payments?

New York law does not exonerate liens unless the testator specifically directs them to be paid out of the estate. In other words, if you bequest a home or car with a loan, the heir will have to make the loan payments after they inherit the property. The heir will not be personally responsible for the debt, however, the loan holder will be able to foreclose on the loan and take back the property if the payments aren't made. In your will, you may direct the outstanding loan be paid in full.

If I die without a will, will all of my property go to the government?

Not likely. In such a case, the deceased's property passes under the rules of intestacy known as New York Estates, Powers and Trusts law ("EPTL"). The EPTL prescribes whom property passes to in the absence of a will or the failure of a will to be accepted for probate. It may also come into play if a will is contested or deemed partially invalid ("partial intestacy"). EPTL passes property under traditional rules to "the natural objects of one's bounty." Property would pass to spouses, children, grandchildren, siblings, parents, grandparents or other named family members pursuant to the rules set forth in the EPTL. Only in the event that no one named in the EPTL can be located or fails to exist would property "escheat" to the state. This is a very rare circumstance.

What happens if I die without a will?

The most common myth is that your property will "escheat" to the state.  Actually, New York has a very common sense distribution scheme for your property.  If you fail to designate otherwise in a will,  Estates, Powers and Trusts Law (“EPTL”) will control. If you die intestate (without a will), your distributees (heirs) will inherit under the intestacy contained in the New York EPTL.  The most common examples are given below.

  • If you are survived by a spouse, but no children or grandchildren, your spouse will inherit everything.
  • If you are survived by a spouse and children, your spouse will inherit the first $50,000, plus one-half of the balance of the estate.  Your children and/or grandchildren will share the remaining estate.
  • If you are not survived by a spouse or children, your parents will inherit equally if both survive; all to the surviving parent if one survives.
  • If you are not survived by a spouse, children, or parents, your siblings and their children will inherit your estate.

Per Capita Distribution at Each Generation, also known as "By Representation"

Prior to September 1, 1992, descendents would inherit property per stirpes. Under that pattern of distribution, the property is divided into shares at the first generational level at which there were living heirs. Since September 1, 1992, New York has adopted a rule of distribution per capita at each generational level. Under this rule, the initial division of shares is made at the first generational level with living heirs, but the shares of deceased heirs are combined and then divided equally among shares at the next generational level. Thus persons in the same degree of kinship to the deceased always take equal shares.

Example:

Widow dies. Son A inherits 1/3 and grandchildren Q, X, Y & Z each inherit 1/6.

If this is not what you wish, you must have a will directing per stirpes distribution.

What if my spouse and I die simultaneously in an accident?

If there is sufficient evidence to prove that one lived longer than the other did, the estate will pass as if the one who lived longer survived. It will then pass under normal rules upon the death of the second victim. However, if there is insufficient evidence to determine who survived longer, New York's Uniform Simultaneous Death Act provides that the property of each passes as if he survived the other. One-half of the property passes as though the other party survived. This presumption may be overcome by a specific will provision.

Bequests to children

Father bequests his estate to be equally shared by all of his children and siblings. Who will share as a beneficiary? Unless the will expressly indicates otherwise:

  • Children by all marriages will share
  • Stepchildren will not share
  • Grandchildren raised by his mother as her own children will not share
  • Nonmarital children (born out of wedlock) will share
  • Adopted children will share
  • Natural children of father who were subsequently adopted by another nonrelated person will not share
  • Natural children who were adopted by relatives or the spouse of one natural parent may share
  • Child conceived by father before death but not yet born will share if born alive
  • Half-brothers and half-sisters will share

How much does it cost?

* The following costs are provided for reference only. Please contact our office for a fee quote for your situation.

Simple Will - $195

Health Care Proxy - $25

Living Will - $25

Durable Power of Attorney - $25

Will, health care proxy, living will and power of attorney - $250

*Ethical Will - $65

*(Up to 5 pages) non-legal service

Affidavit of Family Tree - $15

Summary of Assets & Liabilities - $40

Statement of Funeral Arrangements - $15

Codicil - $50 to $100

Trust - $500 or more, depending upon complexity

Consultation and Estate Planning - $150 per hour

Contact Information:

Visit our office at

2775 Buffalo Road, Suite 3,
Rochester, NY 14624
 (585) 247-9170
Fax: (585) 247-9171

Postal Address:

Law Offices of
Tracy P. Jong

2775 Buffalo Road, Suite 3,
Rochester, NY 14624

Electronic Mail:

Tracy Jong:

For inquiries related to patent drawings, call (585) 615-5240 or e-mail

To speak to a paralegal, call (585)247-9170 or e-mail