Making A Will

Topics covered:

What is a will?

A will is a legal document that specifies what the will-maker wants done with his/her property when he/she dies. It allows you to provide for loved ones you leave behind and give your assets, including your art, to the people and organizations you think should have it.

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What are the important parts of a will?

Although every will can be different, these are the important sections that will generally show up in a will. Typically, it is a good idea to have an attorney to help you draft your will to ensure that your wishes are accurately and fully recorded. Here is a resource that might help you find a lawyer in New York.

  • Naming executors:
    In this section, the testator names his or her executor(s). This section should be as specific as possible to ensure that there is no confusion as to whom the will refers to. For more information about choosing executors, please refer to our Executors page.

  • Naming beneficiaries:
    This section will name the individuals, organizations and institutions who are to receive a part of the estate under the will. As with the naming of executors, this section should be very detailed as to ensure that there will not be any confusion about who are your beneficiaries. Hopefully, all beneficiaries will be aware that they will be beneficiaries of your estate and be prepared to receive their portion. For more information about choosing beneficiaries, please refer to our Choosing Beneficiaries page.

  • Naming assets:
    It is important to understand that as a general rule, everything that you have not given away before you die will become a part of your estate. Therefore, your will needs to be specific about what you want to leave to each beneficiary. As a rule, wishes that you express outside your will – either orally or in a letter for example – will not be honored. That is one of the many reasons why creating a will is so important! Having a complete and detailed inventory will be very helpful when drafting this section. For more information about how to create an inventory, please visit our Inventory page.

  • Bequests (what you are giving away):
    In this section, you (the testator) will give (or “bequest”) part of your estate to the beneficiaries named in the will. Again, having a complete and detailed inventory will help you be specific as to which assets should go to which beneficiaries. As this section can be quite confusing, and unexpected conflicts or scenarios may arise, we strongly recommend speaking to a lawyer about your complete will.

  • Funeral Arrangements:
    You may want a portion of your estate to go towards paying for funeral arrangements. Additionally, you may have specific requests about funeral arrangements. Thus, you may want to include a section in your will that defines how you would like your remains to be handled.

  • Signatures:
    In this section, you, anyone preparing the will for you (i.e. an attorney), and the witnesses will sign and date the will. In most states like New York, there must be two witnesses to sign the will, although some states require more. In New York please remember that your beneficiary cannot be your witness.

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Do I need someone to write my will for me?

It depends. Most wills are drafted with the help of a lawyer, either to help write the document or to review it once it is written. Depending on the size of your estate and the complexity of your wishes, it may make sense to have a lawyer help you in drafting your will. However, a will does not have to be written by a lawyer or any other professional as long as it follows the laws laid out by the state in which the will is being executed. Larger estates or estates with complex bequests will benefit greatly from having a lawyer to ensure that your wishes are being accurately represented and will be executed properly.

Here are a few different considerations when deciding what type of assistance you want while writing and finalizing this important document:

Surrogate’s Court’s Small Estate Affidavit Program

The Surrogate’s Court of New York is the court that deals with estates. For estates of small size (less than $30,000), the Court has set up a simplified court procedure that you can begin online for free.

Click here to see the New York Surrogate’s Court Small Estate Program

Lawyers:  We cannot refer you to or recommend a specific lawyer. However below, we provide information that may help you find a lawyer suitable to your circumstances who can assist you in creating a will.

  • Choosing a lawyer early on in the process is very important for a number of reasons.  In particular, lawyers can help you with creating a legally valid will.  They can offer valuable advice regarding the tax consequences of how you deal with your artwork (i.e. whether you donate it to a charitable institution or give it to friends/family could have a significant impact on your estate’s tax burden). There are many ways to find lawyers who can draft a Will for a fee (Internet search, “Yellow Pages”, referrals, etc.).  In New York City, the New York City Bar Association runs a legal referral service. Call (212) 626-7373 for more information.
  • If you are unable to afford a lawyer, there may be attorneys that would be willing to take on your case pro bono (for free). For information about where to find free legal services for anyone 60 years of age or older seeking to create a Will in NY State try LawHelpNY.  In addition, if you live in New York City, you might contact the City Bar Justice Center Planning and Estates Law Project.  It runs a legal clinic to advise “low-income people on personal planning, end-of-life, and estate matters.”  The hotline operates Monday through Friday, and can be reached at (212) 626-7383. You can also use resources found at the New York Court’s Lawyer Locator page.
  • Volunteer Lawyers for the Arts is a not-for-profit organization that provides legal assistance to artists.  You may request assistance by clicking here.  NOTE: VLA has agreed to reduce the membership fee to $75 for access to significant pro bono services thereafter if the artist mentions this website when applying for membership.

Online Will Assembly Programs and “Hybrid” Resources

While consulting with an attorney in person is highly recommended,  there are a number of online resources one can use to complete a will in many states. You will have to pay for these services if you decide to use them but the fees are generally lower than retaining a lawyer. Many of these services allow you to consult with an attorney to review your will or to answer questions you may have for an additional fee. It is important to make sure that the service you use applies the law in your state as laws will vary from state to state. NOTE: We are not endorsing in any way any of the resources listed below. We provide them merely as information for you to consider. These tools include:

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How often do I need to update my will?

If you’ve successfully drafted a will at this point, congratulations! You have taken a very large step in ensuring that your artistic legacy will be carried on in the way that you want.

However, estate planning should not end here. A will reflects the wishes and assets of the testator at the time of the writing, but circumstances may change as time passes. You may want to change your beneficiaries, keep or donate different pieces, or perhaps you’ve created more work that hasn’t yet been accounted for in your will.

To decide when to revisit your will, you may want to ask yourself the following questions:

  • Have I changed my mind about who I want receiving my art and other assets?
  • Have I found new beneficiaries that I want to receive part of my estate?
  • Have I changed my mind about how I want my art to be treated once I am gone?
  • Have the circumstances in my life changed in a way that is relevant to my will?
  • Are all my beneficiaries ready to accept parts of my estate?
  • Do the organizations that have agreed to accept my art still exist today?
  • Have I created a significant amount of art that is not dealt with in my will?
  • Has the price of my art changed significantly, creating unwanted tax burdens on some of my beneficiaries?

If one or all of these circumstances apply, you may want to consider revisiting your will to make the necessary changes. Even if none of these circumstances apply, we recommend revisiting your will periodically to make sure you are comfortable with the way your estate will be executed.

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What happens if I don’t have a will?

If you pass on without a will, then your estate – including your art – passes to your next of kin in accordance with state law.  In New York, this would ordinarily be your spouse, but if you are single, then it would pass to your children. If you don’t have children, then it would pass to your next nearest relative – which can be an extremely arduous process undertaken by a state administrator. Finally, if the state can’t find a heir to your estate, it will escheat to the state of New York; that is, the State acquires title to your property because it has no owner.

Simply put: don’t be in a position where you are making a donation of your life’s work to the State unless that is your intention.  We highly suggest that you inventory your work and make a will.

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