How to Make a Will: A Step-by-Step Guide

When you have amassed a significant amount of property, whether it is real estate, bonds, stocks, or a substantial amount in the bank account, you begin to wonder how to make a will. Understandably, you want to leave your property to the proper people who you feel deserve to get your property. It shouldn’t go to strangers or even family members you have no affinity towards.

The good news is that there are a lot of standard forms available online with instructions that you can simply fill out, and voila, you have a will. The bad news is that attempting to make a will on your own makes the will more prone to being disallowed because you might make mistakes in writing it, in the language, and in the execution. For this reason, it is always advisable to consult a lawyer when you want to know how to make a will, in particular, and planning your estate, in general.

We don’t recommend you make your own will, but if you do, you can use our form and instructions that you can find here.

First step – listing your assets

The first step in learning how to make a will is to list down your assets. Now, a lot of older lawyers still believe in simply writing down physical assets, such as real property, bank and checking accounts, stocks, bonds, securities, personal property, transportation vehicles, home furnishings, and other properties.

The more technologically advanced lawyers know assets don’t only include physical ones, but also digital assets. For this reason, when listing assets, also include your digital assets in the inventory, such as websites where you earn income from, Paypal accounts, Venmo accounts, cryptocurrency accounts, loyalty points in your favorite stores, credit card points, frequent flyer miles, social media accounts, online subscriptions, such as Netflix, Disney+, and Spotify, and other digital assets you can think of.

Even if these digital assets are not really an asset, but in fact a liability where you have to pay something (such as Netflix, Disney+, and Spotify), your executor needs to know these so that he can immediately cancel the subscription upon your death.

If you’re leaving a gun, there are certain procedures that need to be complied with. It’s always better to leave guns with fellow licensed gun owners who are licensed to own firearms. Otherwise, these guns, if not disposed of correctly, will just go to the police.

Once you’ve listed down your assets, you need to think about who you want to leave that asset with. Think about contingent beneficiaries, so in case your designated beneficiary is unable to receive the gift, then you have a contingent beneficiary who can replace the primary beneficiary.

In New York, there are certain rules regarding succession. You cannot leave out your spouse from the will. If you leave your spouse with little to nothing, your spouse, under Estates, Powers, and Trusts Law § 5-1.1a, can elect to receive either $50,000 or 1/3 of your net estate, whichever is higher. So it’s important to take this New York spousal elective share into consideration when writing your will. You need to compute 1/3 of your net estate and give at least that amount to your spouse. If you think the amount equivalent to 1/3 of your net estate is too high, you need to consult a lawyer to see how you can minimize your estate using trusts and other legal documents.

Second step – drafting the will

The next step in learning how to make a will is to know what the contents of a will are. In writing a will, the following information should be there:

• Testator details. The testator is the person writing the will. It should indicate the testator’s address, and his intent to make, publish and declare the document to be his will.
• Revocation of prior wills and codicils. Whether or not prior wills or codicils have been executed, it is always safe to insert a provision revoking previous wills and codicils.
• Testator’s Legal Status, Relationship Details, Beneficiary Details. The testator should also state whether he is single or married, the names of his closest living relatives, whether he has children who are adopted, natural, or out of wedlock, or whether his parents are alive.
• Funeral details. If the testator so wishes, he can write down details about his desired funeral arrangements: where the wake will be, the funeral mass will be, and where he wants to be buried.
• Payment of debts. The testator should expressly declare that all his debts, taxes, funeral expenses, and expenses of his last illness be paid from his estate.
• The testator then states details of any specific gifts he wants to make. These specific gifts could be a particular sum or amount of money, a particular item of personal property (such as a car, painting, etc.), or anything of value (which could include digital assets). Beneficiaries of these specific gifts should be identified by their full name. If possible, their contact details should be indicated as well. If the specific item in the will had been disposed of prior to the death of the testator, generally, the gift adeems and the beneficiary will not receive anything, although some exceptions may apply.
• The testator then provides a beneficiary for the remainder of his property that has not been disposed of specifically.
• Nomination of Executor. The testator nominates his designated executor and also provides for an alternate executor, in case the first designated executor is unable to serve for any other reason. This provision would include any specific instructions on the powers of the executor and specific directions regarding any bond required to be furnished by the executor and any liability the executor may have in the performance of his functions.
• Other Miscellaneous Provisions. There may be other miscellaneous provisions that could be added such as procedures for beneficiary disputes, no-contest clause, and the like.
• Date and Signature of the Testator. The will has to be dated, and the testator has to sign at the bottom of his will.
• Attestation Clause. Two witnesses sign with their addresses and contact details, together with a clause stating that they certify that the will was signed in their sight and presence by the testator, who declared that the instrument he is signing is his last will and testament and that the witnesses, signed the will as witnesses at the testator’s request in the testator’s sight and presence.
• Self-Proving Affidavit: Although this is optional, lawyers include a self-proving affidavit executed by the witnesses to eliminate the need for the witnesses to testify during probate proceedings.

When the will is executed under the supervision of an attorney, there is a presumption that the will is validly executed. Getting an attorney to supervise the execution of the will minimizes any risk that the will will be disallowed by the court during probate.

Sample of a Will

Now that you have an idea about how to make a will, here is a will form and instructions. As previously mentioned, it’s always better to consult a lawyer when planning your estate and writing a will. The last thing you want is to do it yourself, and in the end, have the will disallowed. Your property will then be distributed in accordance with New York laws, which could be different from how you want your estate distributed.

If you want to learn how to make a will, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Assets That Pass Outside Your Will

Not everything you own is controlled by your will. Accounts with a named beneficiary, payable-on-death (POD) and transfer-on-death designations, jointly held property with rights of survivorship, life insurance, and retirement accounts such as IRAs and 401(k) plans pass directly to the named person, regardless of what your will says. When listing your assets, review every beneficiary designation, including contingent (backup) beneficiaries, and make sure they match your overall plan.

One trap that causes litigation is a former spouse left on a beneficiary form. Under EPTL § 5-1.4, a divorce, annulment, or declaration of nullity in New York automatically revokes a disposition or beneficiary designation in favor of the former spouse in many governing instruments, unless the instrument or a court order provides otherwise. Federal law (for example, ERISA-governed retirement plans) can override this statute, so do not rely on it alone — update the beneficiary form.

For digital assets, New York has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (Article 13-A of the EPTL), which allows your fiduciary to access digital assets. Access is smoother, however, when you leave a separate, secure inventory of your accounts. Do not put usernames and passwords in the will itself, because a will becomes a public court record after probate.

Family Rights, Guardianship, and Deceased Beneficiaries

When calculating your spouse's elective share, keep in mind that the "net estate" is not limited to assets passing under the will. It includes certain testamentary substitutes, such as joint accounts, Totten trusts, and gifts made in contemplation of death, so the elective share can reach assets you thought were outside your estate.

New York does not give adult children a forced share. You may disinherit a child, but to reduce the risk of a will contest you should do so clearly in the will. If you have a blended family — a second or third marriage, children from a prior relationship, or a spouse with their own children — the interaction between the elective share and your distribution plan can produce results you did not intend. This is a situation where a trust, such as a QTIP-style arrangement giving your spouse income for life with the remainder passing to your own children, becomes important.

If you have minor children, you can nominate a guardian in your will. Without that nomination, a relative would have to petition the Surrogate's Court for guardianship, which delays and complicates getting property to your children. Consider naming a separate person or trust to manage money for a minor, since a minor cannot directly receive a meaningful inheritance.

Also gather supporting family documents: marriage certificate, divorce judgments, prenuptial or postnuptial agreements, and the names and addresses of your distributees (the relatives who would inherit under intestacy). The Surrogate's Court will require the names of your distributees during probate even if they are not named in your will.

When deciding on specific gifts and the residuary, be aware of New York's anti-lapse statute, EPTL § 3-3.3. If a beneficiary who is your issue (descendant) or sibling dies before you, that beneficiary's share generally passes to their surviving descendants rather than lapsing back into the estate — unless your will says otherwise. If you want a different result, spell it out: state whether a deceased child's children should take their parent's share, or whether that share should be redistributed among your surviving children.

Who Can Serve as Executor and What It Costs

New York allows a family member, a friend, an attorney, or a bank or trust company to serve as executor. However, a non-domiciliary alien generally cannot serve alone as an executor in New York unless serving together with a New York resident (SCPA § 707), and certain felony convictions disqualify a person from serving.

Corporate executors (banks and trust companies) charge commissions on top of legal and accounting fees and may be appropriate for large or complex estates, while a trusted, organized family member is common for ordinary estates. Whomever you choose, executor commissions in New York are set by statute (SCPA § 2307) on a sliding scale based on the value of assets the executor collects and distributes, so the cost is largely predictable. Speak to the people you nominate so you know they are willing to accept the role.