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How to Write a Will in New York City: A Step-by-Step Guide
Once you have accumulated property worth protecting, whether real estate, stocks, bonds or a substantial bank balance, you start to wonder how to write a will. You want your property to go to the people you choose, not to strangers or to relatives you have no affinity with. There are plenty of standard forms online with instructions that you can simply fill out and, voila, you have a will. The bad news is that a will written without a lawyer is more prone to being disallowed, because mistakes creep into the wording and, more often, into the execution. That is why it is always advisable to consult a lawyer, both about the will in particular and about planning your estate in general.
We do not recommend writing your own will, but if you do, you can use our form and instructions. Either way, the two steps below are the same.
First Step: List Your Assets
The first step is to list what you own. Many older lawyers still think only of physical assets: real property, bank and checking accounts, stocks, bonds and securities, personal property, vehicles and home furnishings. Lawyers who keep up with technology know that assets are not only physical, so include your digital assets in the inventory as well: websites you earn income from, PayPal and Venmo accounts, cryptocurrency accounts, loyalty points, credit card points, frequent flyer miles, social media accounts, and online subscriptions such as Netflix, Disney+ and Spotify. Even where a subscription is a liability rather than an asset, your executor needs to know about it so it can be cancelled promptly after your death.
If you are leaving a gun, particular procedures apply. It is always better to leave firearms to people who are themselves licensed to own them; guns that are not disposed of correctly end up with the police.
Once you have listed your assets, decide who should receive each one. Think about contingent beneficiaries too, so that if a primary beneficiary is unable to receive the gift, someone you chose takes it instead of the gift failing.
New York also has rules you cannot draft around. You cannot leave your spouse out of the will. If you leave your spouse little or nothing, your spouse can elect under Estates, Powers and Trusts Law § 5-1.1-A to receive $50,000 or one-third of your net estate, whichever is higher. So compute one-third of your net estate and give your spouse at least that much. If that figure seems too high, talk to a lawyer about reducing the estate through trusts and other planning documents; our elective share page explains how the rule works.
Second Step: Draft the Will
The second step is knowing what a will has to contain. A properly drafted New York will covers the following.
| Clause | What it should say |
|---|---|
| Testator details | The testator is the person making the will. State the testator’s address and the intent to make, publish and declare the document as his will. |
| Revocation of prior wills and codicils | Whether or not earlier wills or codicils exist, it is always safe to include a clause revoking them. |
| Legal status, relationships and beneficiaries | Whether the testator is single or married, the names of his closest living relatives, whether he has children who are adopted, natural or born out of wedlock, and whether his parents are alive. |
| Funeral details | If the testator wishes, where the wake and funeral service will be held and where he wants to be buried. |
| Payment of debts | An express direction that all debts, taxes, funeral expenses and expenses of the last illness be paid from the estate. |
| Specific gifts | A particular sum of money, a particular item of personal property (a car, a painting) or anything else of value, including digital assets. Identify each beneficiary by full name and, if possible, contact details. If a specific item has been disposed of before death, the gift generally adeems and the beneficiary receives nothing, subject to some exceptions. |
| Residuary beneficiary | Who receives the remainder of the property not specifically given away. |
| Nomination of executor | The chosen executor and an alternate in case the first cannot serve, together with any specific instructions on the executor’s powers, any bond the executor must furnish, and the executor’s liability in performing his functions. |
| Other provisions | Procedures for beneficiary disputes, a no-contest clause, and similar terms. |
| Date and signature | The will must be dated, and the testator signs at the bottom. |
| Attestation clause | Two witnesses sign with their addresses and contact details, certifying that the testator signed in their sight and presence, declared the instrument to be his last will and testament, and asked them to sign as witnesses, which they did in the testator’s sight and presence. |
| Self-proving affidavit | Optional, but lawyers include an affidavit executed by the witnesses so that they need not testify during the probate proceeding. |
When a will is executed under the supervision of an attorney, there is a presumption that it was validly executed. Having an attorney supervise the signing minimizes the risk that the court will disallow the will at probate. The signing requirements themselves are set out in EPTL § 3-2.1.
Sample of a Will
Now that you know what goes into a will, here is a will form with instructions. As we said above, it is better to consult a lawyer when planning your estate and writing a will. The last thing you want is to do it yourself and have the will disallowed, in which case your property is distributed under New York’s intestacy rules, which may be nothing like what you intended.
If you want to learn more about how to write a will, or would like us to draft one for you, call us at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
