Making a Will in New York: Frequently Asked Questions
If you are considering making a Will, there are a number of matters you need to consider.
Each state has its own legislation and requirements for writing, executing and witnessing a Last Will and Testament.
This article discusses the law of Wills in the state of New York.
What's the statute? The requirements of making, signing and witnessing a Last Will and Testament is set forth in the consolidated statute called Estates, Powers & Trusts (EPT), Article 3, Substantive Laws of Wills.
Who can make a Will? Section 3-1.
1 of the EPT statute requires that the testator (the person making the Will) be at least 18 years old and of sound mind.
How many witnesses do I need? Section 3.
2.
1 states that you must have at least two witnesses.
They must be 18 years of age or older.
Can my spouse be a witness? Whilst some states allow beneficiaries to witness the Will, section 3-1.
2 of the EPT statute invalidates any appointment or gift made in favor of a person that witnesses your Will (even though the rest of the document remains valid).
That's why you must use two non-interested independent witnesses to attest your Will.
Can I self-prove my Will? Yes.
Section 1406 of the Surrogate Court Procedure (SCP) statute allows the surrogate court to accept a self-proved Will without further witness testimony.
To have your Last Will and Testament self-proved, the subscribing witnesses must sign affidavits before an officer authorized to administer oaths.
This should be done at the same time as signing the Will.
A self-proved Will has a better chance of being accepted to probate.
The affidavits have the same legal effect as though the witness testimony was given in court (unless someone raises an objection to the Will).
This becomes very useful, especially if any of the witnesses have already died or cannot be contacted at the time of probate.
Does the Will need to be in writing? Yes.
Some states allow their residents to make an oral (nuncupative) Will.
However, in the state of New York, such wills are only available to members of the armed forces and mariners whilst at sea.
Should I appoint a successor executor? Yes.
The executor is the person who administers your estate.
This means they apply for probate, notify the appropriate persons (your beneficiaries, heirs and creditors), collect your assets and distribute them in accordance with your Last Will and Testament.
You want this person to be someone who is able to undertake the role impartially and for the benefit of the estate.
If you do not name an executor in your Will, then the court appoints an administrator.
Under section 1418 of the SCP consolidated statute, the beneficiaries named in your Will have priority for being appointed as administrator.
However, if there is no appropriate person able or willing to accept the role, then the administrator could end up being a stranger.
That's why it's always best to designate an executor and an alternate executor in your Will (just in case the first-named person cannot act).
Can my Will be contested? Yes.
Section 1410 of the SCP statute allows objections to be filed by any person who would otherwise be disadvantaged if the Will was admitted to probate.
This would include your spouse, children and other heirs at law.
If you are concerned that your family may contest your Will after you die, you should contact an attorney to have the document drafted properly and even to include a 'no contest clause'.
Section 3-3.
5 does however limit the operation of such a clause in certain circumstances.
For example where the contestant has probable cause for issuing proceedings to prove that the Will is a forgery.
In this situation, the clause would not apply to penalize the contestant.
Making a Last Will and Testament may seem relatively simple.
However, never take even the smallest issues for granted.
A Will is an extremely important document for estate planning purposes.
The nature of the document and the fact that it doesn't come into effect until after your death makes matters even more difficult.
How do you clarify your intention once you're not here? You need to take care and be very clear and specific when drafting your own Will and make sure you comply with the New York requirements for making a Will.
Each state has its own legislation and requirements for writing, executing and witnessing a Last Will and Testament.
This article discusses the law of Wills in the state of New York.
What's the statute? The requirements of making, signing and witnessing a Last Will and Testament is set forth in the consolidated statute called Estates, Powers & Trusts (EPT), Article 3, Substantive Laws of Wills.
Who can make a Will? Section 3-1.
1 of the EPT statute requires that the testator (the person making the Will) be at least 18 years old and of sound mind.
How many witnesses do I need? Section 3.
2.
1 states that you must have at least two witnesses.
They must be 18 years of age or older.
Can my spouse be a witness? Whilst some states allow beneficiaries to witness the Will, section 3-1.
2 of the EPT statute invalidates any appointment or gift made in favor of a person that witnesses your Will (even though the rest of the document remains valid).
That's why you must use two non-interested independent witnesses to attest your Will.
Can I self-prove my Will? Yes.
Section 1406 of the Surrogate Court Procedure (SCP) statute allows the surrogate court to accept a self-proved Will without further witness testimony.
To have your Last Will and Testament self-proved, the subscribing witnesses must sign affidavits before an officer authorized to administer oaths.
This should be done at the same time as signing the Will.
A self-proved Will has a better chance of being accepted to probate.
The affidavits have the same legal effect as though the witness testimony was given in court (unless someone raises an objection to the Will).
This becomes very useful, especially if any of the witnesses have already died or cannot be contacted at the time of probate.
Does the Will need to be in writing? Yes.
Some states allow their residents to make an oral (nuncupative) Will.
However, in the state of New York, such wills are only available to members of the armed forces and mariners whilst at sea.
Should I appoint a successor executor? Yes.
The executor is the person who administers your estate.
This means they apply for probate, notify the appropriate persons (your beneficiaries, heirs and creditors), collect your assets and distribute them in accordance with your Last Will and Testament.
You want this person to be someone who is able to undertake the role impartially and for the benefit of the estate.
If you do not name an executor in your Will, then the court appoints an administrator.
Under section 1418 of the SCP consolidated statute, the beneficiaries named in your Will have priority for being appointed as administrator.
However, if there is no appropriate person able or willing to accept the role, then the administrator could end up being a stranger.
That's why it's always best to designate an executor and an alternate executor in your Will (just in case the first-named person cannot act).
Can my Will be contested? Yes.
Section 1410 of the SCP statute allows objections to be filed by any person who would otherwise be disadvantaged if the Will was admitted to probate.
This would include your spouse, children and other heirs at law.
If you are concerned that your family may contest your Will after you die, you should contact an attorney to have the document drafted properly and even to include a 'no contest clause'.
Section 3-3.
5 does however limit the operation of such a clause in certain circumstances.
For example where the contestant has probable cause for issuing proceedings to prove that the Will is a forgery.
In this situation, the clause would not apply to penalize the contestant.
Making a Last Will and Testament may seem relatively simple.
However, never take even the smallest issues for granted.
A Will is an extremely important document for estate planning purposes.
The nature of the document and the fact that it doesn't come into effect until after your death makes matters even more difficult.
How do you clarify your intention once you're not here? You need to take care and be very clear and specific when drafting your own Will and make sure you comply with the New York requirements for making a Will.
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