It is quite common for life events to change after a person writes their Last Will and Testament. Quite often, there may be a death or birth in the family, their can be a relocation to a new area, or a change in careers. Quite often, after a Will is executed, additional real property may be purchased that was not contemplated when the original Will was executed.
These scenarios are quite common and there are a few avenues that can be explored when one has a valid New York will and purchases subsequent real property either within or outside New York State.
Certain Wills that are executed in New York do not make any specific reference to real property in the context of the Will. In such a case, any real property that is owned by the Testator (person executing the Will) reverts to the residuary clause. Any property (real or personal) not specifically referenced in the Will falls under the contents of the residuary clause. In this case, it is not relevant whether real property is subsequently purchased since it is not mentioned by name.
An issue can arise in the case where a specific parcel of real property (i.e. house. Condominium) is devised to beneficiaries. Beneficiaries of real property under a Will are referred to as devisees. Quite frequently, the Testator will state in a specific bequest (or devise) that, for example, “I give, devise, and bequeath, my fee interest in the real property known as 123 Main Street, Any Town, New York to my children….”. Now the question arises as to what happens if that real property is known longer owned by the Decedent. In such a case, this gift or devise of real property lapses, and is no longer a valid bequest.
To alleviate the issue of a bequest possibly lapsing, one can always state the specific real property they may own at the present time, in addition to the phrase, “or any real property or properties that I may own at the time of my death”.
This extra provision serves as “catch-all” and can cover any and all real property owned by a decedent at the time of their death. The only additional issue may arise if real property is owned by a decedent in another state, in which case a separate ancillary probate proceeding may need to be filed. This proceeding would be an additional proceeding over and above the primary probate proceeding in the home (or domiciliary) state which occurs to have the Will deemed valid and the executor duly appointed by the Surrogate’s Court.