Is My Will Up-to-date?


A New York Estate Lawyer will help you review your will. Many people who have executed wills are under the impression that they can be filed and forgotten. However, this is far from the truth, as changing circumstances necessitate a re-evaluation of the will's provisions.


An individual should review his or her will at regular intervals, but especially when:


  • There have been substantial changes in the value of the property.

  • There have been deaths, births or marriages which affect its provisions.

  • The will maker has become a resident of another state.

  • An executor, trustee or guardian can no longer serve or is no longer the best choice.

  • There are changes in business structures or new business ventures have arisen.

  • There have been changes in tax laws.


Important questions to ask about your will.


  • How long ago was your will made?

  • Have there been any births, deaths, marriages or divorces among the heirs named in your will which may warrant a change in the way you have distributed your property?

  • Was your will made while you lived in this state? If not, have you considered the effects of your change of residence from the standpoint of validity of your will and the ability of your executor to act?

  • Have you considered the use of a testamentary trust to assure your assets stay within your bloodline?

  • Have you considered the asset protection benefits of trusts?

  • Are guardian designations for your minor children up to date?

  • Are you aware of recent tax law changes? (See ATRA discussion below)


Portability of the Federal Estate Tax Exemption

As part of the American Taxpayer Relief Act of 2012 (ATRA), Congress made permanent the portability of the Federal estate tax exemption between spouses. Under portability, if the first spouse to die does not use his or her exemption from estate and gift tax, the executor of the first spouse's estate may elect to give the use of the remaining exemption amount to the surviving spouse -- the so-called deceased spousal unused exemption amount, or DSUE. (Important note: New York state does not recognize portability of a deceased spouse’s unused New York state estate tax exemption to the surviving spouse as the Federal law does.)


For decades, the basic estate plan for married couples with assets over the then applicable estate tax exemption amount has been the credit shelter trust / marital trust plan. All these plans need to be reviewed. For some, the credit shelter trust will still make sense… for others, portability will be the better option. For this reason alone, if you have not updated your will recently... you should.

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