Question 1: My husband and I had wills done when we got married in Florida 18 years ago. Are these Florida wills valid in Pennsylvania, or should we execute new ones?
Answer: I presume that a Florida attorney assisted you in drawing up your wills. If so, the presumption is that those wills are valid under Florida law.
Generally, if the will was validly executed under Florida law, Pennsylvania will accept it for probate. However, it is always a good idea to have the will redrafted in accordance with Pennsylvania law.
Because your Florida wills were executed 18 years ago, you should sit down with an attorney to review its terms and conditions. For example, have you been blessed with any children since then? Have you appointed a minor guardian for those children in the event of your untimely deaths?
Do you now want to designate different persons who will administer your estates: the executor? What I have previously written is pertinent to you: “Oftentimes, people want to avoid squabbles among siblings as to who will be in charge of their family affairs. You should choose someone to be your executor who either has some financial acumen or knowledge of the law – or better yet, both.”
If you have not already done so, you may want to set up a trust to benefit a charity or your children.
You may have a life insurance policy or retirement account that names a beneficiary as part of the process. If you have something different listed in the will, what is on the account takes precedence.
Remember that wills crafted by lawyers in Pennsylvania enjoy a strong presumption of validity.
You should have prepared a durable power of attorney. Why? If you become incapacitated or disabled, unable to manage your affairs, the need arises to have a durable power of attorney in place. But certain requirements are necessary for a valid power of attorney. Thus, you should retain an attorney for its preparation.
Finally, you need a living will, health-care instructions/directives. Your living will translates to the possession and control of your own persons. In sum, you are now controlling your own future health-care instructions, ultimately removing the burden from your family members and medical providers.
Question 2: I am a 63 year- old woman, and my husband is 69. We own a co-op in New York City with no mortgage. We have no children.
I am still working as an independent contractor in the fashion industry, and my husband is basically retired but works two days a week as a host at a restaurant in New York.
We do not have a lot of income, and we know we should have a will in the event that we die at the same time. We have very small savings and no other investments. He has no nieces or nephews. I have two nephews who should inherit the co-op in the future.
May I put this in writing, have it witnessed and notarized without using an attorney?
Answer: In New York, any person 18 years of age, or a minor lawfully married, and of sound mind may make a will. “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
A will must be in writing, signed by the person making it (testator) and by two witnesses. Each witness must sign the will in the presence of the testator within 30 days of the testator’s signing and should place their address of residence with their signatures. If the testator cannot physically sign his name, he may direct another party to do so. The person who signs the testator’s name must state on the will he did so, must sign his own name and state of residence. This party may not be one of the two required witnesses.
Generally, it is recommended that the witnesses to the will be disinterested, which means that they are not a beneficiary of the will. In New York, any gift to a witness is void unless there are at least two disinterested witnesses to the will.
Do you need a lawyer to make a will in New York? No, you can make your own will in New York. But given your situation, you should consult an attorney to review all of your assets for reasons set forth in my answer to question 1. Do not be penny wise and pound foolish!
Do you need to have your will notarized? No. In New York, you do not need to notarize your will to make it legal.
Final word
You and your husband have an immediate need for a durable power of attorney and living will, health-care directive, for reasons explained in the answer to question 1.
To ask a legal question, email AskAttyBernie@timesonline.com or send mail to Ask Attorney Bernie, c/o Beaver County Times, 400 Fair Ave., Beaver, PA 15009.