New York Wills Laws

Your last will and testament, or “will,” is a legal document that tells your survivors how you want your estate given away after your death. Your estate is the assets you own, such as real estate, personal property, financial accounts, retirement accounts, vehicles, and so on. With a valid will, you decide who inherits your assets, who you nominate as guardian for your minor children, and who will administer your estate.

A will gives you control over these important decisions. Without one, the court applies state laws to make them for you. In addition, a will can promote peace and understanding among your family members and loved ones, a generous gift at a difficult time in their lives. This article discusses how to make a valid will in New York, the probate process, the pros and cons of a will-based estate plan, and some of the unique features of New York will law.

Requirements of a Valid Will in New York

New York law does not provide a statutory will form, but it does detail exactly how a will must be signed and witnessed. For a will to be valid, New Yorkers must follow these formal requirements, sometimes referred to as the “signing ceremony,” as well as other statutory requirements.

A person must have legal capacity to make a will in the state of New York. This includes being at least 18 years old and of sound mind and memory. Except for holographic and nuncupative wills, a will must be a written document and meet specific execution and attestation requirements. This means the written will must be:

• Signed by the testator (the person making the will) or at the testator’s direction at the end of the document (a person signing for the testator doesn’t count as a witness, but must also sign the will and should include their address)
• The testator must state to each witness that the document is their will
• Two attesting witnesses must sign the testator’s signature or acknowledgment (this may be done separately, but both must occur within a 30-day window)

New York law requires witnesses for a valid will, but not a notary. Including a notarized self-proving affidavit with your will can make probate easier because the witnesses to the will may not be required to testify in court. This simple step can save time and money during the probate process.

Holographic Wills and Nuncupative Wills

New York law recognizes holographic (handwritten, not witnessed) and nuncupative (oral, witnessed by at least two people) wills, but only under specific circumstances. For example, a holographic or nuncupative will may be valid if it’s written or declared by a member of the United States Armed Forces while serving during a war.

The Probate Process for a Will-Based Estate Plan

Even with a will in place, your estate must go through the probate process. This is the court-supervised process for transferring a decedent’s property. Of note, New York state uses the term Surrogate’s Court rather than probate court. The county-based Surrogate’s Courts oversee the process for distributing the decedent’s assets, applying the New York Surrogate’s Procedure Act and the New York Estates, Powers, and Trusts Law.

The process begins with a petition by someone (an executor, a family member, or an interested person) asking the court to open the estate. If you die “testate” (with a will), the probate process may include:

• Validating the will
• Appointing the executor
• Issuing “Letters Testamentary”
• Notifying interested persons
• Collecting and valuing your “probate assets”
• Notifying creditors
• Paying all debts, including taxes
• Distributing the remaining property to your named beneficiaries according to the will
• Closing the estate

Your probate assets are the assets you own that do not have a built-in transfer mechanism. Assets that transfer automatically at death, such as life insurance policies with a named beneficiary, homes owned jointly with right of survivorship, and bank accounts with a payable-on-death designation, usually pass without going through probate.

If you die “intestate” (without a will), the intestacy probate process is similar. The court appoints an “administrator” (by statutory priority) rather than an “executor” and issues “Letters of Administration” rather than “Letters Testamentary.” After all debts are paid, the Administrator distributes any remaining assets under New York’s intestate distribution law.

Pros and Cons of a Will-Based Estate Plan

A thorough estate plan includes all the legal documents that work together to express your wishes. This often includes incapacity planning (durable power of attorney for financial matters, a living will, and a healthcare proxy). An estate plan is usually will-based or revocable living trust-based.

A will-based estate plan often meets the needs of many estates and often has a lower upfront cost than a living trust-based plan. Unlike a trust-based plan, there is no need to retitle assets during your lifetime, but it only takes effect upon your death. It doesn’t include baked-in incapacity planning as a trust-based plan does. The will must be probated, which can add time and expense to the distribution process.

The probate process of a will is usually public, meaning creditors and others can often access sensitive information, including who is getting what under your will. By contrast, a trust-based estate plan usually avoids probate.

Special Considerations for New Yorkers

While estate planning basics are similar across all 50 states, each state has its own nuanced specific state laws. Some considerations important to estate planning in New York are:

• Spousal right of election: A testator cannot completely disinherit a surviving spouse. Under New York Law, a surviving spouse can elect to take their statutory share of their deceased spouse’s estate. This is typically $50,000 or one-third of the net estate, whichever is greater.
• New York Estate tax: Larger estates may be subject to New York estate tax. This often has a lower threshold than the federal estate tax.
• Statutory fiduciary compensation: New York law sets the commissions payable to executors. Larger estates may be subject to significant administrative fees.
• Small estates: A summary procedure, rather than full formal probate, may be available for smaller estates. Smaller estates are defined as those with personal property valued at $50,000 or less. If a decedent owns real estate but $50,000 or less in personal property, the personal property may still pass under the summary procedure.

Creating an estate plan can be challenging. There’s no shame in speaking with an estate planning attorney if you have questions or concerns.

When To Meet With a New York Estate Planning Lawyer

The legal requirements for a valid will in New York are quite specific. Using an online state-specific will form may be a good option if you’re creating an estate plan on your own. Depending on how complicated your finances are, getting legal advice from a New York estate planning attorney may be the better option.

If your estate is large, your family dynamics complex, or if you simply want the peace of mind that comes from working with a professional, consider meeting with a lawyer. With a one-on-one attorney-client relationship, you can create an estate plan that fits your specific needs and meets New York’s state-specific requirements.