A last will and testament is a legal document that contains instructions about who gets your belongings when you die and lets you choose a guardian for a minor child. A will is the first step to creating a solid estate plan, which can also include a power of attorney and a living trust. You need a will in New York to make sure the court doesn’t determine your heirs according to state law.
Live somewhere else? See our guide to making a will in your state.
Writing a will in New York
It’s perfectly legal to make a will without a lawyer in New York state, like through an online will making service, which is often cheaper. An estate attorney can charge as much as hundreds or thousands of dollars to prepare your will and the cost could be higher in the city than it would be in a smaller town. However, you may benefit from hiring a lawyer to draft your will in New York if you have a complex estate or many assets. (See when you should hire an estate attorney.)
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Last will and testament form
You may be able to find a free form to create a last will and testament for New York online. Keep in mind that free wills are typically broad, one-size-fits-all forms, which may leave more chances for the document to be challenged in court after you die. Additionally, these templates may not allow you to nominate a guardian or create a trust (testamentary trust) through your will.
New York will requirements
In order for your will to be valid, it must follow all the requirements set by the state, which usually pertain to the person writing the will (the testator) and how the will is constructed and executed. An invalid will won’t pass muster in probate and will prove a headache to your loved ones after you’ve died.
Anyone can write a will in New York if they are at least 18 years old and of "sound mind and memory" (testamentary capacity). They can name beneficiaries to receive personal assets and an executor to carry out the terms of the will.
An estate executor in New York must be competent and at least 18 years old. Non-citizens who are not New York residents can’t be executors unless there is a co-executor who is a resident of the state. Executors can’t be a former felon or have any issues with substance abuse, and may be disqualified if they cannot read or understand English. (SCP 707)
Witnesses and signing
New York wills must be signed by two witnesses within thirty days of seeing the testator sign it or getting the testator’s acknowledgement. The witnesses do not need to sign at the same time but they must provide their addresses. (§ 3-2.1)
Witnesses can be beneficiaries of the will, but unless there are two disinterested witnesses, the bequest they are supposed to receive may be void.
Handwritten and oral wills
If you handwrite a will, New York law requires you to have it witnessed the same way as typewritten wills. A handwritten will is only valid without witnesses under certain circumstances, such as 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. When made by a mariner who is at sea, the handwritten will expire three years after it’s written. (§ 3-2.2)
A spoken will, called a nuncupative will, is similarly only accepted under the circumstances listed above.
Do I need to notarize a will?
Wills in New York do not need to be notarized in order to be valid — but if you want to make the will self-proved with an affidavit, then it must be notarized. A self-proving affidavit makes it so that your witnesses don’t have to appear in court after you’ve died and greatly eases the probate process after you’ve passed away. (SCP 1406)
Changing a will
If you want to make changes to your will, you can do so by adding a codicil, or writing a new will and destroying the old one. Keep in mind that the codicil must be signed and witnessed again in order to be valid. Wills in New York can be changed up until the testator’s death.
Dying without a will in New York
When someone dies without a will, the court will determine their heirs based on state laws of intestate succession, and those heirs may not be who you would’ve wanted. To prevent that from happening, you need to create an estate plan, which often includes a will.
New York inheritance law
A surviving spouse has the right to inherit when someone dies without a will. This is how much they would receives in a few different circumstances:
|If the decedent is survived by a spouse and:||Surviving spouse's share|
|One more children||The first $50,000 plus 1/2 of the remaining intestate estate|
Siblings of the decedent, or their children (nieces/nephews)
Grandparents, or their descendants (aunts/uncles, cousins)
Descendants of great-grandparents
For someone to receive an inheritance, there must not be anyone left in the category above them. If an inheritor is dead, then their share typically passes to their children per stirpes.
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