Dear Patrick: A Legal Q&A Column

Patrick McNamara is an elder law attorney who wants to answer your legal questions. Got one for him? Email them to Rockville Centre Patch editor Anthony Bottan at anthony@patch.com.

Dear Patrick,

I am looking to write my ungrateful son out of my will. The catch is that he already knows he is in it since it was originally written back in 2004. How can I make sure he does not get his grubby hands on my hard earned money?

Sincerely,

In a pickle Patty

--------------------------------------------------------------------------------------------

Dear 'In a Pickle',

Often when people have created a will, they think that they can make changes to it simply by crossing or whiting out provisions, writing in the margins, etc. These actions will not cause the changes that these people are seeking, and in fact, may invalidate the will altogether.

In order to effectively change your will in the State of New York, you would need to execute what is called a "codicil." A codicil is a document that amends a previously executed will. The codicil can add or revoke small provisions of the will or can change the will completely. In New York, a codicil must be executed with the same formalities as the Will itself. These formalities include signing the document in front of two witnesses.  

Patty, if you are interested in writing your son out of your Will, I encourage you to speak to an experienced attorney who can help you to draft a codicil that reflects your intentions.
-------------------------------------------------------------------------------------------
Dear Mr. McNamara,

How would you handle the Estate Planning for a husband and wife who each have grown children from their first marriage? They each would like to leave their assets to their own children.

Sincerely,

Baffled in Baldwin
--------------------------------------------------------------------------------------------
Dear 'Baffled',

There are numerous estate planning techniques available to satisfy the needs of the husband and wife in this scenario.  

Firstly, both spouses are free to create wills that leave a significant portion of their own assets to their own children. However, a law in New York called the "elective share" complicates the spouse's abilities to leave their assets to their own children entirely. In New York, the elective share law entitles each spouse to receive approximately one third of the other spouse's assets upon death, even if the spouse's will had directed that all the assets go to his or her own children.

The purpose of this law is to protect a spouse from being disinherited entirely and becoming a ward of the state.  As a result of this law, even if the husband were to say, "I leave all my property to my children and nothing to my wife," the wife would still have a legal right to approximately one third of her late husband's property.  

One way for the elective share issue to be avoided would be to have the husband and wife enter into a "postnuptial agreement." A postnuptial agreement is similar to a prenuptial agreement, in that it is a contract that allows the spouses to say whether or not their assets should go to each other if they were to divorce or either were to die. Here, the spouses can agree to basically give up their rights to receive under the elective share, allowing them to each leave their assets to only their own children.