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Making a Will in New York

How to make a will in New York and what can happen if you don't.

Steps to Create a Will in New York

Here's a quick checklist for making a will in New York:

  1. Decide what property to include in your will.
  2. Decide who will inherit your property.
  3. Choose an executor to handle your estate.
  4. Choose a guardian for your children.
  5. Choose someone to manage children's property.
  6. Make your will.
  7. Sign your will in front of witnesses.
  8. Store your will safely.

Why Should I Make a New York Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

  • leave your property to people or organizations
  • name a personal guardian to care for your minor children
  • name a trusted person to manage property you leave to minor children, and
  • name an executor, the person who makes sure that the terms of your will are carried out.

What Happens if I Don't Have a Will?

In New York, if you die without a will, your property will be distributed according to state "intestacy" laws. New York's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, great grandchildren, and great nieces and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in New York?

No. You can make your own will in New York, using Nolo's Quicken WillMaker. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Requirements for Making a Will in New York?

To make a will in New York, you must be:

Your will can dispose of your real and personal property. N.Y. Estates, Powers & Trusts Law § 3-1.1.

Generally, you must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) However, New York does allow nuncupative (oral) wills in very limited circumstances, such as for a member of the armed forces during a time of armed conflict, a mariner, or a person who accompanies a member of the armed forces during armed conflict. The oral will must be clearly witnessed by two people. It is also subject to become invalid shortly after the emergency situation (like armed conflict) expires. N.Y. Estates, Powers & Trusts Law 3-2.2. New York also recognizes holographic wills for the same purposes as nuncupative wills (N.Y. Estates, Powers & Trusts Law 3-2.2), but they are usually not a good idea.

How Do I Sign My New York Will?

To finalize your will in New York:

  • you must sign or acknowledge your will in front of two witnesses
  • you must declare to your witnesses that the document you are signing or acknowledging is your will, and
  • your witnesses must sign your will in front of you. N.Y. Estates, Powers & Trusts Law § 3-2.1.

You should sign at the end of the will; New York law may not recognize anything after your signature other than the self-proving affidavit (see below). New York law gives you 30 days to have your witnesses observe you signing or acknowledging your will, but you can have your witnesses sign at the same time as you do. Your witnesses must also write their addresses on the will. N.Y. Estates, Powers & Trusts Law § 3-2.1.

Holographic wills do not need to be witnessed, but they must be completely written in your own handwriting. N.Y. Estates, Powers & Trusts Law 3-2.2.

Do I Need to Have My Will Notarized?

No, in New York, you do not need to notarize your will to make it legal.

However, New York allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will.

Should My Will Name an Executor?

Yes. In New York, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In New York, you may revoke or change your will at any time. You can revoke your will by:

  • burning, tearing, cutting, canceling, obliterating, mutilating, or destroying the will
  • ordering someone else to burn, tear, cut, cancel, obliterate, mutilate or destroy your will in front of you and two other witnesses
  • making a new will, or
  • making a new writing that says you are revoking your will and following the same formalities you used to make your original will (see above). N.Y. Estates, Powers & Trusts Law § 3-4.1.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future.

Where Can I Find New York's Laws About Making Wills?

You can find New York's laws about making wills here: New York Consolidated Laws Estates, Powers & Trusts Article 3: Substantive Law of Wills Part 2.

For more on New York estate planning issues, see our section on New York Estate Planning.

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