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A will controls what happens to your property after you die. In your will, you name the people who get your property and the executor who will carry out the terms of the will.
A will does not have to be long or complicated.
After you die, the executor will file the will with a probate court. The judge of the probate court will review the will and investigate whether the will meets the basic legal requirements.
Basic Requirements
In New York, the basic legal requirements for a will are:
- A will has to be in writing.
- You have to sign it in front of two witnesses.
- You have to tell the witnesses that it's your will.
- And the two witnesses must place their signatures on your will.
If the judge is satisfied that the will meets the basic requirements, he will approve the will and issue a certificate that allows the executor to carry out your will.
Avoid Common Mistakes in Making a Will
Most of the mistakes that people make involve witnesses. The can be terminal mistakes that cost people their wills.
Don't make the mistake of not having witnesses. Without witnesses, the will is not valid.
Some people think that if you handwrite your will, you don't need witnesses. This is not true. It does not matter if you handwrite your own will. It still needs witnesses.
You have to tell the witnesses that the document they're signing is your will. It's important that the witnesses know they are witnessing a will, so make sure to tell them. Many wills fail when a person the witnesses to sign and don't tell them what they're signing. A person just says "here, sign this". This is a big mistake that can cost you the will.
Some people think "I don't need witnesses, I'll just sign and have it stamped by a notary." That's a mistake. The law requires two witnesses to a will. This is not optional. A notary will not replace witnesses.
Both witnesses have to see you sign.
Good Sections to Add to a Will
It's good to give a will a title. In other words, it's better to write "Last Will and Testament" on top of the will, so that the judge can see that it's a will.
It's also recommended that a will includes an attestation clause. When the will has an attestation clause, the court will usually presume that the will was executed correctly. It usually goes something like this:
"This will was signed, sealed, published and declared by the above-named Testator, to be his last will and testament in our presence, all being present at the same time, and we, at his request and in his presence and in the presence of each other, have subscribed our names as witnesses on the date above written."
It is a good practice to attach a sworn witness statement to the will. That statement is called an affidavit. In the affidavit, the witnesses testify that they saw the person sign the will, that they person told them that it's a will and about other things involving the will . Basically, the things we listed above. This kind of affidavit it saves the executor the hassle of locating the witnesses after your death, and it saves the witnesses the hassle of dealing with the executor after you die.
Where to Keep the Will
After you write your will and sign and witness it, keep the completed will in a safe place where the executor can find it after your death. It may make sense to give the will to the executor as you approach your death. If your attorney is younger or works for a big firm, you may chose for them to keep the will. If a will is lost, you would have to make a new one.
Deciding Whether to Use an Attorney to Make a Will
A basic will is not hard to make. If you do not have a lot of property to leave behind, it may be enough.
If you have some property, it may be worth it to hire an attorney to make your will, just to be safe that all the rules were followed. It's better to have a will made by an attorney because and attorney will certify that the will meets all New York requirements. This would make it more likely that the will is approved by the probate court.
Objections to a Will
The court requires the executor to notify everyone who is affected by the will, so even people who were not close to the will-maker will find out about his death and a will have a chance to notify the court that they object to the will. When people are notified and they are not happy with the will, they can object to it.
When someone objects to the will, the ensuing litigation is called a will contest. During a will contest, the probate court puts a hold on approval of the will. Depending on the situation, the court will eventually approve or deny probate of the will.
If you think that someone may contest a will, then it's even more recommended to make a will through an attorney as opposed to DIY. An attorney will follow all the rules. They will certify your will, making it more likely to be accepted by the judge. And they will certify that you have the mental capacity to make a will. This is most important when you are leaving relatives out of your will.
Wills Can be Complicated
There are many complications and details that are beyond the scope our article. Most wills do get admitted to probate. A will that was made without an attorney has a higher chance of being denied probate. Making a legal document is best done with an attorney, especially in high-stakes situations where life savings are involved. Overall, we do not recommend making a will by yourself unless you have a small-sized estate. There is a lot of material online, but nothing can replace an attorney when making a will
If you want to look up the requirements for making New York will directly, you can see Estates, Powers and Trusts Law Section 3-2.1. It does not cover all of the details, but it's a good place because most of the rules relating to wills in New York come from this law.
Please be mindful that this article is not legal advice. No article can substitute an attorney. And no phone call to an attorney can substitute an attorney being present at a will execution, making sure the will is drafted and executed correctly, and certifying the will.
I hope this article has been helpful and I wish you all the best in your journey into New York wills. If you would like a consultation about your will or a will that you are involved with, you can call me at 212-233-1233 or send me an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise 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].
