How to make a will in New York

A guide to New York probate laws.

Elissa

Elissa Suh

Published June 12, 2020

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Who can write a will in New York?

Anyone at least 18 years old of “sound mind and memory” can write a will in New York.

What are the requirements for witnessing a will in New York?

Every will must be signed by two witnesses who are at least 18 years old.

Can witnesses be beneficiaries of the will in New York?

They can, but unless there are two disinterested witnesses, they may have to forfeit part or all their inheritance.

What are the requirements for choosing an executor in New York?

  • Age of executor: At least 18 years old (New York’s age of majority)
  • Must be competent
  • Non-citizens who are not New York residents cannot be executors unless there is a co-executor who is a New York resident
  • Cannot be a felon or have any issues with substance abuse
  • May be disqualified if they cannot read or understand English

Can you create a holographic will in New York?

Yes, but they are only valid when made by a member of the armed forces, or a person who accompanies the armed forces, while in actual military or naval service, and for one year after. A holographic will made by a mariner who is at sea can also be valid, but it will expire three years after it is written.

Is New York a community property state?

No, New York is not a community property state.

In a community property state, each spouse has an equal share of property acquired during the marriage. Property acquired before the marriage is considered separate property.

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Laws of intestacy in New York

In New York, when there is no will, the court will determine who receives the intestate estate based on the laws of intestate succession.

This is how much a surviving spouse receives in a few different circumstances:

If the decedent is survived by a spouse and:Surviving spouse's share
No childrenEverything
One more childrenThe first $50,000 plus 1/2 of the remaining intestate estate

Otherwise, when there is no surviving spouse, then the intestate estate will pass along in the following order:

  • Children
  • Parents
  • Siblings of the decedent, or their children (nieces/nephews)
  • Grandparents, or their descendants (aunts/uncles, cousins)
  • Descendants of great grandparents

For someone to receive the estate, there must not be anyone left in the category above them. If an inheritor is dead, then their share typically passes to their children by a per stirpes designation.

Filing the will in New York

During the testator’s lifetime, may file a will for safekeeping with any Surrogate’s Court. After the testator dies, the estate must file the will with the Surrogate’s Court in the county where the deceased resided. Wills can also be filed online.

Estate administration without probate in New York

No estate administration is necessary in New York if the value of personal property the estate is $50,000 or less, whether or not the decedent died with or without a will, unless there is a possibility of wrongful death. Real property (including land) must go through probate.

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About the author

Personal Finance Editor

Elissa Suh

Personal Finance Editor

Elissa is a personal finance editor at Policygenius in New York City. She writes about estate planning, mortgages, and occasionally health insurance. In the past she has written about film and music.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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