More than 55% of Americans do not have a will. In a society of nearly 350,000,000 people, it is hard to believe that 192,000,000 people are not prepared for the inevitable. As a NY estate lawyer this number scares me. Most people try not to think about their affairs until it is too late. When someone passes without a will, the laws of the State where they maintain their residency governs what, how and to whom the proceeds of their estate will be transferred. This is often a nightmare for everyone involved.

As an experienced NY estate lawyer, I have both probated wills and handled an unfathomable number of administrations for families when there was no will. I can honestly say, not having a will is a recipe for disaster nearly every time.

There are a number of common misconceptions surrounding wills. A will not only designates who will receive your possessions after you pass but also designates an executor who will control, administer and maintain a semblance of order after you are gone. Any NY estate lawyer can attest to the importance of this last part. After someone passes, any and all unresolved issues amongst the heirs tend to instantaneously exacerbate in a very profound manner.

Another misconception is who gets what? Most people automatically assume that if you pass without a will, your spouse will automatically inherit your estate. Any NY estate lawyer will tell you this is not the case in NY. In NY, if you pass without a will your spouse is entitled to the first $50,000.00 of your estate proceeds plus one half the remainder, with the other half going to your children. To make matters worse, not having a will prevents you from appointing a guardian after you are gone for any and all children you may have who are minors.

The only thing worse than not having a will, is having a holographical will. Unlike a normal will that is usually signed by the testator and two witnesses, a holographical will refers to any will that has been entirely handwritten and signed by the testator.

Any good NY estate lawyer knows that New York State does not recognize holographical wills, in that all wills are required to be accompanied by self authenticating witness affidavits. This is because NYS gives great deference to the will as a powerful testamentary instrument capable of dispensing entire fortunes with a single pen stroke. Without the authenticating witness affidavit, the holographical will is deemed unreliable.

However, nearly half of the remaining states recognize holographic wills and admit them to probate. Whether this is good practice remains to be seen.

Estate of Thomas Kinkade:

Thomas Kinkade was a famous artist who passed away in April of 2012 at the age of 54 from an apparent drug overdose. Mr. Kinkade left behind a tremendous fortune that included houses and tens of millions of dollars in cash and art. Additionally, the late painter left behind a tremendous estate disaster.

As is the case with most gifted artists, Thomas Kinkade’s personal life was a train wreck and his financial affairs were even worse. Thomas Kinkade had an estranged wife, Nanette Kinkade, whom he had been separated from for nearly thirty years and had 4 daughters with. Thomas Kinkade also had a girlfriend, Amy Pinto whom he had been with for eighteen months.

Where it gets interesting is after his passing, Nanette Kinkade, Thomas’s estranged wife came forward with a properly drafted and executed will from the year 2000, leaving his entire estate to his four daughters. Normally this will would be admitted to probate and the estate disbursed accordingly. However, Thomas Kinkade lived in California where holographic wills are legal. As such, it is no wonder that Thomas’s girlfriend of 18 months came forward with a will of her own which looked more like scribble scrabble or abstract art than an actual will. A copy of which you can see below. Pursuant to this holographic chicken scratch of a will, the entire estate would pass to the girlfriend of 18 months.

As stated above, since the State of California acknowledges these holographic wills, it is likely that this case could be dragged out through the courts indefinitely. As a NY estate lawyer with extensive probate experience, I am relieved that NY does not acknowledge these dubious instruments. Their reliability is suspect as they are often drafted near the end of one’s life while in the company of someone who does not have their best interests at heart.

A prolonged will contest such as this one is likely to cost millions of dollars to all the parties involved. If you or a family member would like to sit down with a NY estate lawyer to draft a will or plan an estate, feel free to call the Law Offices of Jason W. Stern & Associates at (718) 261-2444 for a free consultation.

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