Requirements for Valid and Enforceable New York Wills

August 31, 2023

Going through the probate process is difficult for any family. This is especially true when a last will and testament is found to be invalid. The invalidity of a will can lead to infighting amongst your heirs, your assets not being distributed in accordance with your wishes, and more. By understanding New York’s requirements for a valid will, you can help to ensure that your loved ones are not put in such a situation. Retaining an experienced attorney can be a key step towards ensuring that your last will and testament is valid and enforceable. 

A New York Will Generally Must Be Signed Before Two Witnesses

One must be at least eighteen years of age and of sound mind and memory in order to make a valid will in the state of New York. New York will typically require that a will be written out on paper (with some exceptions, which are discussed below). Our state does not recognize the validity of electronic wills or “e-wills,” which are usually contained in a digital file, video, or audio recording. The individual making the will, known as the “testator,” must sign the document in the presence of two witnesses or otherwise acknowledge to two witnesses that he or she in fact signed the will. The witnesses must then sign the will in the presence of the testator. The witnesses must sign the will within thirty days of witnessing the testator’s signature or acknowledgment. Also, they must include their addresses along with their signatures.

The signatures of the testator or the witnesses do not have to be notarized for a will to be valid in the state of New York. The witnesses, however, may make an affidavit before a notary stating that they did witness a valid execution of your will. These affidavits will make your will “self-proving” which will allow it to be accepted into probate more quickly. The use of a self-proving will can reduce the amount of time that the probate process will take, and it can also reduce the possibility of challenges to a will.

Exceptions to the foregoing requirements exist for those who are members of the armed services. For obvious reasons, service members may find themselves needing to make or amend a will without the time or opportunity to go through the formal process described above. For those who find themselves in such a situation, the Court will acknowledge a holographic will if certain conditions are satisfied. The validity of such wills, however, can be hotly contested. It is strongly suggested that service members have their affairs in order prior to being deployed in order to prevent the potential for conflict.

The Consequences of Not Having a Valid Will

If you pass away without a valid will then you will be considered as having died “intestate.” This creates a situation in which your assets will be divided pursuant to an order of priority that has been pre-determined by the state of New York. This order of priority will be followed regardless of whether or not it is consistent with your final wishes. As an example, if one dies without a valid will then their assets will be divided as follows:

  • If the deceased is married but has no children – The spouse will inherit all of the deceased’s assets.
  • If the deceased has children but no spouse – The children will equally divide all of the deceased’s assets.
  • If the deceased had a spouse and children – The spouse will inherit the first $50,000 of the estate. The spouse will then inherit one-half of the remaining estate with the remainder being divided amongst the children.
  • If the deceased had parents, no spouse, and no children – The parents will inherit the deceased’s assets.
  • If the deceased had siblings, no spouse, no children, and his or her parents were deceased – The siblings will equally divide the assets.

The foregoing order will generally be upheld regardless of the level of contact. So, as an example, a single individual with two children would see his or her children equally divide the assets. This is true even if the person had a strong relationship with child number one but had been estranged from child number two for decades. Having a valid will can ensure against such an outcome.

There are three ways in which you can pass away without a valid will. First, and obviously, is a situation in which you did not create a will. Second, situations arise in which an individual believes they had created a valid will, but the document is not accepted by the Probate Court as a result of failing to meet the requirements listed above. Finally, there may be situations in which a will appears to be valid, but upon a challenge, it is struck down. Any of these situations will result in your assets being distributed as part of an intestate estate.

Keep Your Will Up To Date

A valid will can fail to offer adequate protections if it is not up to date. You must remember that your circumstances will continue to change after your will is finalized. New children or grandchildren may be born. You may become estranged from certain children or grandchildren. Also, you may dispose of assets listed in your will, or you may acquire new ones. If your will does not adequately cover and deal with the distribution of a given asset, then a dispute can arise amongst your heirs as to how it should be handled. Keeping your will up to date can prevent such issues. Regularly meeting with an experienced estate planning attorney can be one of the best ways to ensure that your will is up to date.

In addition to preparing and maintaining your will, an attorney can also assist with issues such as the creation of a trust, creating a power of attorney, and more. 

Retain a Long Island Estate Planning Attorney Today

If you need assistance with preparing a last will and testament, it is important that you retain counsel. A lawyer will make sure you understand all potential consequences which can flow from your decision and they will help you plan for the future. Our firm handles such matters and we pride ourselves on providing the highest level of service. Call our office today at (631) 234-3030, or contact us online today to speak with a Long Island estate planning attorney.