A guide to New York probate laws.
Anyone at least 18 years old of “sound mind and memory” can write a will in New York.
Every will must be signed by two witnesses. The witnesses may sign the will upon the testator’s acknowledgement of the will even if they did not see the testator sign. The witnesses do not need to sign at the same time so long as they sign within thirty days of one another.
They can, but unless there are two disinterested witnesses, they may have to forfeit part or all their inheritance.
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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
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.
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.
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|
|One more children||The 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:
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.
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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.
You avoid formal probate in New York by using a small estate affidavit. You can only adminster estates this way when the total value of personal property is $50,000 or less, regardless of 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 formal probate procedure.
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Elissa Suh is a personal finance editor at Policygenius in New York City. She has researched and written extensively about finance and insurance since 2019, with an emphasis in esate planning and mortgages. Her writing has been cited by MarketWatch, CNBC, and Betterment.
Elissa has a B.A. in Film Studies from Barnard College.
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