Out of state wills or wills that are made in a foreign country can be filed by the executor or personal representative of the decedent with the New York Surrogate’s Court to commence a probate proceeding providing the will is valid in the state or country where it was made.
Customarily, for a will to be declared valid, a testator must be at least 18 years of age, the will must be signed and dated by the testator and witnessed, the testator must be of sound mind and cannot be coerced or under duress at the time of the making of the will.
Even if a will meets the validity test based upon these criteria, there are exceptions in New York as to when an out of state or will made in a foreign country may not be considered valid.
Most In-State Handwritten Wills Not Recognized – New York laws do not recognize a holographic will, which is handwritten and not executed or attested under New York laws, or a nuncupative, unwritten will, unless it was made by a testator who was in the active military service or a mariner at sea at the time the testator made the will.
Some Out-0f-State Handwritten Wills Can be Recognized – New York may recognize an out-of-state holographic will if the will was valid under the laws of the state where it was executed.
Objections to a Will Any interested related party to a decedent that may have a right to inherit by law and who may have been omitted from a will, can contest the will by filing a petition with the New York Surrogate’s Court and asking for a hearing on the matter. The person who is contesting the will must appear in court on the date of the hearing or that person gives up their rights to contest the will.
Intestate out of state will matters can be complicated and most family members or beneficiaries may not understand how the New York probate laws relate to determining the validity of a will. If the will is declared invalid, then the decedent will have been declared to have died intestate (without a will) and the distribution of the decedent’s probate assets are subject to New York statutory probate laws.
The best way to avoid having an out of state will declared invalid is for a testator to make a new will that is valid and recognized under the laws of the State of New York. Having a valid New York will gives a person the choice to leave their assets to their heirs and beneficiaries in the manner that they wish and will be less stressful and costly for family members.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.