Wills in New York

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The Basics The Options And Commonly Asked
Questions
Wills in New York
mrobinsonlaw.com
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Also called a last will and testament, a will is
a legal document you can make as soon as you
reach adulthood.
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They serve as an important piece of any complete
estate plan
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and allow you to make specific decisions
concerning who will manage and receive your
assets when you die.
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What You Can Do
With Your Will
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Under New York law there are some decisions you
can only make through your last will and
testament.
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If you dont create a will that addresses these
decisions, you leave it up to state law to make
those choices for you.
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Through your will you can
Make inheritance decisions about your property
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Through your will you can
Make inheritance decisions about your property
Choose someone who will serve as guardian over
your young children
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Through your will you can
Make inheritance decisions about your property
Choose someone who will serve as guardian over
your young children
Create a testamentary trust and appoint someone
you trust to manage its property
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Through your will you can
Make inheritance decisions about your property
Choose someone who will serve as guardian over
your young children
Create a testamentary trust and appoint someone
you trust to manage its property
Name someone who will care for your property
after you die
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Legal Requirements
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Even though New York allows for different types
of wills
the most commonly created type is known as an
attested will.
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PRINTED
Attested wills are printed. They are most
commonly made by an attorney who prints the wills
for their clients after consultation.
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SIGNED
PRINTED
Once you write your will or have it printed for
you, you will then have to sign it.
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SIGNED
PRINTED
WITNESSES
You also have to sign your will in the presence
of two capable adult witnesses. After witnessing
you sign the will and affirming that it reflects
your wishes, the witnesses will then have to sign
the document as well.
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Other Wills
Though less commonly used, New York also allows
for oral and handwritten wills.
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Handwritten Wills Called holographic wills, a
handwritten will is one that you make entirely in
your own handwriting.
As long as no one else writes any part of your
handwritten will you do not need to have it
signed by witnesses.
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Oral Wills In very limited situations you might
be able to create an oral, or verbal, will.
Written wills are always preferable to oral wills.
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Who Can
Make a Will
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Testators
A person who makes a will is known as a testator.
This term is used to describe both men and women,
though you may see the word testatrix used to
refer to a woman who makes a will
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Age Only someone 18 or older can make a will in
New York.
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Age Only someone 18 or older can make a will in
New York.
Sound Mind You must be of sound mind in order to
make a will.
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If a court has ruled that you are legally
incapacitated or you are suffering from a medical
condition that makes you unable to understand
your choices or make decisions, you are not of
sound mind.
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Intent and Capacity
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When you make a will you have to intend that the
document you create represents your final wishes.
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When you make a will you have to intend that the
document you create represents your final wishes.
You also have to have legal capacity at the time
you do this.
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Intent
You must make the document of your own free will,
and without duress or undue influence.
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Capacity
You have to know what you own, who your family
is, and understand how your choices will affect
your property.
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Additional Provisions
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Optional Clauses
Though these clauses arent necessary, they
address decisions that you can only make through
your last will and testament.
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• Additional Provisions
• 7 Optional Clauses
• Apart from the requirements of making your
  will in writing, signing it, and having it signed
  by two competent witnesses, the document will
  also contain some very important clauses. Though
  these clauses arent necessary, they address
  decisions that you can only make through your
  last will and testament.
• Representative. After you die, your will must be
  admitted to a New York Surrogates Court to begin
  the probate process. You can name the person who
  will represent your estate during this process by
  nominating someone in your will. This person is
  known as a personal representative or an
  executor.
• Guardian. Parents with children under the age of
  18 should nominate a guardian in their wills. A
  guardian will take over parenting
  responsibilities should you die before the child
  reaches adulthood.
• Testamentary Trust. Unlike a living trust, a
  testamentary trust is one that is only created
  after you die. These trusts are commonly used to
  manage property you wish to give to a minor
  child. Because minor children cannot legally own
  property, the testamentary trust will own it
  until the child is old enough. You can create a
  will clause that allows for the creation of a
  testamentary trust, and you can appoint a trustee
  to manage it.

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Not Making a Will 8 You Leave Everything to the
State to Decide A lot of people never get around
to making a will. Because this situation is so
common, the state of New York, as well as all
other states. has laws that address it. If you
dont make a last will and testament you are said
to have died intestate. In such a situation, New
Yorks intestacy laws determine who inherits your
property. Even if you know how you want to
distribute your property after you die, intestacy
laws will still apply to your estate unless you
make a will. 9 The State Might Inherit Your
Property Even though it is very rare, its
possible that the state of New York could become
the legal inheritor of all of your property if
you die without a will. Through the law known as
escheat, New York serves as the final inheritor
of any intestate estate. If you die without a
will and no living relatives survive you, all of
your property will transfer to the state.
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• Questions
• 10 Do I have to have to notarize my will?
• No. New York law does not require testators
  to have their wills notarized.
• 11 Can I change my will?
• Yes. Wills are not contracts. If you change
  your mind about the choices you have made in your
  will you can change it at any time as long as you
  maintain capacity.
• Revoking a will. If you completely change your
  mind about the choices you have made in your will
  you can revoke the document entirely. This is
  best done by creating a new will or codicil, but
  you can also physically destroy the original will
  with the intention to revoke it.
• Codicil. If you want to update a will or make
  some minor changes you can create a codicil.
  Codicils amend the terms of a previously written
  will and must meet the same creation requirements
  as a will.
• New will. If you want to make significant changes
  to an old will it is best to create an entirely
  new one. New wills state that the old will is no
  longer valid and allow you to make entirely
  different choices.

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• Conclusions
• 12 Do Not Delay
• Making a will is something many people
  procrastinate about and never get around to
  actually doing. If you only learn one thing about
  wills, you need to understand that they are
  documents that you use to make choices that
  affect you and your family. If you dont take the
  opportunity to make those choices, someone else
  will make them for you.
• 13 After Your Will
• A will is not capable of serving all of your
  estate planning needs. There are some choices you
  can make that will have to be made through tools
  other than a will.
• Health care decisions. Wills state your choices
  about what you want to happen after you die. But
  what happens if you are rendered unconscious or
  otherwise incapacitated? In such a situation you
  will need to create medical directives that state
  the kinds of medical choices you want to receive.
  Wills cannot do this.
• Delegation of authority. In some situations you
  might want someone else to manage important
  affairs on your behalf. You can create powers of
  attorney to give others financial decision-making
  authority, although creating a Living Trust often
  is a better option, but you cannot do so through
  a will.
• Other options. The complete estate plan involves
  numerous different elements, and no two plans are
  identical.