A will is an important tool to distribute your assets and property, name guardians for your children, and appoint someone to handle your estate. But how do you make a valid will in New York? What should you include? This article has the answers to your frequently asked questions.
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What If I Die Without a Will in New York?
If you die without a will in New York, you are “intestate,” meaning a probate court will follow New York intestate succession laws. Usually, your estate goes to your spouse, children, or blood relatives. So if you have stepchildren that you have not adopted or a significant other, they will not inherit your estate.
And if you have a spouse, you may think they will inherit your whole estate. But without a New York will, under the laws of intestacy, they may only receive part of your estate.
What Does a Will Do?
A will is a legal document that is your instructions on what should happen when you die. In your last will and testament, you name the following:
- Who manages your estate (your personal representative)
- Who inherits your estate, meaning your real estate and personal property (your beneficiaries)
- Who cares for your minor children (a guardian)
A will also streamlines the probate process for your loved ones. Because you have made these decisions, the probate court, called the surrogate’s court in the state of New York, follows the terms of the will. As a result, you reduce the length of probate, saving time and money.
What Doesn’t a Will Do?
A will handles your personal property, real estate, and tangible assets, among other things. However, you have certain accounts and assets that do not transfer by your will, for example:
- Bank accounts and investment accounts
- Retirement accounts, pensions, and IRAs
- Life insurance policies and annuities
A bank account may have a transfer on death (TOD) designation, and insurance policies have a beneficiary designation. For all these accounts and policies, check that you name a beneficiary and a backup beneficiary. Without a named beneficiary, these assets will go into your probate estate.
Who Can Make a Will in New York?
To be eligible to make a will under New York law, a person making the will (called the testator) must meet the following requirements:
Age: You must be 18 or older or an emancipated minor.
Sound Mind and Memory: In New York, you must have a sound mind and memory at the time you sign your will. Sound mind and memory means the mental capacity to:
- Understand what it means to execute a will;
- Know what property you own; and
- Know who is affected by your will (your family, such as a spouse, children, and parents).
You may still have mental capacity if you are old, eccentric, or are accused of having memory issues, as long as you are mentally capable at the time of the will signing. It is best to talk to an estate planning attorney for legal advice if you have concerns about your mental capacity,
Does New York Have a Statutory Will?
No. New York does not provide a statutory will form. However, it is easy to make a will in New York so long as you follow the state’s legal requirements. You can create a legally valid customized will online that follows New York state law. You can also hire an estate planning attorney.
What Types of Wills Does New York Accept?
New York only accepts certain types of wills. So it is a good idea to know the various types of wills and if they are valid in New York.
- Handwritten Will: A handwritten will (also called “holographic will”) is typically written entirely in your handwriting and does not meet the signing and witnessing requirements. New York only permits holographic wills among members of the US armed forces, a person serving in military or naval service during wartime, or a mariner while at sea. And these wills expire one year after the end of service (or three years after for a mariner at sea).
- Oral Will: An oral will is called a “nuncupative will.” Similar to handwritten wills, New York only allows it for members of US armed forces, a person serving in military or naval service during wartime, or a mariner while at sea, and they expire after the end of service. However, unlike handwritten wills, an oral will must have two witnesses to testify of its making and provisions.
- Electronic Will: An electronic will means different things in different states. An electronic will may refer to making and storing a will in a digital format or only to the method of witnessing a will through electronic means. New York does not permit electronic wills, but as of January 31, 2023, they allow online notarizations. However, you may make a will online, print it out, and sign it to make a valid New York will.
If your will is not in an acceptable format, New York will not recognize it in probate court.
Can I Make My Own Will in New York?
Yes. New York allows you to make your own will. If you know what property you have, and know who your beneficiaries are, you can make a will. You do not necessarily need an attorney to draft the document.
One advantage of making your own will with an online resource such as FindLaw Legal Forms and Services is that it is easy to update as your life changes. You do not have to add an amendment or codicil to your original will; instead, create a new will customized to your current situation. It is a good idea to check your will every five years or if you have a major life event such as a death in the family or divorce. You may want to change beneficiaries, bequests, or guardians.
How Do I Make My Will Valid in New York?
New York has specific requirements to execute a will. They are not difficult but failure to follow these requirements may make your will invalid in New York. Here are the following requirements:
- Signature: You sign at the end of the will or direct someone to sign for you in your presence.
- Witnesses: Within 30 days of signing, you must have two witnesses to attest your signature in your presence. As the testator or will maker, you must either sign in front of the witnesses or tell them you have signed it (or directed someone to sign it in your presence) and state that it is your last will and testament. A witness who is also a beneficiary under the will or in the testator’s estate is an “interested witness.” Do not use an interested witness because any gift to them will become void and you will need two additional disinterested witnesses to sign your will. Therefore, it is a good practice to use two disinterested witnesses.
- Notary: New York does not require a notary for your will to make it valid. However, consider using a self-proving affidavit that a notary signs. As of January 31, 2023, New York permits online notarization, but the notaries must follow specific procedures and register with the New York Secretary of State.
- Self-Proving Affidavit: New York allows a self-proving affidavit in which your witnesses swear before a notary that they saw you sign the will (or you acknowledged your signature or someone else’s under your direction) and that you knew you were signing your will and that you were competent at the time. The benefit of a self-proving affidavit is that your witnesses will not have to testify in court, streamlining the probate proceedings.
Can I Disinherit My Spouse in New York?
Under New York law, you cannot disinherit your spouse. If you do not provide for your spouse or give them less than the statutory elective share, your surviving spouse may claim the greater of $50,000 or one-third of your estate. However, your spouse may waive their right to the elective share in a premarital agreement.
Can I Disinherit My Children in New York?
You cannot disinherit your children who are under 21 years of age. Additionally, any child born or adopted after the signing of your will (unintentional omission) may receive a statutory share of your estate. Therefore, if you want to disinherit a child, 21 years or older, you must specify their disinheritance in your will.
What Estate Planning Documents Should I Have in New York?
A will is an essential legal document to have when you die. But there are other critical estate planning documents to protect you and your family members during your life.
- A Power of Attorney. Who will handle your financial matters if you are suddenly incapacitated? You can designate an “agent” in a power of attorney document to manage your finances, pay your bills, and care for your family.
- A Health Care Directive. Similarly, who do you want to make medical decisions if you cannot communicate your wishes for health care due to an injury or severe illness? If you face a terminal illness or end-of-life condition, do you want life-prolonging measures? A health care directive, or living will, allows you to name someone you trust to get medical information and help with health care decisions when you can’t. Your health care directive also lets you state your wishes for end-of-life care. With a health care directive, you make these difficult decisions, so your loved ones do not have the burden of making them for you.
Fortunately, online estate planning templates make it easy to make a will and create additional estate planning documents in New York.