Making a will for a parent is not a paperwork task. Under New York law a will must meet strict formal rules to be valid, and a mistake can cause delay, a court fight, or the failure of the will altogether. When a parent wants to create or update a will, an attorney is what makes the document hold up in court.
A will controls who inherits, who manages the estate, and how debts and taxes are paid. New York’s statutes and court rules shape both what the will says and how it is signed. Online forms fail because they do not account for those New York-specific rules, and once a parent’s assets or family situation are even slightly complicated, legal guidance stops being optional.
Thinking Ahead to a Will Contest
If your parent is leaving someone out, that person may try to challenge the will later. Challengers typically allege undue influence and lack of capacity. If the parent is elderly, ill or taking medication, disappointed heirs may claim the parent did not understand what he or she was signing. An attorney documents capacity properly and supervises the signing, which is the protection that heads off expensive litigation in the Surrogate’s Court later.
Prior wills matter too. A new will revokes all earlier wills, but a person who did better under the old will than under the new one has a motive to contest. A lawyer can structure the will and the signing to minimize that risk.
The Capacity Documentation Process
When an elderly parent makes a new will, documenting capacity at the time of signing is what makes a later challenge hard to bring. The standard under EPTL § 3-1.1 asks whether the testator understood the nature and consequences of executing a will, knew the nature and extent of his or her property, knew the natural objects of his or her bounty (the family members and friends who might be expected to inherit), and understood how those elements fit together into a coherent plan. Our page on testamentary capacity goes into the standard in more depth.
The techniques we use to build that record are set out below.
| Technique | What it establishes |
|---|---|
| Attorney interview notes | The drafting attorney’s contemporaneous record of discussions showing the parent understood the will’s terms. |
| Medical evaluation | A capacity assessment by a physician or psychologist at or near the time of signing. |
| Video recording of the signing | The parent’s apparent understanding and free will, preserved as it happened. |
| Multiple meetings | That the parent’s wishes stayed consistent across several discussions. |
| Preserved witness testimony | Affidavits from the attesting witnesses about what they observed. |
The Independent Counsel Approach
When a child is helping a parent make a will, the parent, not the child, must be the attorney’s client. In practice that means the parent retains the attorney and signs the engagement letter, the parent’s appointments are scheduled directly with the attorney, the parent attends meetings without the child present whenever possible, the parent makes every decision about the will’s terms, the parent pays the legal fees (or the source of payment is otherwise documented), and the attorney’s communications go to the parent rather than through the child.
This structure protects against a later claim that the child unduly influenced the parent, because the attorney’s file shows the parent acting independently at every step.
Blended Families and Unequal Gifts
Blended families create particular risk. Children from prior marriages, a current spouse and step-children may each expect something, and New York law protects certain spousal rights regardless of what the will says. The will has to be structured so that it carries out the parent’s wishes while complying with the mandatory inheritance rules.
Spousal Rights: EPTL § 5-1.1-A
The spousal right of election is one of the most important limits on testamentary freedom in New York. Under EPTL § 5-1.1-A, a surviving spouse can elect to take the greater of $50,000 or one-third of the net estate, and the “net estate” for this purpose includes not only probate assets but also certain testamentary substitutes: joint accounts, payable-on-death accounts, certain trusts, gifts within one year of death, and others. The election must be filed within six months after letters are issued, and in no event later than two years after the date of death. A spouse can waive the right through a properly executed agreement, prenuptial or postnuptial.
So even if a will disinherits a spouse completely, the spouse can still take the elective share. Effective disinheritance of a spouse requires a written waiver, usually as part of a marital agreement. See our page on the spousal right of election.
Provisions for Children
Unlike a spouse, a child has no statutory right to inherit from a parent in New York; a parent can disinherit a child entirely. Within that freedom the will can divide the estate equally among the children, provide for per stirpes distribution so that a deceased child’s share passes to that child’s issue, treat children unequally for specific reasons, exclude a particular child, condition a gift on particular behavior or circumstances, hold a child’s inheritance in trust rather than distributing it outright, or add a no-contest clause penalizing a child who challenges the will.
In Terrorem Clauses
A no-contest, or in terrorem, clause provides that a beneficiary who contests the will forfeits what the will gives him or her. New York courts enforce these clauses, with limits. The clause reaches only contests that would invalidate the will, not other kinds of proceedings; certain inquiries, such as SCPA 1404 examinations of the witnesses and drafter, are protected from it; it does not apply to objections based on forgery or a later will filed in good faith with probable cause; and if the beneficiary actually succeeds in invalidating the will, the clause falls with it. A well-drafted clause deters weak challenges, because a beneficiary with a substantial inheritance at stake is less likely to file marginal objections. Our page on in terrorem clauses has more.
Tax Planning
Even a modest estate can raise tax questions. New York has its own estate tax, federal tax law may also apply, and the rules change from year to year. The will should be drafted with the current thresholds in mind.
Choosing the Executor
Choosing an executor is not only a personal decision. Executors have legal duties and are personally liable for mistakes, and some people do not qualify to serve under New York law. A lawyer helps evaluate who can serve and how the executor’s powers should be drawn.
Coordinating Non-Probate Assets
A will controls only assets that pass through probate. Retirement accounts such as 401(k), IRA and 403(b) plans, life insurance, annuities, payable-on-death bank accounts, transfer-on-death securities accounts, property held jointly with right of survivorship, and assets in a living trust all pass outside the will by designation or by operation of law. For the plan to work, those designations have to match the will. A mismatch between the two can defeat what the parent intended, so the attorney drafting the will should review and coordinate the designations at the same time.
Proper Will Execution
New York has strict rules for signing and witnessing a will, and an error in execution can invalidate the entire document. An attorney-supervised signing ceremony ensures that every formality is met and the will is accepted by the court.
Where to Keep the Original
The original will must be filed for probate. New York requires the original, not a copy, except in the specific circumstances of a lost will. The usual options for storing it each involve a trade-off.
| Location | Trade-off |
|---|---|
| Attorney’s vault | Many attorneys retain the original in their office vault as a service to the client. |
| Safe deposit box | Some clients prefer to keep control of the original in a bank safe deposit box. |
| Home safe | A fireproof home safe is acceptable but vulnerable to family interference. |
| Court filing | New York allows a will to be filed with the Surrogate’s Court during the testator’s lifetime for a fee. |
Whichever is chosen, the executor must know where the original is. Telling no one creates the risk that the will cannot be located after death.
Updating the Will
A will should be reviewed periodically. The usual triggers are a marriage, divorce or remarriage; the birth or adoption of a child or grandchild; the death of a beneficiary or of the named executor; a major change in assets, such as the sale of a business or a large inheritance received; a move to another state, since each state has its own law; a change in the tax law; a significant change in family relationships; or simply a change in the parent’s wishes. An out-of-date will can produce a result no one wanted.
Preventing Probate Disputes
Probate disputes are expensive and draining. A properly drafted will reduces ambiguity and narrows the grounds for objection, and an attorney who anticipates the problems drafts the will to withstand scrutiny. If you are helping a parent create or update a will, we assist families throughout New York City with estate planning that holds up. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected] for a consultation.
