What makes a will valid in New York?
The execution requirements are in EPTL 3-2.1, and they are strict. A will must be:
- In writing
- Signed by the testator at the end of the document
- Signed or acknowledged in the presence of at least two attesting witnesses
- Declared by the testator to the witnesses to be their will
- Witnessed by two people who each sign within thirty days of one another
The formality is the point. A will is proved after the person who made it can no longer explain what they meant, so New York substitutes strict procedure for the testator’s testimony. A will that fails on execution fails entirely, regardless of how clear the intent was.
Handwritten and oral wills. New York does not generally recognize them. Narrow exceptions exist under EPTL 3-2.2 for members of the armed forces in actual service and for mariners at sea, and those exceptions expire. For practical purposes: a handwritten will is not a plan.
What a will does not do
This surprises people, and it is the most common planning failure we see.
A will does not control assets that pass by beneficiary designation. Retirement accounts, life insurance, and payable-on-death accounts go to whoever is named on the form, regardless of what the will says. An ex-spouse still named on a 401(k) receives it.
A will does not control jointly-held property with survivorship rights. It passes to the surviving owner.
A will does not avoid probate. It is the document that goes through probate. Avoiding Surrogate’s Court is a job for trusts and beneficiary designations.
A will does nothing during your lifetime. Incapacity is handled by a power of attorney and a health care proxy.
What happens without a will?
Your estate passes under EPTL 4-1.1. In outline: if you leave a spouse and no children, the spouse takes everything. If you leave a spouse and children, the spouse takes a set dollar amount plus half the remainder, and the children divide the rest. If you leave children and no spouse, the children take everything. Beyond that the statute works outward to parents, siblings, and more distant relatives.
Note also that a surviving spouse in New York has an elective share right, which lets them claim a statutory minimum against the estate regardless of what the will says.
Frequently asked questions
What makes a will valid in New York?
It must be in writing, signed by the testator at the end, declared to be their will, and witnessed by two people who sign within thirty days of each other. The testator must be at least eighteen and of sound mind.
Are handwritten wills valid in New York?
Generally no. Narrow exceptions exist for armed forces members in actual service and mariners at sea, and those exceptions expire after a set period.
Do I still need a will if I have a trust?
Usually yes. A pour-over will catches anything not transferred into the trust during your lifetime, and it is where guardianship for minor children is nominated.
Can I change my will?
Yes, at any time while you have capacity, by a new will or a properly executed codicil. Handwritten alterations on the original document do not work and can create problems.
Does a will avoid probate?
No. A will is administered through probate in Surrogate’s Court. Avoiding probate requires assets to pass outside the will.
Related: Estate Planning Advisory · Powers of Attorney · Health Care Proxy & Advance Directives · back to Estate Planning
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539